Donald Craig Scroggins appeals his conviction and sentence for conspiracy to possess with the intent to distribute cocaine hydrochloride and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. Scroggins was sentenced to life imprisonment and five years of supervised release. We vacate Scroggins's sentence and remand to the district court for further proceedings as explained below.

Earl Buchanan, a man informally adopted by defendant Scroggins, was arrested in March 2001 for drug trafficking. A few days after Buchanan's arrest, Scroggins told William Green, a Special Agent with the DEA, that he wanted to know how he could help in order to benefit Buchanan. Green testified at trial that over the next few days, Scroggins met with Green multiple times and discussed his previous drug trafficking experience, claiming that he was doing this to assist Buchanan. During this time, Scroggins was already under investigation. Scroggins offered to set up a controlled buy with David Sosa, with whom Scroggins claimed he had been drug dealing since late 1999 and early 2000. Green testified that Scroggins told him that he had purchased one to two kilograms of cocaine from Sosa every two weeks over a period of a few months. Scroggins later told Green that he had set up a ten kilogram cocaine and 200 pound marihuana deal with Sosa thirty days before even speaking with Green and that this was going to be his last deal and that it was going to "set his retirement." Although Scroggins offered and supposedly attempted to set up the deal with Sosa, he was unable to do so. In April 2002, Scroggins was arrested at his home, where officers seized drug paraphernalia.

Scroggins, along with John Calvin Bryant, was subsequently charged in a superseding indictment. Count 1 charged Scroggins and Bryant with conspiring, with each other and with other unnamed known and unknown persons, from about October 1998 through about March 2001, to possess with the intent to distribute five kilograms or more of cocaine hydrochloride (cocaine powder) and fifty grams or more of cocaine base (crack cocaine) in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count 2 charged Scroggins (alone) with distribution and aiding and abetting the distribution of cocaine powder on or about November 15, 2002, in violation of 21 U.S.C. § 841(a)(1).1 At trial, one of the key witnesses against Scroggins was Buchanan.2 Buchanan testified that he had been involved in drug trafficking with and for Scroggins from 1998 until Buchanan was arrested in March 2001. Buchanan testified that Scroggins "financially supplied" the drugs, Buchanan sold the drugs for Scroggins, and they trafficked in both powder and crack cocaine. Buchanan's testimony included amounts of cocaine sufficient for the jury to find that Scroggins had been involved in a conspiracy involving at least five kilograms of cocaine powder and at least fifty grams of crack cocaine.

The jury found Scroggins guilty of count 1 and not guilty of count 2 and acquitted Bryant. Scroggins then timely filed a motion for new trial, focusing on two witnesses — Freddie Young and James Thomas, confidential informants for the government — who, although subpoenaed by Scroggins, did not show up at trial to testify allegedly because of government interference. At the new trial hearing, these witnesses gave testimony indicating that each had received a telephone call from the government that intimidated them from testifying at trial. They also gave substantive testimony, which essentially would have served to impeach Buchanan and add evidence indicating Scroggins was not a drug dealer. Following the hearing, the district court denied the motion. Scroggins was subsequently sentenced to life imprisonment and five years of supervised release and was given a $100 special assessment.

Scroggins raises several issues on appeal. We address each issue in turn.

Scroggins first argues that the fact that two witnesses whom he had subpoenaed, Freddie Young and James Thomas, did not appear to testify at trial constitutes reversible error for several reasons. Scroggins asserts that such errors include: 1) the district court's denial of his motion for new trial based on either governmental interference with his witnesses or the "interest of justice," 2) the failure of the district court to issue bench warrants compelling the two witnesses to appear, and 3) the ineffectiveness of his trial counsel in failing to seek a continuance following the nonappearance of the two witnesses.

Following trial, Scroggins moved for a new trial pursuant to Fed. R. Crim P. 33, asserting that the government intimidated two material witnesses from testifying. Scroggins asserted in the motion that the "interest of justice" required that he be granted a new trial. The district court treated Scroggins's motion as being based on newly discovered evidence and governmental interference with witnesses, even though Scroggins had not expressly based his motion on newly discovered evidence.3 The district court then denied the motion, finding that there was no credible evidence that the government prevented either of Scroggins's witnesses from testifying at trial.

On appeal, Scroggins argues that the district court's finding that the government did not interfere with his witnesses is erroneous. Scroggins further contends that even if the district court was correct in finding that the government did not interfere with the witnesses, his motion still should have been granted based on the interest of justice. Regarding the alleged government interference with witnesses, we disagree with Scroggins and hold that the district court's finding of no interference is not clearly erroneous. Nevertheless, we agree with Scroggins that the district court should have analyzed the motion as being based on the interest of justice and that in appropriate circumstances the district court does not always need to find a specific legal error in order to grant a motion for new trial made in the interest of justice. We therefore remand the case to the district court to analyze Scroggins's new trial motion in the interest of justice.

We review the denial of a motion for new trial for abuse of discretion. United States v. Villarreal, 324 F.3d 319, 325 (5th Cir.2003).

The district court "may ... grant a new trial if the interest of justice so requires." Rule 33(a). A motion for new trial "is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial... should be invoked only in exceptional cases...." United States v. Robertson, 110 F.3d 1113, 1120 n. 11 (5th Cir.1997). "Where a court finds that a miscarriage of justice may have occurred at trial, ... this is classified as such an `exceptional case' as to warrant granting a new trial in the interests of justice." Id. A Rule 33 motion "grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict ... or within such further time as the court sets during the 7-day period." Rule 33(b)(2).

Scroggins asserts that the district court's finding that he had not established governmental interference with the appearance of his witnesses, Young and Thomas, is clearly erroneous, and that, since the district court found their testimony material, this court should itself order a new trial. Having reviewed the record, we hold that the district court's finding is not clearly erroneous.

The Sixth Amendment guarantees a defendant "the right to present witnesses to establish his defense without fear of retaliation against the witness by the government." United States v. Bieganowski, 313 F.3d 264, 291 (5th Cir.2002) (internal quotations and citations omitted). Further, "the Fifth Amendment protects the defendant from improper governmental interference with his defense." Id."To make a showing that the government has infringed on [these] right[s], the defendant must show that the government's conduct interfered substantially with a witness's free and unhampered choice to testify." United States v. Thompson, 130 F.3d 676, 686 (5th Cir.1997) (internal quotations and citations omitted). As the movant, Scroggins bore the burden of proving, by a preponderance of the evidence, that the government substantially interfered with his witnesses and, therefore, that a new trial is justified. See Thompson, 130 F.3d at 687; cf. United States v. Soto-Silva, 129 F.3d 340, 343 (5th Cir.1997) (new trial on juror disqualification).

Even though we review the denial of a motion for new trial for abuse of discretion, Villarreal, 324 F.3d at 325, "[b]ecause the existence of substantial interference is a factual question, we may reverse the trial court's decision [that there was no interference] only if it is clearly erroneous." Thompson, 130 F.3d at 686-87 (internal quotation and citations omitted). In considering a motion for new trial, "[t]he trial judge may weigh the evidence and may assess the credibility of the witnesses." Robertson, 110 F.3d at 1117.

Scroggins argues that Young and Thomas did not appear to testify at trial because of governmental interference. Scroggins asserts that these witnesses would have given exculpatory testimony and would have impeached Buchanan, a key government witness. Nevertheless, even though it had "already determined ... that the testimony Young and Thomas were to provide [was] material," the district court found that Scroggins failed to prove by a preponderance of the evidence that the government had interfered with the ability of these witnesses to testify at trial4 and, therefore, denied the motion for new trial. We conclude that this finding is not clearly erroneous.

At the hearing on the new trial motion, Young testified concerning actions by Agent Lee J. Scott, a Shreveport police officer working with the DEA, that could potentially be governmental interference with a witness. Young testified that on Tuesday, the day before he was to testify at trial, Scott called him. Scroggins asserts that Scott made three statements that kept Young from testifying: 1) because his subpoena was from the defense, Young did not need to show up to testify; 2) if Young did show up to testify, he would be arrested; and 3) if Young testified in court, he would be prosecuted for perjury.5

Young testified twice during the new trial hearing: on December 19, 2002, and on January 23, 2003.6 Throughout his testimony, the content of what Young stated varied significantly. While at times his testimony supported a finding of governmental interference, at other times it clearly did not.

Young's first discussion of the Scott phone call included no mention of the "who issued the subpoena" discussion. Further, the first time Young was asked about Scott's discussion of who issued the subpoena yielded no clear evidence that Scott suggested to Young that he did not need to show up at court if the subpoena was from the defense:

"[Scroggins's Counsel]: Did Lee J. Scott ever tell you anything about whether or not you got subpoenas from the defense or the prosecutor and what you had to do about them?

[Young]: He just asked me when I said I got subpoenaed by the defense, well, he said —

[Scroggins's Counsel]: What did he say after that?

[Young]: Well, he just told me, he say, `Well, you ain't get subpoenaed by Liddell [Smith7].'

[Scroggins's Counsel]: By Liddell?

[Young]: They said, `You ain't get subpoenaed by Liddell.' And I said, `I got subpoenaed by defense.' That was it.

[Scroggins's Counsel]: Did he tell you that if you got subpoenaed by the defense, you didn't have to come?

[Young]: No. He just told me this — he said, `You got subpoenaed by the defense or Liddell?' I said, `The defense.' He said — he just pretty much said, `Well, you ain't get subpoenaed by Liddell.' He kept saying, `Well, Liddell didn't do it.'

THE COURT: Wait. You're going to have to slow down, sir. I'm having difficulty following.

[Young]: He said, `Liddell did not subpoena you.' That's what he said.

[Scroggins's Counsel]: So he said, `So, if you didn't get subpoenaed by Liddell ...,' what?

[Young]: He just left it blank." (emphasis added).

This exchange provides no compelling evidence that Scott led Young to believe — intentionally or unintentionally — that he did not need to respond to a defense subpoena.8

It was not until his January testimony that Young gave any meaningful support to the allegation that Scott told him that he did not have to show up if the defense had issued the subpoena. This time, in response to an unrelated question, Young testified that Scott had told him that because the subpoena was from the defense, he did not have to show up at court; however, this portion of Young's testimony is not a model of clarity or directness and is markedly different from Young's first testimony about the "who issued the subpoena" discussion. While during his second testimony (a month after his first testimony and not contemplated at the time Young concluded his first testimony) Young claimed that Scott told him that "[y]ou ain't got to come ... because we ain't [issuing the subpoena]," he originally testified that Scott simply said that the government "did not subpoena you" and said nothing more. The differences between the two versions and the lack of a straightforward and clear answer by Young during his second testimony cast doubt over his second version.

The essence of Scroggins's argument concerning the "arrest warning" is that Scott's phone call was a "veiled threat" that if Young showed up to testify, he would be arrested because of an outstanding warrant with his picture on it waiting for him at the federal courthouse door. In this case, there actually was such a warrant for Young at the courthouse door.9

Young's testimony is clear that he learned about the specific warrant on Wednesday morning, the day after Scott's call and the day Young was to testify, from Otis Litton, an employee of the Caddo Parish Sheriff's Department, someone with no apparent connection to Scroggins's case whatsoever,10 and not from Scott.11

Even though Young did not learn about the specific warrant from Scott, he testified on cross examination that Scott stated that he would be arrested if he showed up to testify.12 However, as pointed out by the government and the district court during his testimony, Young's testimony changed somewhat from the first time he talked about the Scott phone call in his direct examination. On cross examination he added: Scott's persistent laughing about the potential arrest, Scott's statement that "you ain't gonna make it [to the courthouse] anyway [to testify]," Scott's knowledge of a specific warrant for Young's arrest, and Scott's insistence that Young would be arrested if he showed up to testify — not just if he had an outstanding warrant. Nonetheless, even with these changes, Young twice confirmed during cross examination that Scott's warning was conditional on there being an outstanding warrant, not merely on whether Young testified.13 Young also did not testify that Scott told him about the specific warrant, but only that Young believed that Scott knew of the warrant.

In spite of Scroggins's contentions, Young's testimony supports the following findings, none of which favor a finding of governmental interference: 1) Scott never expressly stated that he knew of a specific warrant for Young's arrest; 2) Scott's arrest warning was conditional on the existence of an outstanding warrant for his arrest; and 3) Young learned of the specific warrant for his arrest after Scott's call and from a person not shown to be connected with the federal government or Scroggins's case.14

Young's testimony in December made no mention at all of any "perjury warning" from Scott. That testimony did not come up until Young's January testimony. Young then brought this issue up in response to an unrelated question:

"[Scroggins's Counsel]: So the only one that told you you didn't have to come if the defense subpoenaed you was Lee J. Scott?

[Young]: Yeah, because he told me on the phone that — started laughing, saying, `The DA gonna get you for perjury.' I said, `Perjury for what?' He talk about, `How much money John paid you?' I told him, `John ain't paid me nothing.' And he said: `Ha. Ha. You sure?' I said, `Yeah, I'm sure.' Exact words, he said, `They'll get you for perjury.'

[Scroggins's Counsel]: And did he tell you about the tape?15

[Young]: No. He told me that they were gonna get me for perjury. He said, `Liddell gonna get you for perjury.'

[Scroggins's Counsel]: Did you ask him why?

[Young]: I kept asking him why. He wouldn't tell me. But he told me — he said that's what gonna happen. He kept telling me that's what gonna happen, you know, they gonna get me for perjury. He wasn't telling me about the tape, but he said, `They gonna get you for perjury.'"16

Young later confirmed, however, in response to questioning by the district court and the government, that the perjury warning was conditional — if he lied, he would get prosecuted for perjury:

"[Gov't]: So did Lee Scott tell you anything else other than if you had a warrant, you'd be arrested?

[Young]: And about you, you gonna get me for perjury.

[Gov't]: If you lied?

[Young]: Yeah. And he said — nah, he said something like — he said, `How much money John [Bryant] paid you?' I said, `John ain't' —

THE COURT: What?

[Young]: He said, `How much money John Bryant paid you?' I said, `John ain't paid me no money.' AndI — I explained to him and told him, and everybody know I worked on Donnie's company at A-1 Painting. Even Agent Will Green know that. I worked with Donnie [Scroggins]. And I told him Donnie owe me money right then, because I supposed making — Donnie got put off the job at Fairgrounds Stadium. We did Independence Stadium.

THE COURT: Wait a minute. Wait a minute. Stop. All you got asked was how much money — you'd get prosecuted for perjury if you lied?

[Young]: Yes." (emphasis added).

That the perjury warning testimony did not come up at all until Young's January testimony and that Young confirmed that the warning was "if he lied," raises meaningful questions about the testimony and the effect of the warning on Young's decision not to appear at court.

The district court found that "there is no credible evidence that the prosecutors had anything to do with Young's failure to appear to testify at trial."17 The district court specifically found that Young's interpretation of the alleged conversation with Scott about who issued the subpoena was "not credible" and most likely came from a "misunderstanding on Young's part."18 It also found that Scott did not discuss or mention the warrant with Young. Although the district court did not make a specific finding as to Scott's supposed perjury warning, the finding of no credible evidence of governmental interference sufficiently indicates that it did not find this allegation to be credible.

The district court's determination that it was not shown by a preponderance of the credible evidence that the government caused Young's failure to appear is not clearly erroneous. The nature and content of Young's testimony — adding more information during his January testimony, being somewhat inconsistent in relating the content of the conversation, confirming the government's version of events, but continuing to repeat the defense's version — support the district court's determination that Young's account was not credible and that at the least he misunderstood Scott. Further, Young's testimony clearly reflects that he simply did not want to get involved in the case by testifying.19

Concerning the perjury warning, Scroggins relies on United States v. Vavages, 151 F.3d 1185 (9th Cir.1998). In Vavages, the Ninth Circuit held that a statement that in effect told the witness that if she testified, she would be prosecuted for perjury constituted government interference with the witness:

"The prosecutor combined a standard admonition against perjury — that Manuel could be prosecuted for perjury in the event she lied on the stand — with an unambiguous statement of his belief that Manuel would be lying if she testified in support of Vavages' alibi.... It does not require much of an interpretative gloss on the prosecutor's warning to conclude that unless Manuel changed her testimony or refused to testify at all, she would be prosecuted for perjury and suffer any attendant consequences." Id. at 1190.

It is not the law that the "government cannot tell a witness of the consequences of committing perjury." Thompson, 130 F.3d at 687. So far as Scott merely informed Young of the consequences of lying, that is not improper:

"Granted, the government told the witnesses that they had to testify truthfully and, if not, they would go to jail. That procedure, however, even if carried out in a caustic manner, is no cause to dismiss the indictment against the defendants. There is nothing wrong with the government informing witnesses of the consequences of breaking the law." Id. (emphasis added) (internal quotations and citations omitted).

Because we believe that the district court found that Young's perjury warning story was not credible and because this finding is not clearly erroneous, Vavages is distinguishable.20

In addition to the reasons given thus far for sustaining the finding of no governmental interference, Young's testimony also supports a finding that Scott's call did not intimidate Young enough to keep him from going to court. The day after the discussion with Scott, and the day he was to testify in court, Young was in a discussion with Litton of the sheriff's department concerning his outstanding warrant. According to his discussion with Litton, Young still planned to go to court — in spite of the Scott phone call that he had already received.21 Young's testimony clearly supports a finding that it was the discussions with the sheriff's department, not the discussion with Scott, that persuaded him not go to federal court because of his fear of being arrested.22

In summary, we are unable to conclude that the district court's finding with respect to Freddie Young and governmental interference is clearly erroneous.

Before Thomas was to testify at trial, he received an anonymous message supposedly from law enforcement stating that if he showed up at the courthouse to testify, he would be arrested. Scroggins contends that this call constituted governmental interference with a witness.

Early in the morning of Tuesday or Wednesday,23 Wednesday being the day he was to testify, Thomas received a voice mail on his cell phone from a number with a 676 prefix. Although the call came in the morning, he did not check his messages until the night of the call. The message told him of a warrant for his arrest waiting at the federal courthouse.24 Thomas did not save the message.

Thomas also testified that the DEA agents with whom he had worked had contacted him before on his cell phone. He had given his number to five different agents, three of whom had called him on his cell phone (Russell Sarpy, Green, and Scott); the agents' calls came from a 676 number.25 Thomas's testimony indicates these three agents were the only agents who had called him and that the only calls he received from a 676 number were from narcotics agents. Nevertheless, Thomas did not recognize the voice on the message and could not say that it was from any of the agents to whom he had talked. He also did not know that the call was from a narcotics agent; he merely testified that the call "sounded like a law enforcement" because "who else would call [him] and tell [him] something like that?" Therefore, his belief that the call was from "law enforcement" was based on the 676 prefix and the argument that "who else would have done it?"

Thomas later testified that on Tuesday night, after he had heard the message, he spoke to the secretary to Victoria Cranford, Scroggins's counsel, to tell Cranford about it. Cranford never called him back; however, Thomas could not recall if he specifically told the secretary about the mysterious message.26 On Tuesday evening Thomas also called and left a message on the answering machine of David Shanks, the defense team's investigator; however, he could not recall what, if anything, he specifically told Shanks about the call. Shanks also did not call him back. Therefore, it is unclear whether Thomas specifically told anyone of the call before the end of trial.27

Thomas testified that after receiving the message, he decided not to show up to testify because of his fear of being arrested and being "messed over" — being put in a situation that he could not get out of — by the government.

Nevertheless, in spite of Thomas's testimony that he did not show up at trial at least in part because of the phone call,28 it appears that he was already very reluctant to show up. Thomas simply did not want to get involved in the case: "[Gov't]: And why did it take you so long to go down and talk to [Scroggins's counsel before trial]?29

[Thomas]: Because I really didn't want to get involved.

[Gov't]: And why didn't you want to get involved?

[Thomas]: Because I just didn't want to — after all — after I did that last buy [with Earl Buchanan]30, I just wanted to put it all behind me." (emphasis added).

Thomas eventually decided to go to the office of Scroggins's counsel about one week before trial. Thomas also appeared at the office of Scroggins's counsel on Monday, the first day of trail, and was told to go to the courthouse on Wednesday to testify.

Even though Thomas appeared at the office of Scroggins's counsel on Monday, his testimony supports a finding that he did not plan to go to court — independent of the anonymous phone call. In his testimony, Thomas volunteered that he was not going to show up anyway because he did not want to get involved. It was only after persistent and lengthy questioning by the district court that Thomas did state again that the phone call had contributed to his decision to not appear at court:

"[Gov't]: When did you become afraid of the police?

[Thomas]: When I started hearing [the mysterious message], that was enough for me not to come, period.

[Gov't]: And how long —

[Thomas]: I wasn't — anyway, I wasn't planning on coming anyway, because I really didn't want to get involved.

[Gov't]: So —

THE COURT: Excuse me. Say that again?

[Thomas]: I was not going to come anyway, because I really didn't want to be involved.

[Gov't]: Have you ever been threatened by Mr. Scroggins or any of his family member?

[Thomas]: No, sir.

[Gov't]: Did you ever tell agents that you had been threatened by —

THE COURT: Okay, stop. I'm going to explore it. If you're not going to, I'm going to.

You said you were not going to come anyway, because you didn't want to be involved?

[Thomas]: Yes, sir. WhenI — when I made that deal —

THE COURT: What deal?

[Thomas]: With Russell Sarpy. The deal was that I wouldn't have to testify in court.

THE COURT: Okay. But we're talking about coming to the trial and testifying.

[Thomas]: Yes, sir.

THE COURT: Are you telling me that you were not going to come to testify whether or not somebody called you and told you that you were going to be arrested if you did come? Did you follow that?

[Thomas]: Sir?

THE COURT: Did you understand the question?

[Thomas]: Say — repeat the question.

THE COURT: Okay. You just told me that you were not going to come to testify anyway. What I'm trying to find out is whether or not this phone call that you got from the 676 number had anything to do with your not coming.

[Thomas]: No. That Monday I came, and she told me to come back. She was going to call me to come back that Wednesday. But when I got that phone call, I wasn't going to come, because I didn't want to be involved.

THE COURT: Okay. What I'm trying to find out is: Had you decided not to come before you got that phone call —

[Thomas]: No, sir.

THE COURT: — or did that phone call cause you to decide not to come?

[Thomas]: Yes, sir. That Monday I did come to trial.

THE COURT: `Yes, sir,' what?

[Thomas]: I came to trial that Monday31 before I got the phone call, but that phone call made me not come no more.

THE COURT: That's what I want to know, because you just said that you were not going to come anyway, and I want to make sure that it was the phone call from the 676 number that caused you not to come. Is that correct?

[Thomas]: Yes, sir.

THE COURT: All right." (emphasis added).

Even though Thomas eventually confirmed that the phone call caused him not to come, he never disavowed his voluntary statement that he "was not going to come anyway," even before he received the call. It is very questionable whether Thomas would have shown up at court even without the mysterious message.

Moreover, Thomas's behavior with respect to the new trial hearing also makes it apparent that he was very reluctant to get involved by testifying at trial. When Thomas was subpoenaed for the new trial hearing, again he did not show up — even though there was no evidence of a continued risk of being arrested at the federal courthouse because of some supposed warrant. Thomas finally came to the new trial hearing because he was arrested for not complying with his subpoena to appear at the hearing on the previous occasion.32 Although he was still afraid of the government,33 he now knew that he had to comply with the subpoena or be arrested.34 This testimony supports the government's contention that Thomas had other reasons for not appearing at trial.35

The district court found that there was "no credible evidence that the Government prevented Thomas from testifying" at Scroggins's trial. The court observed that the "evidence surrounding Thomas' voice mail message is insufficient to implicate interference by the federal government as there is no evidence that the federal government corners the market on the '676' prefix in Shreveport, Louisiana." The court considered that Thomas did not recognize the voice of the caller and could not identify it as belonging to any agent who had called him and whose voice he likely would have recognized. Because the district court found that there was no credible evidence of governmental interference, it apparently did not believe Thomas's testimony that the mysterious call had occurred in the manner that he testified — if at all.

The district court did not clearly err in finding that Thomas had not shown by a preponderance of the evidence that the mystery call was from the government: Thomas did not recognize the voice as belonging to any agent who had called him on his cell phone and with whom he had spoken and whose voice he recognized;36 there was no evidence given during the new trial hearing or otherwise that the government "corners the market on the `676' prefix in Shreveport;"37 and Thomas did not know if the call was from a narcotics agent, but only assumed it was because "who else would have done it?"

Furthermore, what is most damaging to Thomas's allegations is his testimony that he had already decided not to go to court anyway — independent of the call — because he did not want to get involved and because of his fear of the government. Thomas's fear of the government developed prior to and independent of the claimed phone message. Although he did assert that the phone call did contribute to his decision to not come, he also stated that he was not going to come anyway. Thus, it is difficult to conclude that but for the alleged phone call, Thomas would have appeared at trial, particularly in light of Thomas's failure to appear at the new trial hearing until he was arrested — even though there was no evidence of any threat preventing him from appearing at that time.

Other evidence at the new trial hearing also explains why Thomas would have been reluctant to appear at trial — independent of the mysterious call. Green testified that Thomas had been threatened in the past by the Scroggins family and that he came to the agents requesting money or protection and that they get him out of the Shreveport area.38 In addition, along with its brief in support of its response to the new trial motion, the government filed an investigation report that purportedly detailed a payment to Thomas for security purposes because of threats from the Scroggins family. The report stated that: threats were made against the "CS's"39 life as a result of cooperation with the DEA during October and November 2000; the payment was for security purposes and was to assist the CS in leaving the area because of the threats; and at least some of the threats were from Donald Scroggins and were due to the CS's involvement in the arrest of Buchanan. Adding this evidence to Thomas's testimony about his reluctance to show up at trial and his not appearing at the December new trial hearing, the district court did not clearly err in finding that the government did not prevent Thomas from appearing at trial.40

We next consider whether the district court erred by not considering the primary basis of Scroggins's new trial motion — the interest of justice. We hold that the district court did err in limiting its analysis of the motion to newly discovered evidence and that this error was not harmless to Scroggins. We also reject the government's argument that the district court may not grant the new trial motion absent an identifiable legal error and hold that the existence of a specific legal error is not always required to grant a motion for new trial in the interest of justice.

Because Scroggins filed his motion for new trial within the time authorized by Rule 33(b)(2), his motion could have been properly grounded on any reason for which a new trial could be granted and was not required to be limited to newly discovered evidence.41 Scroggins based his motion on the interest of justice and not expressly upon newly discovered evidence.42 Therefore, the district court erred in limiting its analysis of the motion, and the exercise of its discretion, to newly discovered evidence while not considering the primary basis of Scroggins's motion — the interest of justice.43

Further, the district court's failure to analyze the motion based on the interest of justice was not harmless to Scroggins.44 In contrast to motions made within the seven-day period, new trial motions based on newly discovered evidence are subjected "to an unusually stringent substantive test." United States v. Ugalde, 861 F.2d 802, 808 (5th Cir.1988). See also United States v. Rachal, 473 F.2d 1338, 1343 (5th Cir.1973) (recognizing "the heavier burden which the movant must carry" in a new trial motion based on newly discovered evidence in contrast to motions "based on other grounds, which must be made within seven days after verdict"); 3 Charles ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 551 (3d ed. 2004) ("[M]otions for new trial on the ground of newly discovered evidence are not favored, and are to be granted with caution. It is a mistake to extend this proposition to motions for a new trial because of trial errors or other grounds. Here the motion should be neither favored nor disfavored, and the question is only what the interest of justice requires.") (footnote omitted). Moreover, the standard chosen by the district court to analyze a new trial motion will likely have an effect on the exercise of its discretion: "Just as our standard of review shapes our decision in this appeal, the standards that guide a trial court's Rule 33 analysis shape its review of the trial evidence and the outcome of defendant's Rule 33 motion." United States v. Ferguson, 246 F.3d 129, 133 (2d Cir.2001).

A district court may grant a new trial where it "finds that a miscarriage of justice may have occurred at trial." Robertson, 110 F.3d at 1120 n. 11; see also Ferguson, 246 F.3d at 133 ("[Rule 33] by its terms gives the trial court broad discretion ... to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.") (internal quotation and citation omitted). A miscarriage of justice warranting a new trial in certain circumstances may occur even when there has been no specific legal error. See United States v. Vicaria, 12 F.3d 195, 198-99 (11th Cir.1994); FEDERAL PRACTICE AND PROCEDURE, supra, § 551.45

United States v. Patterson, 41 F.3d 577 (10th Cir.1994), presents a somewhat analogous situation. There the district court granted a Rule 33 motion for new trial made in the interest of justice.46 Id. at 579. The defendant's brother was to testify for the defendant, and during jury selection and opening statement the jury was made aware by defense counsel that the brother was present in the courthouse, would testify for the defense, and had first hand knowledge of important facts. However, when it came time for the brother to testify, he could not be found, even though he had been present at court earlier that morning. The district court allowed a short recess to locate the witness, but he still could not be found. The defendant requested a continuance, which the district court denied. Id. at 578. Following the jury's guilty verdict, the defendant moved for a new trial, submitting an affidavit from his brother, the missing witness, stating that he had left the courthouse at lunchtime to run a personal errand, and that while away, his truck broke down, and he was unable to contact anyone until later that afternoon, after the verdict. Id.

In granting a new trial, the district court found that "the absence of [the witness] could have been prejudicial to defendant because the jury had been told, and was anticipating the testimony of [the witness], and the fact that he did not testify could have created an inference that his testimony would not have been favorable to the defense." Id. at 579. The district court "accepted [the witness's] excuse, giving him the benefit of the doubt, with a finding that [the witness] may not have been able to find a telephone to call in the news of his breakdown until it was too late." Id.

The Tenth Circuit affirmed the district court, rejecting the government's argument that "the trial court could not sustain the motion for new trial since the court did not make any finding that the initial denial of a continuance was an `abuse of discretion.'" Id. The Tenth Circuit stated that "a trial judge is not obliged to review his past trial rulings and make an independent judgment that he himself has `abused his discretion' before granting a new trial." Id. The Tenth Circuit concluded that the district court had not abused its discretion in granting the new trial, id., even though neither the district court nor the Tenth Circuit pointed to any specific legal error.

We therefore remand this case to the district court to consider Scroggins's motion for new trial in the interest of justice and conclude that the district court may grant a new trial in the interest of justice even if it does not find that a specific legal error occurred at trial. Nevertheless, the district court's discretion to grant a new trial, although broad, is not without bounds. Robertson, 110 F.3d at 1118. See FEDERAL PRACTICE AND PROCEDURE, supra, § 551 ("The court has discretion in passing on the [new trial] motion, but it should hold in mind the harmless and plain error provisions of Rule 52, and refuse to grant a new trial if the substantial rights of the defendant were not affected.") (emphasis added) (footnotes omitted). In appropriate instances, we have not hesitated to set aside a trial court's grant of a new trial in criminal cases. See, e.g., United States v. Logan, 861 F.2d 859 (5th Cir.1988); United States v. Leal, 781 F.2d 1108, 1111 (5th Cir.1986). Absent legal error, for the district court to grant a new trial, it must, in the exercise of its discretion, find either that the absence of Young or Thomas (or both together) resulted in a manifest injustice and that Scroggins would have probably been acquitted if the jury had heard their testimonies, United States v. Sanchez, 969 F.2d 1409, 1414-16 (2d Cir.1992), or that, with the additional testimony, the evidence would "preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand." Robertson, 110 F.3d at 1118 (emphasis added) (internal citations omitted). In its analysis, however, the district court "may not reweigh the evidence and set aside the verdict simply because it feels some other result would be more reasonable." Id.

We also emphasize that because we have upheld the district court's finding that the government did not interfere with Young and Thomas, the case for a new trial must be stronger than if the district court had found governmental interference. The absence of governmental misconduct means that the district court should grant the new trial only if it concludes, in the exercise of its discretion, see United States v. Arroyo, 805 F.2d 589, 599 (5th Cir.1986), either that the jury probably would have acquitted Scroggins with the testimonies of Young or Thomas, rather than simply that the jury might have acquitted, cf. Sanchez, 969 F.2d at 1414-16,47 or that had Young and Thomas testified the evidence would so heavily preponderate against the verdict that it would be a miscarriage of justice to let it stand.

Because the district court should consider Scroggins's motion for new trial in the interest of justice in the first instance, at this stage it is not appropriate for us to review the district court's finding that Young and Thomas would have given material testimony if they had testified at trial.48 However, we note that in any event the record before is not sufficiently developed to rule on the district court's materiality determination. The district court declared in its ruling on the new trial motion that it had "already determined in open court that the testimony Young and Thomas were to provide is material"; however, it did not make any other reference to its materiality determination or to findings upon which it based its conclusion that their testimony was material. In the new trial hearing the district court did state that the witnesses were very important and could have made a difference; however, the court never did make any specific findings upon which it based its materiality determination. Furthermore, during Thomas's testimony the district court clearly and repeatedly prevented Scroggins's counsel from going further into the substance of what Thomas would have testified to at trial.49 In addition, at the conclusion of the new trial hearing, the district court again expressed its view that Young and Thomas were important witnesses, but expressly instructed the parties to limit their arguments in their post-hearing briefs to the governmental interference issue, clearly implying that they were not to address the materiality issue.

Because the issue of materiality is a mixed question of law and fact, our review is generally de novo, meaning "we undertake an independent appellate analysis to determine whether the facts found by the trial court rise to the level of the applicable legal standard." United States v. O'Keefe, 128 F.3d 885, 893-94 (5th Cir.1997). In this case the district court did not make any specific factual findings regarding the testimonies of Young and Thomas. Its only determinations were that the testimonies were important and could have made a difference and that it was interested in them. In any event, with respect to Thomas, the district court did not allow Scroggins to fully develop the record concerning the substance of his testimony. Therefore, even if it were appropriate for us to rule on the district court's materiality determination, we could not do so on the record before us.

With the foregoing in mind, in considering Scroggins's new trial motion in the interest of justice on remand, the district court may need to hold a further hearing (if timely and properly requested to do so by either party).

B. Failure to Issue Bench Warrant and Right to Compulsory Process

Scroggins argues that he is entitled to a new trial because he was denied compulsory process when the district court did not issue bench warrants compelling Young and Thomas to appear. We disagree.

Scroggins did not raise the issue of the district court's failure to issue a bench warrant before the district court, either at trial or in his motion for new trial. Therefore, as he is raising this argument for the first time on appeal, we review it for plain error. United States v. Serna-Villarreal, 352 F.3d 225, 231 (5th Cir.2003).

Under the Sixth Amendment, "`criminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.'" United States v. Soape, 169 F.3d 257, 268 (5th Cir.1999) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 1000, 94 L. Ed. 2d 40 (1987)). "The compulsory process right is not absolute, however; when requesting a court to subpoena a witness, a defendant has the duty to demonstrate the necessity of the witness's testimony." Soape, 169 F.3d at 268 (emphasis added). To show a violation of the constitutional right, the defendant must show more than that he was deprived of certain testimony; he must instead "make some plausible showing of how [that] testimony would have been both material and favorable to his defense." United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S. Ct. 3440, 3446, 73 L. Ed. 2d 1193 (1982).

Therefore, to show a violation of his right to compulsory process regarding Young or Thomas, Scroggins must have 1) requested the court to issue a bench warrant compelling the witnesses to appear and 2) demonstrated the necessity of the witnesses' testimony by making a plausible showing of how their testimony would have been both material and favorable to his defense. Soape, 169 F.3d at 268.

Scroggins did not meet his duty of demonstrating the necessity of Young's testimony. When Young did not appear in court, Scroggins's counsel did not even mention Young by name and did not say anything about him to show how his testimony would have been material and favorable.

When Thomas did not appear, Scroggins's counsel briefly explained the importance of his testimony:

"[Thomas] was referred to in the testimony of Special Agent Clifton (sic) Simmons, the undercover agent who conducted the buy [with Earl Buchanan] on November 15, 2000. James Thomas was the confidential informant of the government who was the go-between between Earl Buchanan, and his testimony is completely and totally exculpatory as to what Agent Simmons testified to, and I think he is crucial to my case." (emphasis added).

That Thomas's testimony would be "completely and totally exculpatory as to what Agent Simmons testified to" is, however, simply conclusory and does not allege any specific facts that would lead the trial court to conclude that Thomas's testimony was both material and favorable to Scroggins's defense. See Janecka v. Cockrell, 301 F.3d 316, 326-27 (5th Cir.2002) ("Janecka's explanation of how Duff-Smith's testimony might have been material and favorable to his defense is vague at best. He fails to offer any details regarding what specific information Duff-Smith could have provided or why Duff-Smith's testimony would not have been merely cumulative of other evidence presented at trial.")50 (emphasis added); United States v. Gonzales, 79 F.3d 413, 424 (5th Cir.1996) ("The government may respond [to a defendant's request to subpoena a witness] by demonstrating that the facts upon which the defense relies are inaccurate....") (emphasis added). Further, the statement that Thomas's testimony is "exculpatory as to what Agent Simmons testified to" did not help Scroggins at all — even if specific facts had been given. Simmons testified merely to identify the cocaine purchased by the government in the controlled buy with Buchanan on November 15, 2000. None of his testimony implicated Scroggins and it is not clear how Thomas's testimony would have been "exculpatory as to what Agent Simmons testified to." It was Buchanan that later testified that the drugs that he sold that day were supplied by Scroggins. Because Scroggins failed to make the required plausible showing of the need for Thomas's testimony, Scroggins's right to compulsory process was not violated by a failure to issue the bench warrant.51

Moreover, Scroggins did not explicitly request that the district court issue bench warrants to compel the presence of the witnesses. When Thomas did not appear at trial on Wednesday morning, the following exchange took place between the district court and Scroggins's counsel:

"[Scroggins's Counsel]: I have three [witnesses] that are not here and I — I have subpoenaed. I may want writs issued and —

THE COURT: Have you talked to them?

[Scroggins's Counsel]: I talked to two of them last night, and the other one, even though I've subpoenaed him, paid his witness fees, done everything properly, he is not responding and I have a feeling that —

* * *

THE COURT: When did the subpoena say he should appear? [Scroggins's Counsel]: The subpoena had told him to appear on Monday, and we called all of our witnesses and left messages to come Wednesday.

THE COURT: Then I hope he is here. These last-minute actions on your — just if he's not here, we're going on.

[Scroggins's Counsel]: Then I'll —

THE COURT: A bench warrant will take anywhere from a day to a week to execute.

[Scroggins's Counsel]: Then I'd like to make a comment on the record as of what I think happened.

* * *

THE COURT: I suggest you send [the defense investigator] out to find him, because you're going to need him and I'm not going to delay this trial any further." (emphasis added).

Scroggins contends that his trial counsel was about to request a bench warrant and did not only because of the district court's implicit rejection of the anticipated request and that he was not required to "continue fighting" with the district court once it had indicated that it would not issue a bench warrant.

We recognize that at times a party in Scroggins's position may be excused from explicitly making a request for a bench warrant for a material witness. An arguably analogous situation is when a party is excused from raising objections to proposed jury instructions:

"A party may be excused from the requirement of making a specific objection only where the party's position previously has been made clear to the trial judge and it is plain that a further objection would be unavailing. Only when the appellate court is sure that the trial court was adequately informed as to a litigant's contentions may the appellate court reverse on the basis of jury instructions to which there was no formal objection." Russell v. Plano Bank & Trust, 130 F.3d 715, 720 (5th Cir.1997) (internal quotations and citations omitted).52

Projecting this excuse for failure to object to jury instructions to the present situation, in order for Scroggins to be excused for not requesting a bench warrant, Scroggins would have to show that 1) he previously made clear to the district court his position that Thomas was a materially favorable witness and that he needed a bench warrant to compel Thomas's attendance and 2) it is plain that a further request for a bench warrant would be unavailing.

Based on the trial judge's statements that "[a] bench warrant will take anywhere from a day to a week to execute," "if he's not here, we're going on," and "I'm not going to delay this trial any further," particularly in light of Scroggins's counsel's statement that "I may want writs issued" for the missing witnesses, it is plain that it would have been unavailing for Scroggins to request a bench warrant for Thomas. Nevertheless, as discussed above, Scroggins did not successfully make clear his position, other than in mere conclusory terms, that Thomas was a materially favorable witness. Therefore, Scroggins's failure to explicitly request a bench warrant is not excused, further supporting the conclusion that the failure to issue a bench warrant for Thomas was not plain error.

On the final issue concerning Scroggins's missing witnesses, Scroggins contends that he should be granted a new trial because his trial counsel's failure to request a continuance upon the nonappearance of Young and Thomas was ineffective assistance of counsel. Because Scroggins did not properly raise it before the district court, we decline to address the merits of Scroggins's ineffective assistance of counsel claim.

During the new trial hearing, Scroggins's counsel asserted that she had requested a continuance when Young and Thomas did not appear at trial; however, the district court could not recall the request or find it in the trial transcript. In the brief in support of the motion for new trial, requested by the district court at the end of the January 2003 hearing, Scroggins's counsel continued to assert that she had made such a request,53 even though no evidence of the request for a continuance could be found in the record.54 Scroggins's counsel then argued in the brief that if the district court believed that she did not request a continuance, the failure to do so was ineffective assistance of counsel — because Young and Thomas were the "most crucial part" of the defense trial strategy. In denying Scroggins's motion for new trial, the district court did not mention the ineffective assistance issue.

In general, we do not resolve claims of ineffective assistance of counsel on direct appeal when the claim has not been raised before the district court since there was no opportunity to develop the record on the merits of the claim. United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.1987).

Scroggins did not properly raise the ineffective assistance of counsel issue before the district court. Even though "issues raised for the first time in post judgment motions are preserved for appeal," Instone Travel Tech Marine & Offshore v. Int'l Shipping, 334 F.3d 423, 431 n. 7 (5th Cir.2003), Scroggins's attempt to raise the claim did not properly bring it before the district court. Scroggins did not raise the claim in his new trial motion or in the hearing on the motion, but only after the hearing and without amending his previously filed motion. Further, because the claim was raised in conjunction with a request for a new trial made more than seven days after the verdict, Scroggins was at that time limited to moving for a new trial only on the basis of newly discovered evidence, Rule 33(b)(2), and we have held that "a Rule 33 motion, filed more than seven days after the verdict and premised on `newly discovered evidence,' is an improper vehicle for raising a claim of ineffective assistance of counsel." United States v. Medina, 118 F.3d 371, 372 (5th Cir.1997) (citing Ugalde, 861 F.2d at 807-09). Therefore, we decline to address the merits of Scroggins's ineffective assistance of counsel claim; however, we do so without prejudice to Scroggins's right to raise the issue pursuant to 28 U.S.C. § 2255. See Higdon, 832 F.2d at 314.

II. Prosecution's Misstatement of the Law in Closing Arguments

Scroggins contends that a new trial is justified because the government misrepresented an element of the conspiracy charge during its closing arguments. During trial there was evidence that Scroggins was a drug addict. During its rebuttal at closing argument, the government referred to this:

"And if Mr. Donald Scroggins is a drug addict, where, ladies and gentlemen, where was he getting the drugs? For him to get cocaine necessarily means that he's involved in cocaine trafficking. There's two people in that conspiracy right there: the person he got the drugs from and himself."

Scroggins, however, did not object to the government's argument.

Scroggins argues that this comment misstates the elements of a conspiracy by implying that a mere buyer-seller relationship was sufficient to establish a conspiracy. As Scroggins has not shown that he was prejudiced by this comment, we decline to reverse his conviction on this basis.

Objections to comments made during closing arguments that are raised for the first time on appeal are reviewed for plain error. United States v. Flores-Chapa, 48 F.3d 156, 159 (5th Cir.1995). Plain error is reviewed using a three-part test: "First, there must be error, next, that error must be plain, and finally, the error must affect substantial rights." Id. If we find such plain error, we have the discretion to correct the error, but are not required to do so. United States v. Vital, 68 F.3d 114, 119 (5th Cir.1995). "Plain errors affecting substantial rights should be corrected on appeal only if they seriously affect the fairness, integrity, or public reputation of judicial proceedings." Id. (internal quotations and citations omitted).

"Proof of a buyer-seller agreement, without more, is not sufficient to tie a buyer to a conspiracy." United States v. McKinney, 53 F.3d 664, 672 (5th Cir.1995). For the government to argue that because Scroggins uses drugs, for "him to get cocaine necessarily means that he's involved in cocaine trafficking" implies that merely because Scroggins buys drugs from a seller, he is involved in a conspiracy. Such an implication is legally erroneous.

This error, however, did not affect Scroggins's substantial rights and did not "seriously affect the fairness, integrity, or public reputation" of the proceeding. Vital, 68 F.3d at 119. We therefore decline to reverse on this basis.

There is a significant amount of testimony, besides Scroggins's characteristic as a drug addict-buyer, to support a jury finding that Scroggins was involved in a conspiracy. Further, the district court properly instructed the jury on the elements of a drug conspiracy and told the jury to base their verdict on the evidence presented through witness testimony and not on the argument of counsel. See United States v. Ellender, 947 F.2d 748, 758 (5th Cir.1991). Finally, the complained of statement was but a very small portion of the prosecutor's arguments and there was no other like statement or implied assertion that the mere buyer-seller relationship equated to a conspiracy. Scroggins has not demonstrated prejudice because of the prosecutor's statement.

III. District Court's Refusal to Grant Access to the Presentence Reports for Key Witnesses

Scroggins claims that the district court erred when it denied his pretrial request that the government produce the presentence reports (PSRs) for two key government witnesses, Earl Buchanan and Gregory Byrd, that had been produced in connection with their drug prosecutions. The district court denied the motion without giving any reasons and without any indication that it had reviewed the reports in camera.

United States v. Carreon, 11 F.3d 1225 (5th Cir.1994), presents a similar situation and describes the proper result. In Carreon, the defendant had "requested access to the PSRs of [the coconspirator] witnesses in order to acquire any exculpatory or impeachment information under Brady and Giglio." Id. at 1238. We held that the district court erred in denying the request and remanded the case so that the district court could inspect the PSRs and "determine whether [the defendant] was in fact denied access to material Brady or Giglio information and, if so, whether he suffered prejudice as a result of this denial." Id.

Similar to Carreon, Scroggins requested access to the PSRs of key government witnesses. The district court denied the request, without indicating whether it had conducted an in camera review of the PSRs and without making the PSRs part of the record. We therefore remand the case in order for the district court to

"1) conduct an in camera inspection and make appropriate findings as to whether the PSRs of the government witnesses contained any material Brady or Giglio information, and 2) compare those findings against the evidence [Scroggins] had at trial to determine whether the failure to provide this information was harmless error. So that these findings and conclusions are reviewable on appeal, we require that the district court ensure that these PSRs are made a part of the record, albeit under seal if need be." Id.

IV. Information Relied on by the District Court at Sentencing

Scroggins argues that information upon which the district court relied in setting his sentence did not bear a sufficient indicia of reliability. Scroggins specifically objects to information and testimony provided by Buchanan concerning the amount of crack cocaine involved in the conspiracy of which Scroggins was convicted and Scroggins's alleged obstruction of justice. In both instances, Buchanan was the only source upon which the guideline calculation was based. Scroggins claims that because the information relied upon by the district court at sentencing is inconsistent with Buchanan's testimony at trial, and is also hearsay, the information could not properly be used to set Scroggins's sentence.55

Factual findings under the Sentencing Guidelines are reviewed for clear error. United States v. Reinhart, 357 F.3d 521, 525 (5th Cir.2004). Findings as to the amount of drugs attributable to a defendant and that a defendant has obstructed justice are both factual findings reviewed for clear error. United States v. Posada-Rios, 158 F.3d 832, 878 (5th Cir.1998) (quantity of drugs); United States v. Rickett, 89 F.3d 224, 226 (5th Cir.1996) (obstruction of justice). "The district court's findings are not clearly erroneous if they are plausible in light of the record reviewed in its entirety." United States v. Solis, 299 F.3d 420, 455 (5th Cir.2002) (internal quotation and citation omitted).

The district court found that "there's no doubt in [its] mind from the testimony at trial and the testimony heard today that Mr. Scroggins was involved in a conspiracy that dealt in more than 1.5 kilograms of crack cocaine."56 The district court also found that Buchanan had testified that "Mr. Scroggins tried to get him to take the charges" and applied the obstruction of justice enhancement. We review whether these findings are plausible in light of the record in its entirety.

Buchanan was the only source indicating that Scroggins merited the obstruction of justice enhancement under U.S.S.G. § 3C1.1. At trial on redirect examination, Buchanan testified that Scroggins and Bryant had asked him not to testify at their trial and promised him financial support for not testifying.

Scroggins raises this issue because the district court's finding, and the PSR upon which the district court presumably based its finding, differed from Buchanan's actual testimony. The PSR stated that Buchanan "testified in court [that Scroggins] tried to get him to `take the charges' so [Scroggins] could get away with being prosecuted for any criminal behavior and [Scroggins] would take care of [Buchanan] if he were to do this for him." In making its finding, the district court repeated the substance of the PSR: "Buchanan has testified that Mr. Scroggins tried to get him to take the charges." Our review of Buchanan's testimony at trial — upon which the PSR and the district court supposedly relied — does not disclose any specific "take the charges" testimony.

Nevertheless, the district court's ultimate finding that Scroggins merited the obstruction of justice enhancement, in respect to his efforts to use Buchanan to obstruct justice with reference to his trial, is sufficiently supported by the record. Buchanan testified that Scroggins: asked him not to testify in Scroggins's trial, promised him financial support if he did not testify, and asked him not to say anything about Scroggins at the trial. As the district court's finding of obstruction of justice is plausible in light of the record reviewed in its entirety, the finding is not clearly erroneous. Solis, 299 F.3d at 455.

Buchanan was the only source — either at trial or at sentencing — for the amount of crack cocaine involved in the conspiracy. At sentencing, Agent Green testified that Buchanan had told him in an interview that Scroggins had trafficked in at least ten kilograms of cocaine, seven of which were cocaine powder and three of which were crack cocaine.57

At trial, however, Buchanan did not testify to the amounts he had communicated to Green. Buchanan first testified that Scroggins was purchasing cocaine from Shirley Preston from the end of 1998 to the end of 1999 or the first part of 2000. These purchases consisted of one or two kilograms of cocaine at a time, occurred approximately once a month, but sometimes less frequently, and consisted of powder cocaine only. When Buchanan sold this cocaine for Scroggins, some of it was in the crack form. Regarding the cocaine purchased from Preston, Buchanan's testimony of the amount of crack cocaine was as follows:

"[Gov't]: Do you know approximately how much crack you sold?

[Buchanan]: No, sir. More powder than crack.

[Gov't]: Was it more than 50 grams of crack?

[Buchanan]: Yes, sir."

Buchanan then testified that Scroggins purchased cocaine from David Sosa starting in the first part of 2000. These purchases consisted of one to two kilograms at a time and occurred approximately once a month. Buchanan testified that this cocaine consisted in all of about five kilograms — one kilogram of crack and four of powder.

In making factual findings under the Sentencing Guidelines, "the district court may consider any information which bears sufficient indicia of reliability to support its probable accuracy, including hearsay evidence, without regard to admissibility under the Federal Rules of Evidence which govern at trial." Solis, 299 F.3d at 455 (emphasis added) (internal quotation and citation omitted). Even when a witness has "told lies and contradicted himself," although it "creates a credibility question for the district court to resolve," the testimony may still bear a sufficient indicia of reliability. United States v. Ramirez, 963 F.2d 693, 708 (5th Cir.1992).

Specifically with respect to calculating the amount of drugs, the Seventh and Third Circuits have addressed the question of how a district court should deal with inconsistencies and contradictions among the different testimonies of the same witness or between a sworn testimony of a witness and a hearsay statement of that witness. In United States v. Beler, 20 F.3d 1428 (7th Cir.1994), the district court relied on two affidavits from a government witness and the trial testimony of a second witness in calculating the drug amount. Id. at 1430. The information and testimony from the witness who supplied the affidavits was: 1) at trial, the witness was unable to estimate the quantity of cocaine he had purchased from the defendant; 2) the first affidavit, signed prior to the defendant's sentencing, stated that the witness had purchased 150 to 200 ounces of cocaine from the defendant; and 3) the second affidavit stated that the amount in the first affidavit was incorrect because of a typographical error and that the correct amount should have been 15 to 20 ounces of cocaine. Id. The Seventh Circuit found that the district judge's conclusory finding as to the reliability of the second affidavit was not acceptable and held that the district court should have further explored the factual basis for the estimate before accepting the amount as uncontroverted. Id. at 1433-34. The Seventh Circuit also recognized that "the district court should have subjected any information provided by [this witness] to special scrutiny in light of his dual status as a cocaine addict and government informant." Id. at 1435. The district court in Beler, because of these inconsistencies among the witness's affidavits and his trial testimony, clearly erred when it did not subject the affidavits to "searching scrutiny." Id. at 1435. Nevertheless, the Seventh Circuit noted that on remand, this witness was not barred from providing drug quantity information, provided that "the district court scrutinize that information to ensure that it possesses sufficient indicia of reliability to support its probable accuracy." Id. (internal quotation and citation omitted). In United States v. McEntire, 153 F.3d 424, 437 (7th Cir.1998), the court was faced with a situation analogous to that in Beler and reached the same result, remanding for the district court to directly address the contradiction and explain why it credited one statement rather than the other.

In United States v. Brothers, 75 F.3d 845 (3d Cir.1996), a coconspirator testified at the sentencing hearing that the defendant "never knew the amount of cocaine involved"; however, the FBI agent who had initially interviewed the coconspirator gave hearsay testimony at sentencing that the coconspirator had stated earlier that the defendant did know of the amount of drugs involved in the transaction. Id. at 847. The Third Circuit went on to emphasize that, in general, hearsay evidence can be proper sentencing evidence — and it may even be credited "over sworn testimony, especially where there is other evidence to corroborate the inconsistent hearsay statement." Id. at 848 (internal quotation and citation omitted). Although the district court gave reasons why it believed that the hearsay evidence from the FBI agent was more credible than the testimony of the coconspirator, id. at 850, the Third Circuit concluded that the reasons could not support the district court's conclusion. Id. at 853.

These cases illustrate the following principles in the context of calculating the amount of drugs for sentencing purposes: 1) a witness's inconsistent and contradictory testimonies, be they from sworn testimony or hearsay, may properly form the basis for calculating the amount of drugs; 2) however, in cases of inconsistent or contradictory statements from the same witness, the district court must sufficiently scrutinize the evidence, and 3) provide a rationale in the record for why it chose to believe one inconsistent statement over another.

We reject Scroggins's contention that the district court could not have relied on Green's testimony of what Buchanan told him because it was hearsay. As a district court may properly rely on hearsay evidence at sentencing, Solis, 299 F.3d at 455, the hearsay nature of Green's testimony, by itself, does not create any error.

In sum, Buchanan's versions of the amount of crack cocaine for which Scroggins was responsible included: 1) trial testimony of at least 1.05 kilograms, but with Buchanan unable to know the approximate total amount (more than fifty grams from Preston, and one kilogram from Sosa); and 2) information given to Green of about three kilograms. While the amounts differ, the two accounts would not necessarily be inconsistent but for Buchanan's testimony that he did not know approximately how much of the Preston-cocaine was crack cocaine.

We conclude that the district court did not sufficiently scrutinize Buchanan's inconsistent statements and did not provide a rationale in the record for believing one version over another. In detailing its findings, the district court stated that it had relied on the testimony at trial and at sentencing, but it did not say anything about the differences between Buchanan's trial testimony and the information Buchanan gave Green and of which Green testified at sentencing.

It also appears that in arriving at its finding, the district court was confused, and likely influenced, by other evidence given at the sentencing hearing and in the PSR concerning the amount of cocaine. Green also testified at sentencing that Scroggins had told Green that he had received one to two kilograms of cocaine approximately every two weeks for about a three to four-month period.58 On cross-examination, Green added that this purchase-pattern could have resulted in at least 6 kilograms of cocaine, but that it could have been more. Green, however, did not distinguish at all between powder or crack cocaine. Nevertheless, as Scroggins's counsel was giving her closing statements at sentencing, it was apparent that there was confusion about whether Green had testified about powder or crack cocaine:

"[Scroggins's Counsel]: ... And unless the Court is believing solely and only the testimony of Earl Buchanan, ... then the Court could find reason for giving Mr. Scroggins less than life based upon the testimony of Agent Green in that he used the statements that Mr. Scroggins gave to him as being between 6 and 8 kilograms of powder cocaine.

THE COURT: Crack cocaine.

[Scroggins's Counsel]: No, I believe that he said powder cocaine. Now, Mr. —

THE COURT: I think he said both. I think he said 3 kilograms of crack. Was that —

[Scroggins's Counsel]: Mr. Buchanan testified to crack.

THE COURT: Yes.

[Scroggins's Counsel]: But not Mr. Scroggins —

THE COURT: Well, I understand.

[Scroggins's Counsel]: — in his reports to Agent Green, and I'm asking you to use that as your basis for lowering him below the life sentence range." (emphasis added).

The district court then overruled Scroggins's objection to the amount of crack cocaine and reiterated its finding that Scroggins was responsible for at least 1.5 kilograms of crack cocaine.59

Our review of the record indicates that Green did not testify specifically about crack or powder cocaine; Buchanan was the only source at trial or at the sentencing hearing that gave information about the amount of crack cocaine. We believe that the district court's confusion as to the content of Green's testimony, which was most likely due to a misrepresentation in the addendum to the PSR,60 likely influenced the district court's conclusion regarding the amount of crack cocaine involved in the conspiracy. If the district court thought that Green's testimony of what Scroggins told him included amounts of crack cocaine over 1.5 kilograms, it would not have been particularly concerned about the differences in Buchanan's information, perhaps explaining why the district court did not attempt to address the differences.

Therefore, we remand the case for resentencing with respect to the quantity of crack cocaine (and, should it become relevant, the quantity of powder cocaine).

Based on the foregoing, we REMAND the case to the district court to consider Scroggins's motion for new trial in the interest of justice (Part I.A.4 hereof above). We also REMAND in order for the district court to review the PSRs of Earl Buchanan and Gregory Byrd to determine whether these PSRs include any material Brady or Giglio information to which Scroggins was denied access (Part III hereof above). Finally, we VACATE Scroggins's sentence as to the quantity of crack cocaine and REMAND for resentencing not inconsistent with this opinion (Part IV.D hereof above).61 We reject all other points of error raised by Scroggins and affirm the district court's rulings in the respects challenged.62