________________________________________________

            Nos. 95-2539MN, 95-2655MN, 95-2656MN, 95-2657MN,
                     95-2658MN, 95-2659MN, 96-1316MN
            ________________________________________________


     _____________                 *
                                   *
     No. 95-2539MN                 *
     _____________                 *
                                   *
United States of America,          *
                                   *
           Appellee,               *
                                   *
     v.                            *
                                   *
                                   *
Calvin Lucien Delpit, also         *
known as Monster,                  *
                                   *
                                   *
           Appellant.              *   On Appeal from the United
                                   *   States District Court
                                   *   for the District of
     _____________                 *   Minnesota.
                                   *
     No. 95-2655MN                 *
     _____________                 *
                                   *
United States of America,          *
                                   *
           Appellee,               *
                                   *
     v.                            *
                                   *
                                   *
Dennell Malone,                    *
                                   *
           Appellant.              *
                                   *
                                   *
     _____________           *
                             *
     No. 95-2656MN           *
     _____________           *
                             *
United States of America,    *
                             *
           Appellee,         *
                             *
     v.                      *
                             *
                             *
Jermaine Dana Saunders,      *
                             *
           Appellant.        *
                             *
                             *
     _____________           *
                             *
     No. 95-2657MN           *
     _____________           *
                             *
United States of America,    *
                             *
           Appellee,         *
                             *
     v.                      *
                             *
                             *
Zackarrie Emil Prado,        *
                             *
           Appellant.        *
                             *
                             *
     _____________           *
                             *
     No. 95-2658MN           *
     _____________           *
                             *
United States of America,    *
                             *
           Appellee,         *
                             *
     v.                      *
                             *
                             *
Lavern Thomas,               *
                             *
           Appellant.        *
                             *
                             *




                            -2-
     _____________                    *
                                      *
     No. 95-2659MN                    *
     _____________                    *
                                      *
United States of America,             *
                                      *
           Appellee,                  *
                                      *
     v.                               *
                                      *
                                      *
Jai Anthony Jones,                    *
                                      *
           Appellant.                 *
                                      *
                                      *
     _____________                    *
                                      *
     No. 96-1316MN                    *
     _____________                    *
                                      *
United States of America,             *
                                      *
           Appellee,                  *
                                      *
     v.                               *
                                      *
                                      *
Chanise Janelle Lynn,                 *
                                      *
           Appellant.                 *



                                  ___________

                     Submitted:   May 15, 1996

                         Filed:   August 28, 1996
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and VAN
     SICKLE,* District Judge.
                              ___________




     *The Hon. Bruce M. Van Sickle, United States District Judge
for the District of North Dakota, sitting by designation.

                                     -3-
RICHARD S. ARNOLD, Chief Judge.


     A jury convicted the seven defendants of various crimes, including
interstate murder-for-hire, 18 U.S.C. § 1958(a), arising out of a Twin
Cities-based drug conspiracy and gang rivalry.               They received prison
sentences ranging from 97 months to life.           The defendants challenge their
trial, convictions, and sentences.          We reject most of these challenges.
We agree, however, with Chanise Lynn and Zackarrie Prado that their
interstate murder-for-hire convictions must be reversed.             They may well
have taken part in a murder plot, but the government did not prove they
violated federal law.    Finally, we remand Saunders's case for resentencing
because the murder-for-hire plot of which he was a leader or organizer did
not involve five or more "participants."         U.S.S.G. § 3B1.1(a).


                                       I.


     The jury found that the defendants all participated in the drug-
dealing and strong-arm tactics of a Twin Cities gang called the Shotgun
Crips.   Dennell Malone and Jermaine Saunders were the ringleaders of the
operation.      They   imported   cocaine    from    California,   for   re-sale   in
Minnesota, through their source, Kenneth Washington (who apparently remains
a fugitive).    The operation included couriers who smuggled procaine (a
cutting agent used to make crack) from California to Minnesota; underlings
who helped convert cocaine powder into crack; and middle-men who bought
crack from the operation and sold it to others.            And in August 1994, the
operation employed the services of Calvin "Monster" Delpit, a Los Angeles-
based hitman, to intimidate a rival gang and competitor in the Twin Cities
drug market.


     We describe the evidence against the individual defendants in more
detail below.     For now, we will simply summarize the case against the
Malone/Saunders operation.    The case grew out of an investigation into the
Los Angeles Shotgun Crips' Minnesota




                                       -4-
outreach       efforts.      Beginning       in    May    1994,      government      agents   began
wiretapping telephones used by Larry Thomas, and they intercepted coded
conversations about drug-dealing.                 These conversations led the agents to
one of Thomas's customers, Tim Nelson, who agreed to cooperate with the
investigation.


        Thomas's drug source, the wiretaps revealed, was the Malone/Saunders
operation, and Thomas owed the operation a large sum of money.                         On June 7,
the police observed as Thomas passed a paper bag to Malone and Saunders
during a pre-arranged money drop.                  That night, Malone and Saunders told
Thomas he hadn't paid all the money he owed.                        Malone also tried to sell
Thomas a cellular phone, which, he suggested, would help them avoid
wiretaps.       Thomas continued to negotiate with Washington and Malone to
purchase more drugs, but because Thomas was so far behind in his payments,
they cut him off.            Thomas continued his relation with the operation,
though,       until   mid-July,       when    he     caught     on    that    they    were    being
investigated.


        Malone    and     Saunders,    however,         did   not    quit    their   drug-dealing
activities.       That same June, Malone was using three juveniles, including
his younger brothers, to sell drugs for him.1                               And in August, the
government       intercepted    phone        calls      between      Saunders   and    Washington
concerning a 15.6 kilogram cocaine shipment that had been intercepted in
Utah.       The calls revealed how Malone had set up the shipment and recruited
the failed courier.           The calls also suggested that at least one other
significant drug shipment had made it through to Minnesota.


        That same August, the government learned that Malone and Saunders had
hired Calvin Delpit, an L.A. hitman, to come to Minnesota and kill members
-- no one in particular, apparently --




        1
     All three young men pleaded guilty to drug-related offenses.
See United States v. D.A.M., 

(8th Cir. 1995).

                                                  -5-
of the Shotgun Crips' rival gang, the Vice Lords.       On August 26, Saunders
suggested that a local maternity ward would be a good place to catch one
prospective victim (a new father) unaware.          Malone and Saunders then
arranged for guns and a driver for Delpit so he could "put some work on
somebody."    Chanise Lynn drove Delpit around that night, and the next, but
they couldn't find anyone to kill.      Delpit called Saunders to tell him that
he and Lynn had found some potential victims, but the victims had seen him
creeping up to do the hit and had escaped.      Saunders urged Delpit to keep
trying, and agreed to send a partial payment of $1,500 to Delpit's wife in
California.    Saunders then outlined a new plan:   Delpit would follow a lead
car which would flash its brake lights to indicate vulnerable Vice Lords
nearby.   The police overheard Saunders's plan and responded with round-the-
clock surveillance on Delpit.


     The next day, August 28, Prado called Saunders to complain that he'd
seen Vice Lords driving by his mother's house.        Saunders told Prado he'd
better kill the Vice Lords before they got him first.     Prado suggested they
could ambush the Vice Lords that afternoon at a concert in downtown
Minneapolis, and Saunders put Prado in touch with Delpit.      A little later,
Prado picked up Delpit, and then Malone.      The group then split up into two
cars, with Prado and Malone in the lead and Delpit following by himself.
The police, concerned that the drive-by plan was about to go off, stopped
the cars.     Delpit tried to escape.     He pulled his gun, pointed it at an
officer, then threw the gun away, and ran off.        He was captured, and his
gun was recovered.    A second gun was found in his car.      Malone and Prado
were released because they were unarmed.     Later, the police overheard phone
conversations confirming that Prado, Malone, and Delpit had been planning
to do a drive-by shooting when they were apprehended.


     Meanwhile, the operation's drug activities continued.          A few days
later, Saunders sent Chanise Lynn to California to pick up




                                     -6-
some procaine.    Saunders asked Jai Jones, who was in Los Angeles, to help
Lynn get the procaine, and to accompany her back to Minnesota.              Jones and
Lynn arrived back in Minnesota with two black bags.            Prado met them at the
airport, dropped Lynn off at her house, and then he and Jones delivered the
procaine to Malone and Saunders.           While the police were getting a warrant
to search the house where Malone and Saunders had divided up the procaine
and were getting ready to "cook" the crack, people started leaving the
house.     The police stopped Jones and Prado, and found seven pounds of
procaine in their car.      Malone and another left next, and the police found
seven more pounds of procaine, a scale, a clone cellular phone, and almost
$5,000 in cash in the car.        Finally, Saunders and two others left.           The
police tried to stop them and, during a high-speed chase, Saunders threw
two guns and a backpack out of the car.           The police eventually caught the
car, arrested Saunders, and found the guns (both loaded).            They also found
three more pounds of procaine and a scale in the car.                 The next day,
someone turned the backpack over to the police.            It contained another clone
cellular phone, 1.5 kilograms of powder cocaine, wrapped in a special
fashion, just like the cocaine shipment that had been intercepted in Utah.


       The   government     brought    a   fifteen-count    indictment   against   the
defendants.      All but Delpit were included in Count 7, which alleged a
conspiracy to distribute crack cocaine.           21 U.S.C. § 846.   Delpit, Malone,
Saunders, Lynn, and Prado were charged with interstate travel with the
intent to commit murder-for-hire, 18 U.S.C. § 1958(a), and conspiracy to
violate § 1958(a).     The rest of the counts charged different defendants
with   various    drugs-,    fraud-,    and   weapons-related    crimes.2    All   the



       2
      Malone, Saunders, and Delpit were charged in Count 3 with use
of firearms in connection with a crime of violence, 18 U.S.C.
§ 924(c)(1); Delpit was charged in Count 4 with being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1); Saunders was
charged in Count 5 with possession with intent to distribute
cocaine, 21 U.S.C. § 841(a)(1), in Count 6 with use of firearms in
connection with drug trafficking, 18 U.S.C. § 924(c)(1), and in
Count 15 with obtaining cellular telephone services by fraud, 18
U.S.C. § 1029(a)(1); Malone was charged in Counts 9 and 8 with
aiding and abetting possession with intent to distribute and
distribution of cocaine base, 21 U.S.C. §§ 841(a)(1), in Count 10
with using minors in drug trafficking, 21 U.S.C. § 861(a)(1), and

                                            -7-
appellants but Prado




in Count 13 with obtaining cellular telephone services by fraud, 18
U.S.C. § 1029(a)(1); Lynn was charged in Count 11 with possession
with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1);
Malone, Saunders, Lynn, and Thomas were charged in Count 12 with
conspiracy to engage in drug trafficking, 21 U.S.C. § 846.

                               -8-
were convicted on all counts against them; the jury acquitted Prado on the
drug-conspiracy charge (Count 7).     Malone and Saunders received life
sentences; Delpit, 19 years; Thomas, 15 years and three months; Jones, nine
years and four months; Lynn, nine years; and Prado, eight years and one
month.


                                    II.


     This is a complicated case.   Many of the defendants' claims overlap
with others'; some arguments are raised by only one or a few.      We think
this opinion will be easier to follow if organized by shared claims and
arguments instead of by the individual defendants bringing them.


                              A.   Severance


     Six of the seven defendants -- all but Delpit -- insist that the
District Court should not have joined their cases with the others' and
should have granted their motions to sever.    The District Court found that
because "the conspiracies alleged are interconnected and encompass each of
the individual substantive counts, joinder of the defendants and counts is
proper."3   We will reverse the District Court's denial of the severance
motions only




     3
     Order (Dec. 30, 1994), adopted by Memorandum and Order (Jan.
18, 1995).

                                   -9-
if it abused its discretion, resulting in definite prejudice.                            United
States v. Darden, 

, 1526 (8th Cir. 1995), cert. denied, 116 S.
Ct. 1449 (1996).          In this case, the Court did not abuse its discretion, nor
have the defendants identified specific prejudice.


        Under Fed. R. Crim. P. 8(a), offenses may be joined if they are of
the same or similar character, or are based on the same act or transaction,
or on different acts or transactions which are part of a "common scheme or
plan."       Defendants may be joined if "they are alleged to have participated
in   the     same   act    or   transaction      or   in    the   same   series    of   acts   or
transactions constituting [the] offense . . .."                     Fed. R. Crim. P. 8(b).
See 

(joined defendants and counts were factually
interrelated).            Importantly,     not    every      defendant    joined    must    have
participated in every offense charged.                 United States v. Jones, 

, 62-63 (8th Cir. 1989).


        We agree with the District Court that joinder was proper in this
case.       All the defendants but Delpit were charged with the same, underlying
drug conspiracy (Count 7), and the government alleged that Malone and
Saunders       hired   Delpit    to   do   a     contract     killing    to   increase     their
operation's prestige and profits.              It doesn't matter that Larry Thomas and
Jai Jones had nothing to do with the murder-for-hire plot, or that Delpit
was not indicted for the drug conspiracy.                  As the District Court observed,
when violence is part of the conspiracy's modus operandi, "charges stemming
from that violence are properly joined with the conspiracy charges, even
if not all members of the conspiracy participated in the violence."4


        Even when Rule 8(a) permits joinder, a trial court may order separate
trials on different counts, or sever certain defendants'




        4
         Memorandum and Order, at p. 4 (Jan. 18, 1995).

                                               -10-
cases from others', to protect defendants' fair-trial rights.                   Fed. R.
Crim. P. 14; 

.           We read Rules 8 and 14 in favor of
joinder.      

  ("[A]   joint   trial   `gives    the   jury   the    best
perspective on all of the evidence and therefore increases the likelihood
of a correct outcome.'"); Zafiro v. United States, 

, 537 (1993)
(joint trials "avoid[] the scandal and inequity of inconsistent verdicts").
The presumption against severing properly joined cases is strong.                    It is
not enough that a defendant thinks his chances for acquittal would be
better in a separate trial, 

.             See Hollins v. Dept.
of Corrections, 

, 608 (8th Cir. 1992) (noting "heavy burden").



     Saunders complains because Delpit told the jury that he was a drug
dealer -- not a killer -- and that he came to the Twin Cities to broker
drug deals.   True, Delpit's defense did not put Saunders and the others in
the best light.     But co-defendants are often hostile to one another, and
one will try frequently to "point the finger," to shift the blame, or to
save himself at the expense of the other.          "Antagonistic" defenses require
severance only when "`there is a danger that the jury will unjustifiably
infer that this conflict alone demonstrates that both are guilty.'"              United
States v. De Luna, 

, 921 (8th Cir.) (citation omitted)
(emphasis added), cert. denied, 

(1985); see also 

; 

.            That danger was not present in
this case.


     The self-described "minor players" -- Thomas, Prado, Jones, and Lynn
-- argue that they were prejudiced by the extra courtroom security, the
gang affiliations and disruptive courtroom behavior of some defendants, the
spillover taint of the murder-for-hire charges and the evidence relating
to those charges, and by publicity and paranoia about "black gang-crime"
in the Twin Cities.      We reject all these claims.      Severance is not required
merely because evidence which is admissible only against some defendants




                                         -11-
may be damaging to others, United States v. Blum, 

, 1444 (8th
Cir. 1995), cert. denied, 

(1996); or because co-defendants
engage in disrespectful behavior in court, cf. United States v. Garrett,

, 745-46 (8th Cir. 1992) (odd and disruptive behavior of co-
defendant's counsel was not so prejudicial as to require severance); or
because the joint trial requires enhanced courtroom security.      See 

.      Nor is it enough for a defendant to claim, as Larry
Thomas does here, that he needed a separate trial to call a co-defendant
as a witness.     He must show (and he has not) that it is likely his co-
defendant actually would have testified and that this testimony would have
been exculpatory.    United States v. Anthony, 

, 538 (8th Cir.
1977), cert. denied, 

(1978).


        The Supreme Court has made it clear that the risk of prejudice posed
by joint trials is best cured by careful and thorough jury instructions
like those given by the District Court in this case.    See 

-41.    The District Court repeatedly instructed the jury -- using an
instruction drafted by the defense -- that the murder-for-hire evidence was
admissible only against the defendants charged with interstate murder-for-
hire.     The jury acquitted Prado and one other defendant on the drug-
conspiracy charge, which shows they were able to separate out the drug-
related evidence from the murder-related evidence.      See United States v.
Jackson, 

, 1217 (8th Cir. 1995), cert. denied, 

(1996).    The evidence simply does not support Thomas's charge that the jury
saw and judged the defendants as a "nine-headed monster."


        A defendant must show actual prejudice before we will reverse a
denial of a motion for severance.    None of the defendants has made such a
showing, and the District Court did not abuse its discretion.   We think the
Court did a good job managing this very difficult case.      In re-affirming
the   law's preference for joint trials, we do not endorse guilt by
association.    Instead, we




                                     -12-
presume,    as   we    must,   that   juries    can   and   do   follow     instructions
conscientiously,       evaluate   evidence     carefully,    and    judge     defendants
individually.


    B.     Sergeant Murphy's Interpretation of the Coded Conversations


     The government's investigation and prosecution depended heavily on
wiretapped telephone conversations; about 100 of these conversations were
introduced at trial.       These conversations were tricky for at least three
reasons.   First, many of the speakers used slang, or street jargon (e.g.,
"straps" for "guns" and "mix" for "procaine").                   Second, many of the
conversations were in code (e.g., "let's go play ball" for "let's do a
cocaine deal").       Third, the speakers often stuck the syllable "iz" in the
middle of words, resulting in a kind of "pig latin" (e.g., "kiz-ar" means
"car," and "shiz-ootin" means "shooting").


     Sergeant James Murphy prepared transcripts of the wiretap evidence
with translations of the "pig latin" words in brackets and, at trial, he
identified most of the taped conversations.             He also gave the jury his
opinion about the meaning of certain code words and slang terms.                   Lynn,
Delpit, Jones, and Saunders argue that Sergeant Murphy's testimony went
beyond interpretation to speculative, prejudicial, testimony.                  As Jones
puts it, Sergeant Murphy's explanations and translations were only his
opinions that the defendants were guilty.         The defendants also insist that
Sergeant Murphy's testimony was unnecessary, because the jury could easily
have interpreted the tapes on its own, and they contend that the District
Court committed reversible error by allowing the testimony.                 We disagree.



     Saunders cites the following exchange as an example of Sergeant
Murphy's allegedly over-creative interpretation:


     [Thomas's Voice]:            "You at least have a shade over some




                                         -13-
           motherf*****, man!"


Sergeant Murphy interpreted this statement:


           I don't believe he liked . . . having to meet out
           in the open like that.


Delpit provides another example:


     [Saunders's Voice]       The ni**** got my, um, I can't really even
                              like let ah, him handle his business cuz I
                              can't get to no straps. He got like two of my
                              straps. You know what I'm saying?


Sergeant Murphy, when asked what this meant, said:


           Dennell Malone has two of Jermaine Saunders' guns.
           He can't let Monster go out and take care of the
           business that he was up there for[,] to shoot some
           Vice Lords.


A third example:    Saunders said, on tape, "He was fittin to liz-iz-iz-ay
some down."     Sergeant Murphy testified that to "lay some down" meant to
kill someone.    And when asked whom Saunders was talking about, Sergeant
Murphy said, "The Vice Lords."


     It is well established that experts may help the jury with the
meaning of jargon and codewords.   See, e.g., United States v. Lowe, 

, 47 (8th Cir. 1993), cert. denied, 

(1994).      There is no
more reason to expect unassisted jurors to understand drug dealers' cryptic
slang than antitrust theory or asbestosis.    See United States v. Scavo, 

, 844 (8th Cir. 1979) (gambling conversations which were "virtually
incomprehensible to the layman, are fraught with meaning to a person
familiar with gambling enterprises").        We have no doubt that Sergeant
Murphy is an "expert" or that he was able to assist the District Court and




                                    -14-
explain the defendants' slang to the jury.           The argument that Murphy was
unqualified because he lacks degrees or advanced training in the field is
silly.   Sergeant Murphy has learned drug dealers' jargon through nearly 30
years of on-the-job experience, the best education there is for this type
of thing.     See United States v. Hoffman, 

, 1310 (1st Cir.
1987) ("[H]ard-core drug trafficking scarcely lends itself to ivied halls.
In a rough-and-ready field such as this, experience is likely the best
teacher.")    And, after reviewing many of the wiretapped conversations, we
cannot agree with the defendants that the tapes were so clear that Sergeant
Murphy's testimony was unnecessary.5


     That said, we agree that Sergeant Murphy appears on occasion to have
gone beyond merely translating straightforward terms.             But even if the
Sergeant's testimony did, at times, "go [ ] beyond the plain meaning of the
recorded     conversation[s],"   we   must   still   decide   whether   there   is a
"significant possibility" that this testimony had a "substantial impact on
the jury."    United States v. Sanchez-Sotelo, 

, 210-211 (5th Cir.
1993) (agent's testimony went beyond the plain meaning of the recorded
conversation, but jury could have inferred the defendant's guilt from other
evidence), cert. denied, 

(1994).          We are sure it did not.
Sergeant Murphy's occasional elaborations referred to or were supported by
other evidence.    For example, when Sergeant Murphy testified that "Monster"
was in town to "shoot some Vice Lords," this testimony was based on other
recorded conversations, also in evidence, about Delpit's having been
recruited to kill Vice Lords.     See United States v. Fregoso, 

,
1328 (8th Cir. 1995) (defendant failed to prove prejudice because expert's
testimony about drug smuggling was




     5
      It appears the defendants don't really believe this either.
Prado's brief notes that Sergeant Murphy had to interpret
"Saundersease," a "combination of hybrid pig latin and street slang
which is difficult to understand until one is accustomed to it."
Jones concedes as much in his brief as well.

                                       -15-
similar in kind to other evidence).


        The District Court instructed the jury that it was not bound by the
opinion of any expert.     See United States v. Daniels, 

, 33 (8th
Cir. 1983) (any possibility of undue prejudice from expert's interpretation
of gambling jargon was removed by trial court's careful instructions)
(citing 

).      In fact, Delpit brought in an expert of
his own to dispute some of Sergeant Murphy's interpretations.                   We are
confident that Sergeant Murphy's occasionally expansive translations --
which    were,   again,   grounded   in    other   evidence   --    did   not   have   a
"substantial impact" on the jury.         See 

; United States
v. Carrazana, 

, 1568 (11th Cir.) (any error in expert's
interpretation of defendants' slang was harmless), cert. denied, 

(1991); cf. United States v. Dicker, 

, 1110-11 (3d Cir.
1988) (where recorded conversations were perfectly clear, and expert's
testimony    repeatedly    supplemented      the   conversations,     testimony    was
prejudicial and required a new trial).


                           C.   Other Evidence Issues


        Several defendants raise other evidence-related claims.           We will not
overturn a trial court's decision concerning the admissibility of evidence
absent abuse of discretion.     See, e.g., United States v. Roulette, 

, 423 (8th Cir. 1996).


        1.   Delpit's Prior Felony Convictions


        Calvin Delpit was charged, in Count 4 of the indictment, with being
a felon in possession of a firearm.           18 U.S.C. § 922(g)(1).        The prior
felonies alleged were credit-card fraud and rape.                  Delpit offered to
stipulate to the existence and number of prior felonies, but the government
declined.     Delpit therefore decided to plead guilty to the felon-in-
possession count.     He now claims "[h]e had




                                          -16-
no other choice" and argues that the District Court abused its discretion
by not ordering the government to stipulate to his prior offenses or
granting his motions to sever or to strike.


     As Delpit candidly admits, "the government is not bound by . . . an
offer to stipulate and . . . it is not error to allow the government to
introduce more than one conviction in a case where only a single conviction
is necessary . . .."    United States v. Garner, 

, 1311 (8th Cir.
1994), cert. denied, 

(1995).     He argues, though, that the
Court did not adequately consider the danger his prior rape conviction
posed to his chances for an impartial verdict on the murder-for-hire
charges.   In Delpit's view, the Court "forced" Delpit to choose between an
unfair trial on all the charges against him and giving up his jury-trial
right on the felon-in-possession count.


     Delpit decided it was in his best interest to plead guilty instead
of going to trial.     No doubt, this was a difficult decision, but it was no
different from the hard choices made by thousands of defendants every day.
Perhaps, in an extraordinary case, a trial court's allowing the government
to refuse to stipulate to a prior conviction would create such clear and
compelling prejudice as to be an abuse of discretion, see United States v.
Bruton, 

, 825 (8th Cir.) ("[A] case might be imagined where
proof of a plurality of convictions would be prejudicial . . .."), cert.
denied, 

(1981); Romano v. Oklahoma, 

, 2013
(1994) (O'Connor, J., concurring) ("It may well have been better practice
for the State to agree to accept petitioner's stipulation offer . . .."),
but this is not such a case.6


     6
      Delpit's reliance on United States v. Poore, 

(4th
Cir. 1979), is misplaced. In Poore, the government accepted the
defendant's stipulation.     

   The court held that,
because the government accepted the stipulation, the district court
erred by not redacting references to the stipulated offense from
the indictment.      Poore has nothing to do with whether the
government must accept a defendant's offer to stipulate.        See

(noting that government "is not required to
accept defendant's proffered general stipulation of conviction of
felony . . . in lieu of offering proof thereon") (citing United
States v. Smith, 

, 548 (8th Cir. 1975), cert. denied,

                                     -17-
        2.   Delpit's Nickname


        Delpit's unfortunate nickname is "Monster."    Before trial, he moved
to strike this nickname from the indictment.        The District Court denied
this motion, correctly noting that "the use of this name is necessary to
fully identify . . . Delpit."    Delpit now claims he was denied a fair trial
because the government's "continued and repeated reference to his nickname
was tantamount to testimony about his character . . .."      We disagree.   In
some cases, the use of a defendant's irrelevant nickname to suggest his bad
character or unsavory proclivities may be prejudicial, see, e.g., United
States v. Williams, 

, 299-300 (7th Cir. 1984), but this is not
such a case.     There was no way for the jury to avoid hearing Delpit's
nickname, because he was referred to in the wiretaps almost exclusively as
"Monster."


        3.   Mention of Murdered Police Officers


        In one taped phone call, Saunders and Malone discussed how Malone,
Delpit, and Prado were stopped by the police on their way to do a drive-by
shooting.    Malone complained that the officers who stopped them had their
badge numbers covered with black tape.      He said the tape was on the badges
because of the "two clowns" (police officers) who "got smoked over on the
other side of town."   Malone also said the officers had harassed him, and
that he was going to tell his lawyer that the officers had hidden their
badge numbers.      When this tape was played at trial, Sergeant Murphy
explained that the officers had small black ribbons on their badges
honoring two officers who had been killed recently in the line of duty.
Prado

(1976)).

                                     -18-
and Jones now argue that the District Court abused its discretion by
allowing Sergeant Murphy to explain the ribbons.       They claim that the
mention of the two dead police officers was far more prejudicial than
probative.   Jones says that he was particularly prejudiced because he had
nothing to do with the murder-for-hire plot.     We disagree.   Even if the
reference to the murdered officers as "clowns" could have reflected badly
on Malone and Saunders, we believe this isolated incident did not prejudice
Prado or Jones.


     4.      Co-conspirators' Statements


     Dennell Malone states that the District Court abused its discretion
in admitting statements by his co-conspirators.       This claim is poorly
developed; it appears Malone is simply restating his argument that his
trial should have been severed from his co-defendants'.   He suggests that
"because there were multiple conspiracies" (which, he argues, should have
been tried separately) "the trial court should have been more scrupulous
in determining the admissibility of what would otherwise be hearsay and
give meaningful cautionary instructions."   We do not know which statements
Malone is objecting to; he identifies none.   We can only note, once again,
that, as Malone admits, the District Court was careful to instruct the jury
that certain evidence was admissible only on the murder-for-hire counts,
or against the murder-for-hire defendants, and not on the drug counts.


     5.      Guns Evidence


     Jai Jones contends he was denied a fair trial because the District
Court admitted various guns into evidence, guns which had nothing to do
with the case against him.    True, guns were admitted into evidence which
had nothing to do with Jones, but the government never argued otherwise.
And just because the guns were not relevant to the charges against Jones
does not mean they were not admissible against his co-defendants.     It is
a simple fact of




                                   -19-
joint trials that some evidence is relevant to and admissible against only
some defendants.      The proper response is to instruct the jury, as the
District Court did in this case, that the evidence -- here, the guns -- is
admissible against some defendants but not others.       In any event, Jones has
not proved, or even alleged with specificity, any prejudice, so there was
no abuse of discretion.


                 D.   Use of Transcript in Jury Deliberations


     Jermaine     Saunders   argues   that    the   District   Court    abused   its
discretion by allowing the jury to use transcripts of the wiretapped
conversations during trial and deliberations.         First, Saunders complains
that the government did not give the defendants enough time to evaluate the
transcripts to insure their accuracy.        Next, he says that the transcripts
were not "objectively verifiable" translations of the recordings; instead,
they included the government's "prefabricated subjective interpretations
of conversations that were recorded in English."          Saunders also insists
that there was no need for the transcripts, because the tapes themselves
were clear and audible, and the speakers were identified in Sergeant
Murphy's testimony.    See United States v. McMillan, 

, 105 (8th
Cir. 1974) ("[T]he need for . . . transcripts is generally caused by two
circumstances:   inaudibility of portions of the tape . . . or the need to
identify the speakers."), cert. denied, 

(1975).           In Saunders's
view, the transcripts distorted, and distracted the jury's attention from
the real evidence -- the tapes themselves.


     It is well settled that the jury may use transcripts of wiretapped
conversations during trial and deliberations.       See United States v. Byrne,

, 990 (8th Cir. 1996); United States v. Riascos, 

,
443-44 (8th Cir. 1991); 

.       Saunders has not identified any
particular inaccuracies in the transcripts.         It was not "inaccurate" for
the government to include, in brackets, translations of the "pig latinisms"
on the




                                      -20-
tape (i.e., to take out the "iz" syllable, when appropriate).       We also note
that the defense lawyers prepared transcripts of their own, which were also
given to the jury.       For all we know, the jury never even looked at the
government's transcripts, only at the defendants'.       Most importantly, the
District Court instructed the jury, diligently and repeatedly, as it was
required to do, that the tapes themselves, not the transcripts, were
evidence.      See United States v. Foster, 

, 1203 (8th Cir.
1987).      We assume the jury did as it was told.


                               E.   Jury Instructions


       Chanise Lynn and Dennell Malone object to the District Court's
reasonable-doubt instruction, and Jai Jones and Malone contend that the
District Court should have given a multiple-conspiracy instruction.            We
reject both these claims.


       1.      Reasonable-Doubt Instruction


       The District Court instructed the jury as follows:


               Reasonable doubt is a doubt based on reason and
               common sense and not the mere possibility of
               innocence. A reasonable doubt is the kind of doubt
               that would make a reasonable person hesitate to
               act.

               Proof beyond a reasonable doubt, therefore, must be
               proof of such a convincing character that a
               reasonable person would not hesitate to rely and
               act upon it in the most important of his or her own
               affairs. However, proof beyond a reasonable doubt
               does not mean proof beyond all possible doubt.


Lynn and Malone object to the "mere possibility of innocence" language.
Lynn     argues   that   the   reasonable-doubt   instruction   "misdefined   the
government's burden" by suggesting a "more likely than not," or "clear and
convincing," rather than a "beyond a




                                        -21-
reasonable doubt," standard of proof.      Malone raises similar objections.


     The "beyond a reasonable doubt" standard is a bedrock due-process
requirement, but, like most constitutional standards, it does not come in
a ready-made package.   See Victor v. Nebraska, 

, 1243 (1994)
("[T]he Constitution does not require that any particular form of words be
used in advising the jury of the government's burden of proof.")     We have
repeatedly rejected challenges to the "mere possibility of doubt" language
used in this case.   See United States v. Simms, 

, 593 (8th Cir.
1994); United States v. Mabry, 

, 249 (8th Cir. 1993), cert.
denied, 

(1994); see also 

(rejecting challenge to "not a mere possible doubt" language).           The
instruction used in this case strikes us as a helpful and accurate way of
communicating the correct standard of proof to the jurors.     After all, it
is possible to have doubts that are not reasonable.


     2.    Multiple-Conspiracy Instruction


     Jones and Malone insist that there were three drug conspiracies
involved in this case, and that the District Court erred in refusing to
give a multiple-conspiracy instruction.    There may have been common actors,
he argues, but there were several separate criminal agreements.       Malone
urges a similar argument.   A trial court should give a multiple-conspiracy
instruction when, and only when, the evidence supports it.     United States
v. Jackson, 

, 1367 (8th Cir. 1995), cert. denied, 

(1996).


     The Malone/Saunders operation involved several players with different
tasks, but Jones and Malone point to no evidence that undercuts the
government's theory that these players and tasks were part of a single
conspiracy, the one charged in Count 7.      See




                                    -22-
United States v. Cabbell, 

, 1262 (8th Cir. 1994) (although
"`various   defendants   entered   the   conspiracy   at   different   times   and
performed different functions, the conspiracy had one criminal objective:
to sell large quantities . . . [of] drugs'"); United States v. Lucht, 

, 553 (8th Cir.) (separate transactions do not prove separate
conspiracies), cert. denied, 

(1994).        There was no need for
a multiple-conspiracy instruction.


      E.    Sufficiency of the Evidence:     Interstate Murder-for-Hire


     Saunders, Thomas, Prado, Jones, and Lynn all claim that the evidence
was insufficient to support their convictions.        In this Part, we discuss
only Saunders's, Lynn's, and Prado's challenges to their murder-for-hire
convictions (Counts 1 and 2); we discuss the other sufficiency-of-the-
evidence arguments in Part G, infra.     As the defendants are well aware, it
is hard to win on an insufficiency claim:             they must show that no
reasonable jury could have found them guilty beyond a reasonable doubt.
We review and interpret the evidence in the light most favorable to the
jury's verdict.   See United States v. Horne, 

, 587, 589 (8th Cir.
1993), cert. denied, 

(1994).


     The defendants face long prison terms.       Although we will not recite
all the evidence introduced at trial, we have reviewed that evidence
closely and given careful consideration to the defendants' arguments.          For
the reasons outlined below, we affirm the convictions of Jai Jones,
Jermaine Saunders, and Larry Thomas.          We also affirm Chanise Lynn's
possession-with-intent-to-distribute conviction.           We reverse Lynn's and
Zackarrie Prado's murder-for-hire convictions.        Lynn and Prado may well
have aided and abetted an attempted murder, and conspired to commit murder,
but these are not federal crimes.


     Our Constitution is a charter for a federal government of




                                     -23-
limited   powers,   and   under    this   charter   the   "States   possess   primary
authority for defining and enforcing the criminal law."             Engle v. Isaac,

, 128 (1982).         But the Constitution gives Congress the power
to regulate interstate commerce, U.S. Const., Art. I, § 8, cl. 3, and
§ 1958(a), which outlaws interstate murder-for-hire, is unquestionably a
valid exercise of this power.        Section 1958(a) provides:


            Whoever travels in or causes another (including the
            intended victim) to travel in interstate or foreign
            commerce, or uses or causes another (including the
            intended victim) to use the mail or any facility in
            interstate or foreign commerce, with intent that a
            murder be committed . . . as consideration for the
            receipt of, or as consideration for a promise or
            agreement to pay, anything of pecuniary value . . .
            [is guilty of a crime against the United States].


So, to convict the defendants under this statute, the government had to
prove that they (1) travelled or caused another to travel in interstate
commerce, (2) with the intent that a murder be committed, (3) for hire.
United States v. McGuire, 

, 1186 (8th Cir.), cert. denied, 

(1995).   One can also be convicted, of course, for conspiring
or aiding and abetting in connection with this offense.


     This statute is relatively straightforward, both in what it prohibits
and in what it does not reach.        It does not prohibit murder or attempted
murder.   Instead, it outlaws using interstate-commerce facilities with the
intent that murder-for-hire be committed.           Once the interstate-commerce
facility is used with the required intent the crime is complete.              One who
travels or causes another to travel in interstate commerce with the
necessary




                                          -24-
murderous intent need not do anything else to violate the statute.7    See

.   It is clear, moreover, that a defendant can
violate § 1958(a) without actually hurting or killing anyone, because the
statute provides for enhanced punishment when death or injury results from
the defendant's violation of the statute.8     If there were any doubt, it
would be dispelled by the clear legislative history:


             The gist of the offense is the travel in interstate
             commerce or the use of the facilities of interstate
             commerce or of the mails with the requisite intent
             and the offense is complete whether or not the
             murder is carried out or even attempted.


S. Rep. No. 225, 98th Cong., 2d Sess. 306 (1984), reprinted in,




     7
      Compare § 1958(a) with the Travel Act, 18 U.S.C. § 1952(a),
which provides in part:

(a) Whoever travels in interstate or foreign commerce or uses the
mail or any facility in interstate or foreign commerce, with intent
to--
     (1) distribute the proceeds of any unlawful activity; or
     (2) commit any crime of violence to further any unlawful
          activity; or
     (3) otherwise promote, manage, establish, carry on, or
          facilitate the promotion, management, establishment, or
          carrying on, of any unlawful activity,

and thereafter performs or attempts to perform--

             (A)   an act described in paragraph (1) or (3) [shall be
                   punished]; or
             (B)   an act described in paragraph (2) [shall be
                   punished].

(emphasis added).
         8
       "[Whoever violates the statute] shall be fined under this
title or imprisoned for not more than ten years, or both; and if
personal injury results, shall be fined under this title and
imprisoned for not more than twenty years, or both; and if death
results, shall be punished by death or life imprisonment, or shall
be fined not more than $250,000, or both." 18 U.S.C. § 1958(a).

                                    -25-
1984 U.S.C. Cong. & Admin. News 3182, 3485.


        1.     Jermaine Saunders


        To convict Saunders of violating § 1958(a), the government had to
prove that (1) Saunders caused Delpit to travel in interstate commerce, (2)
he or Delpit intended that a murder be committed in violation of Minnesota
law, and (3) the murder was to be committed for hire.    

.       Saunders insists he was across town the day Delpit, Malone, and
Prado were plotting the drive-by shooting, and that the government's theory
of his role in the plot is based "solely and exclusively on Sgt. Murphy's
interpretation of several telephone conversations."      In our view, though,
Sgt. Murphy's testimony provided ample evidence against Saunders.    Saunders
recruited Delpit to come to Minnesota and kill Vice Lords; he was the one
to whom Delpit reported after his failed hit; he told Delpit to keep
trying, and agreed to send Delpit's wife a partial payment of $1,500; and
he organized the August 28 two-car assassination plan.    It does not matter
whether he was "across town" when the murder was to take place.            A
reasonable jury could have found that he caused Delpit to travel, with the
intent that Delpit would commit murder-for-hire, and also that he conspired
to violate § 1958(a).


        2.     Chanise Lynn


        Ms. Lynn helped Delpit, at Saunders's request, seek out Vice Lords
to kill.       By this point, though, the § 1958(a) violation was complete.9
Malone and Saunders had already caused Delpit to travel, and Delpit had
already travelled, with the requisite intent that a murder-for-hire be
committed.      The government insists that




        9
      The evidence suggested that Delpit had arrived in the Twin
Cities by August 24, and that Chanise Lynn was recruited as
Delpit's driver on August 26 and 27.

                                      -26-
"[t]he attempted murder-for-hire and the related conspiracy continued for
another week and Lynn played an integral role in it," but that does not
matter.       Section 1958(a) is not a murder statute; it is a carefully-drafted
federal criminal law of constitutionally limited scope.


        Because the crime was complete when Delpit arrived in Minnesota, Lynn
did not--she could not--aid or abet the crime's perpetrators.      If anything,
she was an accessory after the fact (for which she was not charged).10       As
Chief        Judge Posner noted recently, Judge Learned Hand's "canonical"
definition of aiding and abetting requires "not only that the defendant
have aided his principal to commit a crime but also that he have wanted the
principal to succeed in committing it.         Obviously this rules out . . .
cases in which the defendant was a mere accomplice after the fact . . .."
United States v. Ortega, 

, 507 (7th Cir. 1995) (citing United
States v. Peoni, 

, 402 (2d Cir. 1938)); see Nye & Nissen v.
United States, 

, 620 (1949) ("Aiding and abetting . . . states
a rule of criminal responsibility for acts which one assists another in
performing.")        We regularly instruct juries that a person may be found
guilty of aiding and abetting if, before or at the time the crime was
committed, he knew the offense was being committed or was going to be
committed; he knowingly acted to encourage, aid, or cause the offense; and
he intended that the offense be committed.        See Eighth




        10
      We made clear the distinction between accessories after-the-
fact and aiders and abettors in United States v. Brown, 

(8th Cir. 1994):       "`The very definition of the crime
[accessory after the fact] also requires that the felony not be in
progress when the assistance is rendered because then [the person]
who renders assistance would aid in the commission of the offense
and be guilty as a principal.'" 

(quoting United States
v. Barlow, 

, 1252-53 (D.C. Cir. 1972)); see United
States v. Innie, 

, 852 (9th Cir. 1993) ("Unlike one who
aids or abets a crime . . . , an accessory after the fact does not
agree to commit the crime . . .."), cert. denied, 

(1994).


                                        -27-
Circuit Model Jury Instructions § 5.01 & n.4 (West 1996) (citing United
States v. Jarboe, 

, 36 (8th Cir.), cert. denied, 

(1975)); United States v. Duranseau, 

, 809 (8th Cir.), cert.
denied, 

(1994).      Lynn's conviction on Count 1 must be
reversed because the government presented no evidence suggesting that Lynn
aided and abetted Malone and Saunders in recruiting Delpit or that she
aided and abetted Delpit's interstate travel.


     It follows that Lynn's conviction for conspiracy to violate § 1958(a)
must also be reversed.    To prove a conspiracy, the government needed to
prove an agreement, between at least two people, the objective of which was
to violate federal law.   See United States v. Jenkins, 

, 1287
(8th Cir. 1996).   Lynn joined the plot to kill Vice Lords after the object
of the conspiracy charged in Count 2 was accomplished.      The government
presented no evidence suggesting that Lynn conspired to cause Delpit to
travel, or that she conspired with Delpit to travel, with the intent that
a murder-for-hire be committed.   In the end, she may have been party to an
attempted murder in Minnesota, but that is not -- nor, standing alone,
could it ever be -- a federal crime.11




      11
       This case is different from our recent decision in United
States v. Baker, 

, 275-76 (8th Cir. 1996). In that
case, Baker, a police officer, extorted a payment from an arrested
motorist, who withdrew money from an automated teller machine (ATM)
to pay the bribe. Baker was convicted under the Travel Act, 18
U.S.C. § 1952(a), and argued on appeal that his act of extortion
lacked the required effect on interstate commerce.       This Court
disagreed, noting that the ATM was a "facility in interstate or
foreign commerce," which Congress was entitled to regulate and to
protect, even from wholly intrastate activity.       In Baker, the
defendant argued that the United States could not prosecute him
because there was no jurisdictional "hook," no "nexus" with
interstate commerce. In this case, though, the question is simply
whether or not the government introduced sufficient evidence to
permit a reasonable jury to conclude that the elements of a
§ 1958(a) violation had been proved against Lynn.

                                    -28-
     3.    Zackarrie Prado


     Prado was acquitted on the drug-conspiracy count (Count 7), but, like
Lynn, convicted of the interstate murder-for-hire charges (Counts 1 and 2).
Prado makes the implausible argument that the government's wiretap evidence
shows only that he was concerned about Vice Lords harassing his mother, not
that he had anything to do with an assassination scheme.    We think it quite
clear that Prado, Malone, and Delpit planned to kill some Vice Lords, and
that Prado knew exactly what was going on.   We reverse his murder-for-hire
convictions, though, for the reason discussed above:       The government did
not prove that Prado committed a federal crime.   As with Chanise Lynn, the
government failed to prove that Prado violated § 1958(a), or that he
conspired to do so, because there was no evidence that Prado had any
involvement in the murder plot before the federal crime with which he was
charged was complete.


           F.   Sufficiency of the Evidence:   Other Convictions


     Larry Thomas, Jai Jones, Chanise Lynn, and Jermaine Saunders all
argue that the evidence against them was insufficient to support their
drug-related convictions.    We affirm the convictions.


     1.    Jermaine Saunders


     Saunders contends that his conviction for using or carrying a firearm
during a crime of violence, 18 U.S.C. § 924(c)(1), must be reversed
because, under Bailey v. United States, 

(1995), he is not
liable for Delpit's gun use.   We don't think Bailey helps Saunders.   There
is no question but that Delpit carried a firearm during a violent crime;
in fact, he pointed it at a police officer before fleeing.       Saunders was
convicted of aiding and abetting Delpit, 18 U.S.C. § 2, and therefore
"stepped into Delpit's shoes" for purposes of § 924(c)(1):     "[T]he acts of
the principal become those of the aider and abettor as a matter of




                                    -29-
law."    United States v. Simpson, 

, 1284-86 (8th Cir. 1992)
(emphasis omitted), cert. denied, 

(1993); see Pereira v.
United States, 

(1954).     Saunders claims he didn't know Delpit
was carrying a gun, but the jury, quite reasonably, found otherwise.


        As for Count 8 (attempted possession with intent to distribute the
15.6 kilograms of cocaine seized in New Mexico), Saunders again insists
that Sgt. Murphy's testimony and the wiretap evidence are insufficient to
support his conviction.        Saunders claims the government presented no
evidence connecting the New Mexico seizure to his alleged drug operation
in Minnesota.     We disagree.     To convict Saunders on this Count, the
government had to prove that he "intended to possess and distribute the
cocaine, and that he took a substantial step toward that goal . . .."
United States v. Searing, 

, 964 (8th Cir. 1993).        The jury
heard conversations between Saunders and Washington, and between Saunders
and Malone, discussing the seizure of the cocaine shipment they had
arranged and were expecting.    Saunders told several people that he had been
hit with a loss of 15 "things" (kilograms of cocaine).          The evidence
supported the jury's decision.


        2.   Larry Thomas


        Thomas contends that the evidence against him was insufficient to
support his convictions for conspiracy to distribute cocaine base (Count
7), 21 U.S.C. § 846, and distribution of cocaine base (Count 9), 21 U.S.C.
§ 841(a)(1).    Regarding Count 9, Thomas says Tim Nelson's testimony that
Thomas sold him drugs was the only evidence against Thomas, and, therefore,
the jury's verdict was unreasonable.        Nelson told the jury that Larry
Thomas was "one of the nicest persons that you would want to know," but he
also testified that he bought about 1.5 kilograms of crack from Thomas over
a six-month period.     Thomas thinks the jury should not have believed
Nelson, and recites a 10-point litany why Nelson's




                                     -30-
testimony is unreliable (e.g., Nelson was a paid informant, Nelson cut a
deal to avoid prosecution, Nelson did not wear a body wire, etc.).     But,
as Thomas admits, these points came out, in one form or another, at trial,
and it is the jury's business whom it chooses to believe.


        Next, Thomas claims his conspiracy conviction (Count 7) must be
reversed because the only evidence against him was (1) that a police
officer saw him and Malone exchange a bag (an exchange Thomas insists was
perfectly innocuous) and (2) coded phone conversations, none of which,
Thomas contends, connect him to a drug conspiracy.    Thomas says the calls
were about women, sports, and a truck sale, not drugs.   In the end, though,
Thomas    is arguing that the jury was unreasonable for believing the
government's "spin" on the evidence instead of Thomas's.


        As we said above, we think the evidence against Thomas shows that he
was buying drugs from the Saunders/Malone operation and selling drugs to
others.    The question remains, was he a part of the conspiracy charged in
Count 7 of this indictment?     In this Circuit, a series of drug deals for
resale can prove a conspiracy to distribute.    See United States v. Eneff,

, 105 (8th Cir. 1996).   The jury could reasonably have concluded
that Thomas had an ongoing arrangement with Washington, Saunders, and
Malone that they would front him with drugs for resale.      The jury heard
tapes     in which Thomas and Saunders confirmed that the bag exchange
described above was a drug-related money drop.      It heard Thomas ask for
more drugs from Malone and Saunders, and they heard Thomas rebuffed because
he was behind on his debt.       And the jury heard tapes suggesting that
Washington, through Malone and Saunders, was Thomas's ultimate drug source.
Thomas argues that the bag exchange was not what the government said it
was, but the jury found otherwise.      Thomas says that the various phone
calls don't mean what Sergeant Murphy said they meant, but the jury
believed Sergeant Murphy.    Finally, as we discussed above, the evidence




                                    -31-
proved that Thomas was selling drugs to others.            We affirm the conviction.


     3.       Jai Jones


     Jones was convicted of the Count 7 conspiracy and, like Thomas,
contends the evidence was insufficient to support his conviction.                  He says
his conviction was based solely upon his transportation of procaine, "a
lawful substance," and on approximately five telephone conversations with
Saunders about obtaining the procaine.                  In effect, Jones admits he
transported the procaine, but insists that he thought what he was doing was
legal.    But the jury heard evidence that Jones talked in code about the
procaine; that he took precautions, on instructions from Malone, to avoid
being caught with it; and that he delivered it to Malone and Saunders, who
were waiting for the procaine so they could make crack.                      The jury also
heard evidence of Jones's experience with drug-dealing, and apparently
thought he knew exactly what the procaine was for.              The evidence supports
the jury's verdict.


     4.       Chanise Lynn


     Lynn also argues that the evidence does not support her conspiracy
conviction.    We disagree.      The evidence suggested that Lynn was a regular
courier for the Saunders/Malone operation; that she went to California, on
Saunders's    orders,     to   get   procaine;    and   that   she    occasionally      kept
contraband and money for the conspiracy at her residence.                     A reasonable
jury could have found that Lynn knew of, and intentionally joined, the drug
conspiracy charged in Count 7.


     Chanise     Lynn   also    contends    the   evidence     does    not    support   her
conviction for possession with intent to distribute crack.               The government
found and seized 3.7 grams of crack -- 20 individually wrapped rocks -- at
her residence.    At trial, Lynn simply denied




                                           -32-
that the drugs were hers.     She now argues that 3.7 grams is too small an
amount to support the inference that she intended to distribute the crack.
It is a close call, but we disagree.


     Possession of such a small amount of drugs, standing alone, is an
insufficient basis from which to infer intent to distribute.   United States
v. Buchanan, 

, 1377 (8th Cir. 1993), cert. denied, 

(1994).    See United States v. Gordon, 

, 125-26 (8th Cir.
1991) (one ounce of cocaine, standing alone, would not have been enough to
support inference of intent to distribute); United States v. White, 

, 684 (8th Cir. 1992) (7.5 grams of cocaine was insufficient,
standing alone, to support inference of intent to distribute, but as little
as 5 grams could be sufficient, if accompanied by circumstantial evidence);
United States v. Stephens, 

, 557 (D.C. Cir.) (5.9 grams of crack
was not enough to support inference of intent to distribute), cert. denied,

(1994).     Of course, we don't look at the amount of drugs
alone; even a small amount, if bolstered by other evidence, can show intent
to distribute.     United States v. Johnson, 

, 458 (8th Cir.
1992).   For example, we have held that the drugs' purity level, or the
presence of cash, drug paraphernalia, firearms, and other evidence of drug-
dealing, are all factors that can support an inference of intent to
distribute.    See United States v. Brett, 

, 1369-70 (8th Cir.),
cert. denied, 

(1989); United States v. Shurn, 

,
1093 (8th Cir. 1988).


     The government introduced no evidence, from among the many wiretapped
conversations or from their search of her residence, that Lynn ever dealt
drugs herself.    But she was a member of a drug-dealing conspiracy, and the
government's expert witness testified that the drugs found in her room were
packaged for distribution.     Her defense at trial was that the drugs were
not hers, but the jury obviously did not believe her.     We do not know how
we would have voted if we had been on the jury, but we cannot




                                     -33-
quite say that a reasonable juror could not have found beyond a reasonable
doubt all the elements of possession with intent to distribute.


                               G.    Sentencing Issues


       Dennell Malone, Larry Thomas, and Jermaine Saunders challenge their
sentences.     We reject most of their arguments, but remand Saunders's case
for resentencing because he did not organize or lead five "participants"
in the murder-for-hire plot.


       1.      Crack/Cocaine Powder Disparity


            Under the Sentencing Guidelines, a gram of crack cocaine is
"worth," for sentencing purposes, 100 times as much as a gram of cocaine
powder.     U.S.S.G. Guideline Manual § 2D1.1.          This is a harsh rule.       Malone
argues that the 100-to-1 ratio is "obsolete," and Thomas insists it is
unconstitutional because of its disparate impact on black defendants.                   We
are bound by precedent to reject these arguments.                 See United States v.
Jackson, 

, 1367-68 (8th Cir. 1995), cert. denied, 

(1996).


       2.      Evidentiary Hearing


       Malone    complains    that   he   was    sentenced     without    an   evidentiary
hearing.    He failed, though, to move for an evidentiary hearing as required
by the District Court's Local Rule 83.10(f) ("The interested party must
file   a separate Motion for Evidentiary Hearing contemporaneous with
submission of the [sentencing] position pleading.")              True, in his "Position
Paper for Sentencing," Malone disputed his liability for the 15.6 kilograms
of   cocaine    seized   in   Utah,    and      added   that   "this     denial/challenge
precipitates an evidentiary hearing."           The government responded to Malone's
position paper by noting that he had not filed the required motion for
evidentiary hearing.      Although thus warned, Malone never filed




                                          -34-
such a motion, nor did he say anything about the need for an evidentiary
hearing at his sentencing.      See United States v. Oehlenschlager, 

, 230-31 (8th Cir. 1996) ("[W]e will not permit the defendant to sandbag
the district court by contesting valuation without submitting a request for
an evidentiary hearing, as required by local rule.")


      In   his   position   paper,    Malone    claims   he   should   not   have   been
sentenced for the 15.6 kilograms of cocaine seized in Utah.            He also argues
that he is not liable for all the drugs involved in Counts 10 and 11 (drug-
dealing using juveniles) or Count 7.        Malone is correct that a PSR is "not
a legally sufficient basis for making findings on contested issues of
material fact," because the government must prove, by a preponderance of
the evidence, all facts relied on by the sentencing court.              United States
v. Hammer, 

, 272 (8th Cir. 1993), cert. denied, 

(1994).     When a defendant disputes material facts in his PSR, the
sentencing court must either refuse to take those facts into account or
hold an evidentiary hearing.         

.         This rule
reflects the courts' concern that disputed statements in a PSR might lack
the   indicia    of   reliability     and      trustworthiness    required     by   the
preponderance-of-the-evidence standard.           See 

.


      This concern does not apply here.              At Malone's sentencing, the
District Court made it clear that it was relying on evidence and testimony
from the trial, and on the jury's verdict.12         Unlike the PSR, the testimony
presented at trial is evidence.       See United States v. Greene, 

,
386 (8th Cir. 1994) ("If the sentencing court chooses to make a finding
with respect to the disputed facts, it must do so on the basis of evidence,
and not the




      12
      After considering the objections in Malone's position paper,
the Court "adopt[ed] the findings of the jury." Malone Sentencing
Hearing, at p. 8 (June 12, 1995).

                                        -35-
presentence report.").       The jury found Malone guilty, beyond a reasonable
doubt, of the conduct on which Malone's sentence is based, and the Court
heard testimony at trial concerning the drug quantities involved with that
conduct.    Even if we were inclined to overlook Malone's failure to comply
with the local rule, an evidentiary hearing was not required in this case.
See United States v. Simpkins, 

, 445 (8th Cir.) (district court
permitted to rely on evidence received at trial when making findings, for
sentencing purposes, regarding amount of cocaine involved and defendant's
role in the offense), cert. denied, 

(1992).


       3.      "Role in the Offense" Enhancement


       In accordance with U.S.S.G. § 3D1.2-.3, the District Court grouped
the charges against Malone and Saunders into three groups of "closely-
related counts," and calculated the adjusted offense levels appropriate for
each group.     Group 1 included the murder-for-hire counts; Group 2 included
the drug-trafficking counts; and Group 3 consisted of the cellular-phone
fraud counts.     Malone and Saunders object to their four-level "leadership
role" enhancements for Groups 1 and 2.             U.S.S.G. § 3B1.1(a) provides for
such an increase "[i]f the defendant was an organizer or leader of a
criminal activity that involved five or more participants . . .."                       Our
Court has "broadly defined" the terms "organizer" and "leader."                    United
States v. Ortiz-Martinez, 

, 677 (8th Cir.), cert. denied, 

(1993).


       Regarding Malone's role in the drug-trafficking offense group, the
evidence showed that he "directed or procured the aid of underlings," and
that he was responsible for organizing others for the purpose of carrying
out crimes.      See United States v. Rowley, 

, 1364 & n.7 (8th
Cir.   1992)    (citations    omitted).      For    instance,    the     jury   found   (by
convicting     Malone   on   Counts   11    and    12)   that   Malone    organized     and
coordinated several juveniles' drug




                                           -36-
dealing.


     Saunders complains that the District Court gave him a four-level role
enhancement    for   the   drug-dealing     offenses   but   "offered    neither   at
sentencing nor in the written Statement any additional findings of fact to
support this conclusion."       The District Court found that Saunders was
convicted for his role in a drug conspiracy involving at least five others,
and that he played an organizing and leadership role.13                 For example,
Saunders sent Chanise Lynn to Los Angeles to procure procaine for the
manufacture of crack cocaine.          While we do not pretend that the line
between being an "organizer or leader," on the one hand, and a "manager or
supervisor," on the other, is always clear, see 

; United States v. Mustread, 

, 1104 (7th Cir. 1994)
("Reviewing [a role enhancement] is often a murky inquiry."), we think the
§ 3B1.1(a) enhancements for Offense Group 2 were appropriate.


     Saunders and Malone also received four-level role-in-the-offense
enhancements   for   Offense   Group    1   (murder-for-hire).     At     Saunders's
sentencing hearing, the District Court commented, "[i]t appears that
[Saunders] was an organizer or leader of this criminal activity which
involved five or more participants, . . . [including] Malone, Delpit,
Prado, and Lynn."    The Court also found that the enhancement was proper in
Malone's case, "based upon the evidence that [was] submitted in this matter
. . .."    However, because the District Court counted Prado and Lynn as
"participants" for purposes of Offense Group 1, we think it erred in
imposing four-level enhancements for that offense group.


     It is true that a person need not have been convicted to count




     13
      At Saunders's sentencing, the Court noted that "[t]he trial
testimony in this matter clearly shows the leadership role of the
defendant as it applied to these proceedings." Saunders Sentencing
Hearing, at p. 17 (June 12, 1995).

                                       -37-
as a "participant" under § 3B1.1; a "participant" is "a person who is
criminally responsible for the commission of the offense . . .."                    

1; see United States v. Freeman, 

, 1042 (8th Cir. 1994)
(persons      who    were   not   indicted   or     tried,   but   who   were   nonetheless
criminally responsible for defendant's crime, were "participants" under
§   3B1.1).         As we discussed above, though, Prado and Lynn were not
criminally responsible for Saunders's and Malone's § 1958(a) violations;
their federal crimes were complete before Prado and Lynn were recruited to
assist Delpit.        See United States v. Lewis, 

, 989-90 (6th Cir.
1995) (because persons lacked knowledge and intent required by underlying
offense, they could not be "participants" under § 3B1.1); United States v.
Melendez, 

, 800 (2d Cir. 1994) (persons who received proceeds
from theft not "participants" under § 3B1.1).


      In Malone's case, though, even if he had received no enhancement at
all for his role in the Group 1 offenses, he would still be facing a
mandatory life sentence.14            It is not necessary, therefore, to remand
Malone's case for resentencing.              Saunders's case is different.          Had he
received no role enhancement for the murder-related group of offenses, he
would have been eligible for a 30-year sentence.15                   This is not to say
that, at resentencing,



      14
      Malone's Group 1 adjusted offense level was 36; his Group 2
adjusted offense level was 43, and his Group 3 level was 8. The
District Court correctly selected the greater of these three levels
(43), and increased it by one level under § 3D1.4 to arrive at a
total offense level of 44. Had Malone received no enhancement for
his role in the Group 1 offenses, his Group 1 adjusted offense
level would have been 32, and his total offense level would have
been 43, not 44. See § 3D1.4(b). An offense level of 43 calls for
a mandatory life sentence.
      15
      Saunders's adjusted offense level for Group 1 (with the four-
level role enhancement) was 36; his adjusted offense level for
Group 2 was 42; and for Group 3, 10. The highest adjusted offense
level was 42, and the District Court increased it by one under
§ 3D1.4 for a total offense level of 43. Had Saunders not received
any role enhancement for Group 1, his total offense level would
have been 42, § 3D1.4(c), which would have permitted the District
Court to impose a 30-year sentence.

                                             -38-
Saunders won't again receive a four-level enhancement.     Section 3B1.1(a)
permits    a four-level enhancement when a defendant is the leader or
organizer of a criminal activity that is "otherwise extensive," and it may
be that such an enhancement is appropriate in Saunders's case.     That is a
question for the District Court to decide.


     4.      Saunders's Relevant Conduct


     The District Court held Saunders responsible for 532.3 grams of crack
involved in Counts 10 and 11 (the Counts involving Malone's use of
juveniles in drug-dealing).   The Court found that these drugs were part of
the Saunders/Malone operation -- part of the overall conspiracy -- and were
therefore attributable to Saunders.    Saunders contends that the evidence
does not support this finding.   He admits, though, that he may be sentenced
for drug quantities which are part of the conspiracy, and are reasonably
foreseeable.   See U.S.S.G. § 1B1.3(a)(1)(B) (A defendant may be sentenced
for "all reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity, that occurred during the
commission of the offense of conviction . . ..").   It is not necessary that
Saunders have participated in distributing the drugs himself, or even that
he actually knew about the drugs, only that the drug quantities were
reasonably foreseeable to him.   See 

.   We think the
District Court correctly found that the 532.3 grams of crack were part of
the operation's "overall activity" and were "part of the conspiracy count
[on] which [Saunders] was convicted."16




     16
          Saunders Sentencing Hearing, at p. 18 (June 12, 1995).

                                    -39-
                                   III.


     We affirm the convictions and sentences of Jai Jones, Larry Thomas,
Calvin Delpit, and Dennell Malone; reverse Jermaine Saunders's four-level
role-in-the-offense enhancement on the murder-for-hire charge; affirm in
part and reverse in part Chanise Lynn's convictions; and reverse Zackarrie
Prado's interstate murder-for-hire conviction.   We remand this case to the
District Court for further proceedings consistent with this opinion.
Saunders and Lynn should be re-sentenced, and the indictment against Prado
should be dismissed.


     A true copy.


           Attest:


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




                                   -40-