No. 95-2852



United States of America,   *
                                      *
                    Appellee,         *
                                      *   Appeal from the United States
         v.                           *   District Court for the
                                      *   Western District of Missouri.
Darrell B. Caldwell,                  *
                                      *
                   Appellant.         *



                       Submitted:    February 14, 1996

                       Filed:   July 8, 1996


Before WOLLMAN, HEANEY, and BRIGHT, Circuit Judges.



HEANEY, Circuit Judge.


     On June 16, 1994, Darrell Caldwell was charged in a four-count
indictment with conspiracy to manufacture and distribute marijuana (Count
I), manufacturing marijuana (Count II), and possessing marijuana with the
intent to distribute (Count III); the indictment also included one count
of criminal forfeiture (Count IV).    On September 6, 1994, Caldwell entered
into a plea agreement with the government.     In exchange for pleading guilty
to Count III and agreeing to pay $5,000 cash in lieu of forfeiting the real
property named in Count IV, the government dismissed the remaining two
counts against Caldwell and promised to substantially reduce the charges
against his wife, who was also named in the indictment.


        On September 26, 1994, Caldwell moved the court to withdraw his
guilty plea.   While that motion was pending before the district court,
Caldwell remitted $5,000 to the United States Marshal
Services in satisfaction of the forfeiture portion of the plea agreement.
The government accepted the payment.            On December 9, 1994, the district
court granted Caldwell's motion to withdraw his plea.           The government tried
Caldwell on Counts I, II, and III but did not charge criminal forfeiture.
On February 16, 1995, a jury convicted Caldwell on all counts.              On July 6,
1995, the court sentenced him to 360 months imprisonment, a $10,000 fine,
and five years of supervised release.


      Caldwell appeals his conviction and sentence.             He alleges multiple
errors, including: (1) the court improperly limited his cross-examination
of government witnesses, (2) evidence should have been suppressed due to
the insufficiency of a search warrant, (3) his convictions violate the
prohibition against double jeopardy because they follow a prior forfeiture,
and   (4)   the    court   miscalculated   his    sentence    under   the   sentencing
guidelines.       We affirm Caldwell's conviction and remand the case to the
district court for resentencing.


                                           I.


      Caldwell contends that the district court improperly limited his
cross-examination of two government witnesses.               We review the district
court's decision to limit cross-examination for an abuse of discretion.
United States v. Balfany, 

, 583 (8th Cir. 1992).            If the record
establishes a violation of the rights secured by the Confrontation Clause
of the Sixth Amendment, we must determine whether the error was harmless
in the context of the trial as a whole.          Delaware v. Van Arsdall, 

, 678-79 (1986).


      A.    Cross-Examination of Trooper Loring


      Trooper Loring, an investigator with the Missouri State Highway
Patrol, was one of the officers involved in the execution




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of a search warrant at Caldwell's home and surrounding property.                      The
search warrant came at the culmination of an investigation launched in
response to the discovery of large numbers of marijuana plants growing on
property adjoining Caldwell's.                 As part of his duties, Loring filed
a report on the execution of the search warrant.


     In his trial testimony, Loring offered several significant details
about the search warrant execution that he had not included in his report.
At least twice during cross-examination, Caldwell's lawyer attempted to
question Loring about his failure to note those details in his report.                The
court sustained the government's objections to the questions accepting the
government's position that none of the statements in the report were
inconsistent with Loring's trial testimony, that he had been under no duty
to record every detail in the report, and that the line of inquiry was
argumentative.


     We     find   no   abuse   of   discretion   in   the   trial    court's    rulings.
Caldwell's cross-examination of Loring was long and thorough.                   The court
reasonably determined that there was no objective basis for the defense's
implicit argument that the damaging details, if true, would have been in
Loring's report.        Having so determined, it was equally reasonable to
curtail the cross-examination with respect to the omission of those details
from the report.


     B.     Cross-Examination of Co-Defendant Jones


     Gary Jones, Caldwell's first cousin, was indicted with Caldwell in
Count I.    Jones made a deal with the government whereby he pleaded guilty
to a reduced misdemeanor charge in exchange for his testimony against
Caldwell.


     On cross-examination, Jones acknowledged that he had used marijuana
daily over a period of approximately fifteen years.              He




                                           3
also admitted his involvement in the conspiracy to manufacture over 1,000
marijuana plants.           Caldwell's lawyer attempted to establish that Jones
would have faced a minimum ten-year sentence had he not been permitted to
plead to the lesser offense in exchange for his testimony.                 The court,
however, disallowed any such inquiry beyond establishing that the penalty
cap for a misdemeanor offense is one year and that a felony charge could
call for "time in the penitentiary."             The court's rationale for limiting
the   evidence    was   that     Jones'    potential   sentence   before   becoming   a
cooperating witness was a collateral matter and could not be determined
with precision.


      The district court's limitation constitutes an abuse of discretion.
Because the bias of a witness is always relevant, the penalty to which
Jones would have been subject had he not testified against Caldwell cannot
be characterized as collateral.           Moreover, the minimum sentence that Jones
originally faced was clear:          the conspiracy charge against Jones carried
a statutory minimum sentence of ten-years imprisonment regardless of the
application      of   any    sentencing    guideline   provision.    See   21   U.S.C.
§ 841(b)(1)(A)(vii) (1993).          A district court is given wide latitude to
limit cross-examination to avoid witness harassment, prejudice, confusion
of the issues, or unnecessary repetition.              Van 

.
No such concerns, however, warranted the court's ruling in this case.              The
evidence Caldwell sought on cross-examination was relevant and accurate.
Therefore, we hold that the district court's exclusion of the evidence
violated Caldwell's right to confront the prosecution witness.


      We must next decide "whether, assuming that the damaging potential
of the cross-examination were fully realized, [we can] nonetheless say that
the error was harmless beyond a reasonable doubt."            Van 

.   We consider multiple factors, including the importance of Jones'
testimony to the overall case against Caldwell; whether it was cumulative,
the




                                             4
presence of corroborating or contradicting evidence, the extent of cross-
examination      otherwise       permitted,    and      the    overall       strength   of     the
government's case.        

jury did not learn the extent of the
break Jones received for cooperating, Jones testified that his sole reason
for testifying was to obtain the reduced misdemeanor charge.                       In addition,
even if we entirely disregard Jones' testimony, the government's case
against       Caldwell--which      included       the    defendant's         own    inculpatory
statements--was strong.           After reviewing the record in light of all the
foregoing factors, we conclude that the district court's error was harmless
beyond a reasonable doubt.


                                              II.


        Caldwell's next claim of error is that the warrant                     authorizing the
search of his property lacked probable cause.                    Prior to trial, Caldwell
moved    to    suppress    the   evidence     obtained        during   the    search.        After
conducting a suppression hearing, a magistrate judge upheld the search
warrant and found that the affidavit established probable cause to believe
that marijuana and other drug paraphernalia would be found on Caldwell's
property.      The district court adopted the magistrate's finding.                  On appeal,
Caldwell renews his assertions that the sheriff who led the investigation
and who was the sole affiant for the search warrant application made
numerous misrepresentations and omissions of fact.


        Looking at the totality of circumstances, see Illinois v. Gates, 

, 238 (1983), we affirm the district court.                    The facts reported in
the search warrant affidavit supported the issuance of the search warrant.
Moreover, we find no fundamental inconsistencies between those facts
alleged and the sheriff's testimony at the suppression hearing.                                The
district court properly denied Caldwell's motion to suppress evidence.




                                              5
                                        III.


     Caldwell also challenges his conviction under the Double Jeopardy
Clause of the Fifth Amendment.         The issue arises in an unusual factual
context.       In Caldwell's original agreement with the government, he pleaded
guilty to the Count III possession charge and the Count IV criminal
forfeiture charge.         As part of the agreement, the parties reached a
forfeiture settlement whereby Caldwell would pay the government $5,000 and
he and his wife would retain the real property named in the forfeiture
count.   While his subsequent motion to withdraw the plea was pending before
the district court, Caldwell nonetheless remitted the $5,000.        The court
later permitted Caldwell to withdraw his plea and the matter was set for
trial on Counts I, II, and III.        The government did not pursue criminal
forfeiture at trial.      Apparently, all parties assumed that the forfeiture
settlement remained effective after Caldwell withdrew his plea.1


     In his motion for a new trial following sentencing, Caldwell raised
his double jeopardy claim for the first time in two sentences:          "[T]he
resolution of Count Four of the Indictment is




           1
        At oral argument, the government explained that it had
believed that the forfeiture could exist in some form of suspended
animation until a jury conviction on the substantive counts revived
the underlying basis for forfeiture. This concept, though novel,
utterly lacks legal support.     For his part, Caldwell not only
acquiesced to the forfeiture settlement, he insisted on its
validity. In his response to the probation office's preliminary
presentence investigation report Caldwell asserted:

     The report alleges that Count Four of the
     Indictment remains pending.      The record will
     clearly show that the judge specifically did not
     set aside Count Four.    The $5,000 fine has been
     paid to the United States.    Count Four has been
     disposed of and is, therefore, moot.

(Letter Objections to Presentence Investigation Report from Brown
dated 4/25/95 at 1.) The government's mistake, however, is in no
way lessened by the fact that Caldwell joined in it.

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double jeopardy to any or all of the three counts in the Indictment.
Defendant should be discharged as to such counts."               (District Ct. R. at
310.)    The court denied the motion.             With respect to the double jeopardy
claim,       the court concluded that the claim lacked merit because the
government had yet to enter a final order of forfeiture in the case.
(District Ct. R. at 333.) Caldwell appeals that decision.


        We    agree   with   the   district   court's    conclusion   but   reject   its
reasoning.      Double jeopardy does not even potentially come into play until
a defendant has first been put in jeopardy.             Crist v. Bretz, 

,
32-33 (1978).         Despite the complicated course of negotiations, plea, and
withdrawal, the resolution of this issue is quite simple.               The forfeiture
settlement was part of the plea agreement.                When Caldwell withdrew his
plea, the entire agreement--including the forfeiture settlement--became
void.    The slate, therefore, had been wiped clean.


        Thus, at the time of trial, no agreement existed between Caldwell and
the government.          The mere fact that Caldwell remitted $5,000 and the
government accepted the funds does not create an implicit plea agreement.
The government was entitled to try Caldwell on all counts in the indictment
including those it had dismissed under the plea agreement.                  See Ehl v.
Estelle, 

, 172 (5th Cir. 1981), cert. denied, 

(1982); United States v. Wells, 

, 229 (9th Cir. 1970).
Moreover, the government was no longer bound by its promise in the plea
agreement not to file any additional criminal charges arising out of the
facts in the case.        Caldwell was tried and convicted only once.        His double
jeopardy claim is misplaced.


        Caldwell raises several other claims for reversal.            Each lacks merit
and none warrants discussion in this opinion.




                                              7
                                      IV.


     Caldwell also appeals his sentence.       On July 6, 1995, the district
court sentenced him to concurrent sentences of 360 months on Count I, 360
months on Count II, and 240 months on Count III.     Caldwell challenges both
the court's offense level calculation and the imposition of a two-point
sentencing enhancement for obstruction of justice.


     A.   Offense Level Calculation


     The district court determined that Caldwell's offense level was 38
based on the quantity of marijuana involved in the case.      On two separate
occasions, authorities seized a total of 157 pounds (71.2 kilograms) of
processed marijuana and 6,037 marijuana plants.     At the time of Caldwell's
sentencing, the guidelines provided that one marijuana plant was equivalent
to one kilogram of processed marijuana.     U.S.S.G. § 2D1.1(c) (1994).   Thus,
the court found that the total quantity of marijuana seized was equivalent
to 6,108.2 kilograms.    In calculating the total amount of drugs, the court
credited co-conspirator Jones' testimony that he had purchased marijuana
from Caldwell over a period of fifteen years, but limited its calculation
to the five-year period that could have been charged in the indictment
under the statute of limitations.   In other words, using the 6,108.2 figure
as an annual base, the court multiplied that amount by five for a total of
30,541 kilograms.   The corresponding offense level of 38 was the highest
possible under the applicable guideline.       U.S.S.G. § 2D1.1(c)(1) (1994)
(Drug Quantity Table).


     We agree with Caldwell that the district court's extrapolation
amounted to clear error.   See United States v. Bieri, 

, 817 (8th
Cir.) (applying clearly erroneous standard of review to      district court's
determination of drug quantity), cert. denied, 

(1994).
There is simply no basis in the record for the




                                      8
court's conclusion that because a certain quantity of drugs was seized from
Caldwell in 1993, the same quantity of drugs could be attributed to him for
each of the preceding four years.


       At trial Jones testified that he had purchased marijuana from
Caldwell over a fifteen-year period.     When pressed on the frequency and
quantity of the purchases, Jones responded that approximately once a month
he purchased anywhere from one ounce to three pounds.   (Trial Tr. at 397.)
Even   if   the court used the largest figure in Jones' testimony for
sentencing purposes, that would still amount to only three pounds, twelve
times a year, for five years, or 180 pounds (81.65 kilograms).


       When the court calculates the amount of drugs involved in this case
at resentencing, it may include the amount of marijuana seized by the
government (674.9 kilograms), the amount of marijuana Jones testified to
purchasing from Caldwell (anywhere from a minimum of 1.7 kilograms to a
maximum of 81.65 kilograms), and any other amounts linked to Caldwell by
something more than pure speculation.
       In addition, the government concedes that Caldwell's case    must be
remanded to the district court for resentencing in light of Amendment 516
to the sentencing guidelines.   Amendment 516, effective November 1, 1995,
reduces the equivalency figure for a marijuana plant by tenfold:    When the
actual weight of the usable marijuana is unknown, each plant is now treated
as the equivalent of 100 grams or marijuana, rather than one kilogram.
U.S.S.G. § 2D1.1(c) (1995).   The guidelines specifically permit retroactive
application of Amendment 516.    U.S.S.G. § 1B1.10, p.s. (1995).2



       2
        Section 1B1.10 provides in relevant part:

     Where   a   defendant   is   serving   a  term   of
     imprisonment, and the guideline range applicable to
     that defendant has subsequently been lowered as a
     result of an amendment to the Guidelines Manual
     listed in subsection (c) below, a reduction in the
     defendant's term of imprisonment is
authorized under 18 U.S.C. § 3582(c)(2).

U.S.S.G. § 1B1.10(a), p.s.    Subsection (c) specifically lists
Amendment 516. The policy statement further instructs:

                                     9
Thus, under the amended guideline provision, the weight of the plants the
government seized from Caldwell would equal 603.7 kilograms.   When combined
with the 71.2 kilograms of processed marijuana seized, the total would be
674.9 kilograms.   That amount alone--without the improper extrapolation--
would reduce the offense level to 28.


     B.    Obstruction of Justice


     Pursuant to guideline section 3C1.1, the court added two levels to
Caldwell's base offense for obstruction of justice because it found that
Caldwell attempted to intimidate a witness.   We review the court's finding
of facts under the clearly erroneous standard.   United States v. Adipietro,

, 1479 (8th Cir. 1993).     We find no error in the court's
application of the enhancement and reject Caldwell's argument as specious.


                                CONCLUSION


     In sum, we affirm Caldwell's conviction.    We vacate his sentence and
remand to the district court for resentencing in accordance with this
opinion.




     In determining whether, and to what extent a
     reduction in sentence is warranted for a defendant
     eligible for consideration under 18 U.S.C. §
     3582(c)(2), the court should consider the sentence
     that it would have imposed had the amendment(s) to
     the guidelines listed in subsection (c) been in
     effect at the time the defendant was sentenced.

U.S.S.G. § 1B1.10(b), p.s.     We have noted that although the
guidelines permit retroactive application of certain amendments,
resentencing is within the discretion of    the district courts.
United States v. Coohey, 

, 101 (8th Cir. 1993).

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A true copy.


   Attest:


        CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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