IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-30914 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CEDRIC DWAYNE ROBERSON,

Defendant-Appellant.

* * * * * * * * * * * * * * * * * * * * * * *

_______________

No. 95-30915 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

TROY ANTHONY COUSIN and DARRYL JACOBS,

Defendants-Appellants.

_________________________

Appeals from the United States District Court for the Western District of Louisiana (94-CR-20044) _________________________ October 29, 1996

Before SMITH and PARKER, Circuit Judges, and JUSTICE1, District Judge.

JERRY E. SMITH, Circuit Judge:**

Cedric Roberson, Troy Cousin, and Darryl Jacobs appeal their

convictions and sentences for possession with intent to distribute

cocaine and conspiracy to accomplish the same. Finding no error,

we affirm.

I.

This case arises out of the guilty pleas and convictions of

Cedric Dwayne Roberson, Troy Anthony Cousin, and Darryl Jacobs.

Three of the ten counts in the indictment are involved. Count one

charged Roberson, Cousin, Jacobs, and five others with conspiracy

to possess with intent to distribute 23 kilograms of cocaine and

252 grams of cocaine base, in violation of

(b)(1)(A) and 846. Count seven charged Cousin and Jacobs

with possession with intent to distribute 750 grams of cocaine on

February 4, 1992, in violation of

(a)(1) and

841(b)(1)(B). Count nine charged Roberson with possession with

intent to distribute 1000 grams of cocaine on September 15, 1992,

1 District Judge of the Eastern District of Texas, sitting by designation.

** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2 also a violation of

(a)(1) and 841(b)(1)(B).

Roberson pleaded guilty to count nine; a jury found Cousin and

Jacobs guilty of counts one and seven.

The conspiracy involved a drug distribution network in Texas

and Louisiana. Roberson, Cousin, Jacobs, and others transported

cocaine from Texas to Louisiana and sold it through a group of drug

dealers in the Kenner area (the “Kenner group”). Couriers

typically would drive the cocaine from Houston to New Orleans,

where the Kenner group then would distribute the drugs at the

retail level. Bryan Kyles was the Houston contact for the Texas

portion of the distribution network (the “Texas group”); Cousin,

Roberson, and Jacobs were involved on the Louisiana side. The

parties communicated via cellular phones and pagers.

II.

Cousin and Jacobs’s first argument is that there was insuffi-

cient evidence to support their convictions. The district court

denied their respective motions for judgment of acquittal or new

trial on this ground, and we review those decisions de novo.

United States v. Sanchez,

(5th Cir.), cert.

denied,

(1992). In a criminal case, we will affirm

the jury’s verdict if a reasonable trier of fact could conclude

from the evidence that the elements of the offense were established

beyond a reasonable doubt, viewing the evidence in the light most

favorable to the jury’s verdict and drawing all reasonable

3 inferences from the evidence to support the verdict. The evidence

presented at trial need not exclude every reasonable possibility of

innocence. United States v. Faulkner,

(5th Cir.),

cert. denied,

(1994).

In a prosecution for a drug conspiracy, the government must

prove (1) the existence of an agreement between two or more persons

to violate the narcotics laws; (2) that the defendant knew of the

agreement; and (3) that he voluntarily participated in the

agreement. United States v. Gonzalez,

(5th Cir.

1996). In a prosecution for possession with intent to distribute,

the government must prove that the defendant knowingly possessed a

controlled substance with intent to distribute it. United States

v. Limones,

(5th Cir. 1993), cert. denied,

, and cert. denied,

(1994).

A.

We first address Cousin’s claim that there was insufficient

evidence to support his possession and conspiracy convictions.

With regard to the possession conviction, he argues that there is

no evidence to support a finding that he possessed cocaine on the

specific date charged, February 1, 1992. His contention is quite

simply that the lack of testimony regarding the specific date is

fatal to the government’s case. With respect to his conspiracy

conviction, he argues that there is no evidence to support a

4 finding that he was a “knowing” participant in the conspiracy.

The evidence is sufficient to support Cousin’s conviction for

possession. When the government charges a defendant with a crime

using the “on” or “about” language, it is not required to prove the

precise date of the offense if it establishes the general time

frame in which the crime occurred. United States v. Hernandez,

(5th Cir. 1992); United States v. Tunnell,

(5th Cir. 1982). The testimony of Steven Webb, one of

Kyles’s drug couriers, established that the possession occurred on

or about February 5, 1992.1

There is also sufficient evidence to support Cousin’s

conspiracy conviction. Walter Sharpe testified that he received

cocaine from Cousin on four separate occasions. A number of other

witnesses linked Cousin with known drug dealers in the Kenner area.

Webb, for example, testified that Cousin and Albert Berniard

traveled together to Houston to pick up drugs and that Cousin paid

him $19,000 for a kilogram of cocaine. Finally, Berniard, a Kenner

area drug dealer, had a pager that was billed to Cousin’s address.

There was more than enough evidence for the jury reasonably to

conclude that Cousin was a knowing participant in the conspiracy.

1 Webb testified that at one point he had met Cousin at 1916 Franklin Avenue in New Orleans to sell him a kilogram of cocaine. Both Cousin and a man Webb knew as “Duke” were present when he delivered the drugs. On February 5, 1992, a Louisiana state trooper stopped Webb as he was driving from New Orleans to Houston and found $19,724 in his car. Although Webb could not pinpoint the exact date on which he had delivered the cocaine, he did testify that the traffic stop occurred the day after the drug transaction and that the money in his car had come from Cousin.

5 B.

Jacobs’s sufficiency claim is essentially that the government

failed to prove that he either knew of the conspiracy or volun-

tarily participated in it. At worst, he argues, the evidence

showed that he was at the wrong places at the wrong times.

Jacobs’s argument on his possession conviction is contingent on his

argument about on conspiracy convictionSShe contends that because

he was not a coconspirator, the evidence must show that he

personally possessed cocaine with the intent to distribute it.

The evidence was sufficient to support Jacobs’s conspiracy

conviction. A conspiracy may be proven by circumstantial evidence.

United States v. Leal,

(5th Cir. 1996) (quoting

United States v. Cardenas,

(5th Cir. 1993), cert.

denied,

(1994)). Paul Fisher testified that at

Kyles’s behest, he delivered drugs to a man named “Duke”SSwhom the

government claimed was JacobsSSat Jacobs’s address.2 Webb testified

that “Duke” was present at the drug transaction in early February

of 1992. That testimony supports Jacobs’s conviction, particularly

when it is combined with the evidence of Jacobs’s friendship with

Kyles, the evidence that a number of drug transactions occurred at

Jacobs’s home, and the evidence that there were numerous phone

calls between members of the conspiracy and telephone numbers that

2 Fisher was unable to identify Jacobs in open court. Viewing the evidence in the light most favorable to the verdict, however, that could easily be attributed to the fact that Fisher saw “Duke” only once and for a short period of time.

6 the government linked to Jacobs.3

III.

Cousin claims that the district court erred in denying his

motion for a judgment of acquittal because there was a variance

between the indictment and the proof. Specifically, he asserts

that the Kenner group was distinct from the Texas group. Cousin

argues that the participants in these groups did not overlap and

that the timing of the conspiracies was not a perfect fit. From

this he concludes that the government charged one conspiracy but

actually proved another.

As with Cousin’s sufficiency claim, we review the denial of

the motion for acquittal de novo. Sanchez,

. We

may reverse a conviction when the defendant both proves a variance

between the government's evidence and the allegations in the

indictment and demonstrates that the variance prejudiced his

substantial rights.4 But "[w]e must affirm the jury's finding that

the government proved a single conspiracy unless the evidence and

3 Indeed, it appears that the conspirators had a great deal to talk about on the phone. Between January 15 and January 17, 1992, there were 25 calls between Kyles’s cellular telephone or his pager and a telephone number installed at 1916 Franklin Avenue. The subscriber to that telephone number was Contrella Perkins, Jacobs’s common-law wife. Between February 3 and September 1, 1992, Kyles called Berniard’s beeper 57 times. Between November 27, 1991, and April 28, 1992, there were 199 calls between the telephone at 1916 Franklin and Kyles’s pager or cell phone. Between February 3 and February 7, 1992, there were 24 calls between the telephone at 1916 Franklin and Kyles’s pager or cell phone. Between November 29, 1991, and April 20, 1992, Kyles made nine trips to New Orleans and called the telephone number at 1916 Franklin 25 times. 4 United States v. Gaytan,

(5th Cir.), cert. denied,

(Oct. 7, 1996); United States v. Morris,

(5th Cir.), cert. denied,

, and cert. denied,

(1995); United States v. Puig-Infante,

(5th Cir.), cert. denied,

(1994).

7 all reasonable inferences, examined in the light most favorable to

the government, would preclude reasonable jurors from finding a

single conspiracy beyond a reasonable doubt." United States v.

DeVarona,

(5th Cir. 1989). Among the factors to

be considered in determining whether a single conspiracy was proven

by the government are (1) the existence of a common goal; (2) the

nature of the scheme; and (3) whether the participants overlapped.

Morris,

; Puig-Infante,

.

The evidence is sufficient to support a finding of a single

conspiracy. The jury reasonably could have concluded that the

Texas group, which supplied drugs to Louisiana, and the Kenner

group, which sold the drugs to users in Louisiana, were two facets

of a single organization. The success of the Texas group was tied

to that of the Kenner group, as the retail sale of drugs was

necessary to Kyles’s success as a large-scale wholesale distribu-

tor. See Morris,

. There was also evidence that the

two groups had overlapping memberships: Webb testified that two

members of the Kenner group, Cousin and Berniard, went to Houston

to pick up drugs. This is sufficient to prove a single conspiracy;

complete overlap is not required.

IV.

Cousin argues that he was denied a right to a fair trial by

prosecutorial misconduct during closing arguments. Prior to

closing arguments, the district court excluded the hearsay

8 testimony of Montero Kelly on grounds that the government had

failed to provide sufficient evidence that Kelly was a co-conspira-

tor. Cousin alleges that the following statements during the

government’s rebuttal referred to that excluded evidence:

But, you know, with this testimony Bryan Kyles is in the conspiracy. He also points out Walter Sharpe is not named in the conspiracy, but you can tell by the events that occurred during the course of the trial that Walter Sharpe is a conspirator. I submit to you, ladies and gentlemen, that the nucleus of the conspiracy in which this defendant, this Mr. Cousin was involved, it is these people in these photographs, some of them were dealing in the Kenner area, some of them were small street dealers, such as Walter Sharpe, and Montero Kelly, and that group. Some of them were people like Mr. Cousin and the Polks. Some of them was Mr. Albert Bernard, or Berniard, or whatever he may be, that went in with Cousin to go and get dope. [Emphasis added.]

The district court denied Cousin’s motion for a mistrial on the

basis of these statements.

In general, "[c]ounsel is accorded wide latitude during

closing argument, and this court gives deference to a district

court's determination regarding whether those arguments are

prejudicial and/or inflammatory." United States v. Murphy,

(5th Cir.), cert. denied,

(1993). "Our

task in reviewing a claim of prosecutorial misconduct is to decide

whether the misconduct casts serious doubt upon the correctness of

the jury's verdict." United States v. Kelley,

(5th Cir.) (internal quotation marks and citation omitted) (quoting

United States v. Carter,

(5th Cir. 1992)),

9 cert. denied,

(1992).

Because Cousin objected to these remarks, we inquire whether

they were both inappropriate and harmful, which is equivalent to

review for harmless error. United States v. Simpson,

(5th Cir. 1990), cert. denied,

(1993)

(citing United States v. Iredia,

(5th Cir.), cert.

denied,

(1989)). Specifically, we consider “(1) the

magnitude of the prejudicial effect of the statements; (2) the

efficacy of any cautionary instructions; and (3) the strength of

the evidence of the appellant['s] guilt." Kelley,

(internal quotation marks and citation omitted). At all times,

"[t]he comments complained of must be viewed within the context of

the trial in which they are made." United States v. Willis,

(5th Cir. 1993) (quoting United States v. Dula,

(5th Cir.), cert. denied,

(1993)).

The court did not err in denying a mistrial, because the

government’s closing argument did not refer to the excluded

testimony. As the court pointed out, its prior evidentiary ruling

was simply that Kelley’s hearsay statements were inadmissible

because the government had failed to prove that Kelly was a

coconspirator. The ruling went no further. The basis for the

government’s argument was not the excluded statements, but rather

a set of photographs that showed the alleged coconspirators

10 together.

V.

The defendants’ remaining claims relate to alleged errors in

their sentences. We review factual findings for clear error and

interpretations of the sentencing guidelines de novo. See, e.g.,

Gaytan,

; United States v. McCaskey,

(5th Cir. 1993), cert. denied,

(1994).

A.

Roberson claims that the district court’s determination of

relevant conduct violated both the terms of his plea agreement and

U.S.S.G. § 1B1.8, which provides that self-incriminating informa-

tion given by a defendant in a plea agreement cannot be used to

determine the applicable guidelines range. His argument is

essentially that the findings on the total quantity of cocaine

involved in his crime were based on information he had disclosed to

the prosecution before Cousin and Jacobs’s trial. Roberson further

contends that this information was not reliable.

The court did not err in using this information to determine

Roberson’s guidelines range. Whether it was disclosed to the

government before trial is immaterial, for the information Roberson

refers to was brought out both in testimony and in the government’s

interviews with other defendants. The memorandum ruling on this

issue recognized this and specifically cited the testimony as the

11 basis for its findings. No serious question is raised as to

reliability.

B.

Roberson next contends that the district court incorrectly

calculated the amount of drugs it used to determine his sentence.

Relying on United States v. Phillippi,

(8th Cir.

1990), cert. denied,

(1991), he argues that the

relevant conduct testimony failed to provide specific dates and

amounts of delivery.

Phillippi is not controlling in this circuit, and the instant

case does not require us to decide whether it should be.5 The

memorandum ruling cited the testimony of Roberson’s codefendants in

determining that he was responsible for 12.4 kilograms of cocaine.

In so doing, it specifically rejected his argument that the

testimony had failed to show specific dates and amounts of

delivery.

We find no error in this decision. Even assuming, arguendo,

that the relevant conduct testimony did not fix specific dates to

the transactions, it certainly did establish that they occurred

within the time frame set out in the indictment for the conspiracy.

Under U.S.S.G. § 1B1.3(a)(1)(B), Roberson could be found responsi-

ble for all foreseeable acts in furtherance of the conspiracy, and

5 See United States v. Buckhalter,

(5th Cir.) (holding that “[t]he Fifth Circuit has never adopted the Phillippi standard”), cert. denied,

, and cert. denied,

(1993).

12 under Buckhalter,

, proof that the transactions

occurred during the conspiracy is enough.

C.

Jacobs reiterates Roberson’s second argument in slightly

different form: He claims that Roberson’s drug quantities should

not be attributed to him, because he did not maintain contact with

Roberson after introducing him to Kyles. This argument is easily

disposed of, for it is functionally equivalent to Jacobs’s earlier

contention that there is insufficient evidence to show that he was

a member of the conspiracy. As we noted above, there is sufficient

evidence for the jury to find that Jacobs was a member of the

conspiracy. It follows that because a coconspirator is responsible

for any foreseeable acts in furtherance of the conspiracy, see

U.S.S.G. § 1B1.3(a)(1)(B), the district court’s decision to hold

Jacobs responsible for some of Roberson’s drug transactions was not

error.

D.

Jacobs next argues that the district court erred in finding

foreseeability, i.e., that the amount of drugs in the conspiracy

was foreseeable to him. Once again, however, Jacobs’s contentions

are based on the implicit assertion that he was not part of the

conspiracy. There is sufficient evidence for the jury to find that

Jacobs was involved in the conspiracy, and one properly could infer

that he introduced Kyles to both Roberson and Cousin and that he

13 knew of Kyles’s drug scheme. That in turn permits an inference

that the quantity of drugs involved in the conspiracy was reason-

ably foreseeable. The district court did not err in attributing

Roberson’s drug quantities to Jacobs.

E.

Jacobs also avers that the court erred in denying him a

downward role adjustment under U.S.S.G. § 3B1.2 for his minimal or

minor role in the conspiracy. In support of this, he points to the

government’s brief in response to Cousin’s motion for acquittal,

noting that that document did not identify him as a major player in

the conspiracy.

Jacobs conspicuously fails to note, however, that it was he

who brought the respective buyers and sellers of cocaine together

in the first place. Without Jacobs, the transactions simply could

not have taken place. One who facilitates a drug transaction by

bringing the parties together cannot claim that he is a “minimal”

or “minor” participant merely by virtue of having not bought or

sold the drugs himself. See United States v. Tremelling,

(5th Cir.), cert. denied,

(1995). The

court did not err in finding that Jacobs was not entitled to a

downward departure under § 3B1.2.

F.

Cousin and Roberson contend that the district court should

have applied the rule of lenity in sentencing. That is, they argue

14 that the sentencing disparity in

(b) between

“cocaine” and “cocaine base” or “crack cocaine” is based on an

ambiguous and scientifically meaningless distinction.

This argument is meritless. As the government points out,

this circuit has uniformly rejected challenges to the statutorily

mandated sentence enhancement for “crack cocaine.”6 Even assuming,

arguendo, that the rule of lenity applies in sentencing proceed-

ings, § 841(b) does not contain the sort of grievous ambiguity that

would require us to invoke it. See, e.g., Chapman v. United

States,

(1991) (holding that rule of lenity does

not apply absent a “'grievous ambiguity or uncertainty'” in the

statute) (quoting Huddleston v. United States,

(1974)).

AFFIRMED.

6 See United States v. Cherry,

(5th Cir. 1995) (rejecting equal protection challenge); United States v. Fisher,

(5th Cir.) (rejecting Eighth Amendment challenge), cert. denied,

(1994); United States v. Howard,

(5th Cir.) (rejecting vagueness challenge), cert. denied,

(1993); United States v. Watson,

(5th Cir.) (rejecting equal protection and due process challenges), cert. denied,

(1992); United States v. Galloway,

(5th Cir.) (same); United States v. Thomas,

(5th Cir. 1991) (rejecting vagueness challenge), cert. denied,

, and cert. denied,

, and cert. denied,

(1992).

15