UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 95-40109 Summary Calendar _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KARL GAYWIN ACLESE,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (1:94-CR-81-2) _________________________________________________________________ (October 17, 1995)

Before JOLLY, JONES and STEWART, Circuit Judges.

PER CURIAM:*

Karl Gaywin Aclese appeals his conviction and sentence

for conspiracy to possess with intent to distribute cocaine base.

This court affirms.

I. BACKGROUND

Aclese was arrested when the Drug Enforcement Agency

"supervised" his purchase of cocaine base from Roger Johnson.

Johnson had previously been stopped and arrested while driving from

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. Houston to Port Arthur, Texas, for possessing 7 1/2 ounces of

cocaine base. Johnson admitted that 5 ounces of the cocaine

belonged to him and stated that Aclese had paid him $1200 to

purchase the remaining 2 1/2 ounces. Johnson agreed to cooperate

with the DEA to complete the delivery of the cocaine to Aclese.

Johnson telephoned Aclese and arranged to meet him in a

mall parking lot in Port Arthur. There, Johnson handed Aclese a

plastic bag containing 2 1/2 ounces of cocaine base. Aclese

accepted it without comment or paying any money. DEA agents

arrested Aclese immediately after the transaction.

The jury found Aclese guilty of conspiracy to possess

with intent to distribute cocaine base in violation of

. The district court sentenced him to 151 months in prison and

five years supervised release.

Aclese timely appeals his conviction and sentence. He

argues that a) the district court erred in excluding his post-

arrest statement; b) the district court erred in denying his motion

to dismiss for outrageous governmental conduct; and c) the district

court erred in calculating his base offense level under the U.S.

Sentencing Guidelines.

II. DISCUSSION

A. Post-Arrest Statement

The district court did not abuse its discretion by not

granting Aclese an exception to the hearsay rule in excluding

Detective Cartwright's testimony that Aclese told him he had met

Johnson in the parking lot to buy car stereo speakers. See U.S. v.

F.2d 451, 457 (5th Cir. 1993); FED. R. EV. 801(c).

Federal Rule of Evidence 803(24) provides that such hearsay may

only be admitted under certain exceptional circumstances:

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, [is not excluded by the hearsay rule even though the declarant is available to testify] if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

FED. R. EV. 803(24); U.S. v. Cain,

(5th Cir.

1979), cert. denied,

(1979) (Rule 803(24) exceptions

rarely granted).

Aclese does not satisfy Rule 803(24)'s requirements.

First, he offers no proof that his post-arrest statement is

truthworthy. That his statement was made sometime after his arrest

does not demonstrate its truthfulness. Second, although the

statement may be material to Aclese's defense, it is not more

probative than any other evidence; Aclese received plastic

packages of cocaine base "cookies", which he could not have

confused with the stereo speakers he later claimed to be buying.

Third, admitting the post-arrest statement contravenes the purpose

of the hearsay rules and would not further the interests of

justice. Aclese admits that his purpose in having Detective

Cartwright testify is to avoid being cross-examined himself, and

3 Aclese was still able to present his stereo speaker theory to the

jury.

Also, the government did not "open the door of

admissibility" to Aclese's post-arrest statement by failing to

object to references and testimony regarding Aclese's previous

stereo purchases. The evidence introduced at trial regarding these

purchases was not a partial recitation of Aclese's statement that

he met Johnson to buy speakers. See Barshop v. U.S.,

(5th Cir. 1951), cert. denied,

(1952).

Further, the exclusion of Aclese's post-arrest statement

could not have affected the jury verdict. The jury could not have

reasonably concluded that Aclese mistook a two ounce plastic bag of

cocaine for car stereo speakers.

B. Governmental Misconduct

The district court did not err in denying Aclese's motion

to dismiss because the government's "outrageous conduct" deprived

him of due process. See U.S. v. Evans,

(5th Cir.

1991), cert. denied,

(1991). Aclese cannot assert

this defense because he actively participated in the cocaine

transaction. See id. at 271.

Also, the "totality of the circumstances" does not

indicate that the government engaged in outrageous conduct. See

id. at 270-71. Aclese's contention that the government wrongfully

searched Johnson's car does not support a finding that the

government over-involved itself in obtaining Aclese's conviction.

See id. at 271 (defining outrageous governmental conduct as

4 "governmental over-involvement in the charged crime [and] a passive

role by the defendant"). Aclese's argument regarding Johnson's

plea bargain "deal" is speculative. Aclese does not demonstrate

that Johnson agreed to any arrangement other than the one about

which he testified. Aclese's contentions regarding sentence

manipulation involve governmental conduct after his conviction.

Finally, the government did not engage in a "reverse sting"

operation. The DEA did not supply the cocaine to Johnson and

Aclese; they had previously planned its purchase and delivery.

U.S. v. Robins,

(5th Cir. 1993).

C. Sentencing

The district court did not err in attributing 7 1/2

ounces of cocaine to Aclese in calculating his sentencing base

offense level. See U.S. v. Maseratti,

(5th Cir.

1993), cert. denied, Zamora v. U.S., __ U.S. __,

(1994) (district court's factual sentencing findings for drug

offenses reviewed for plain error). The U.S. Sentencing Guidelines

provide that defendants in jointly undertaken criminal activity are

accountable for all reasonably foreseeable quantities of contraband

within the scope of their activity. U.S.S.G. § 1B1.3(a)(1)(B) &

comment 2. In the instant case, Aclese was convicted of conspiring

with Johnson, and Johnson testified that he and Aclese agreed to

pool their money to purchase the 7 1/2 ounces of cocaine.

Also, the district court did not err in concluding that

the government did not engage in sentencing entrapment by

manipulating the quantity and price of the cocaine delivered. The

5 evidence established that Aclese and Johnson had previously

determined its amount and price.

Further, Aclese's argument that the government

manipulated his base offense level by attempting to include

evidence about his other offense and a firearm owned by him, is

without merit. The district court excluded this evidence and

determined Aclese's base offense level by the amount of cocaine

possessed by Johnson at the initial traffic stop.

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

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