                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 00-3859
      ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
John Edward Mull, also known as       *
John Edward Maul, also known as       *
Eddie Mull, also known as John        *
Eddie Mull,                           *
                                      *
            Appellant.                *

      ___________
                                          Appeals from the United States
      No. 01-1401                         District Court for the
      ___________                         District of Nebraska.

United States of America,             *   [UNPUBLISHED]
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Louis Elmore McAlister, also          *
known as Stoney McAlister,            *
                                      *
            Appellant.                *
                                    ___________

                              Submitted: October 16, 2001

                                   Filed: March 5, 2002
                                    ___________

Before BYE, BRIGHT and RICHARD S. ARNOLD, Circuit Judges.
                            ___________

PER CURIAM.

       The government charged John Mull, Louis McAlister and five other individuals
with conspiracy to distribute cocaine base in the Lincoln, Nebraska area. Several of
Mull's co-defendants, including McAlister, pleaded guilty and testified against Mull.
Several other individuals testified against Mull pursuant to plea agreements in related
cases. Mull was convicted after an eight-day jury trial and sentenced to 240 months
in prison. On appeal, Mull raises several challenges to both his conviction and
sentence.

        Louis McAlister pleaded guilty and was sentenced to 262 months. After Mull's
trial, the government rewarded McAlister by filing a motion for a sentence reduction
under Fed. R. Crim. P. 35(b). At the Rule 35(b) hearing, McAlister wanted to
introduce evidence about his troubled childhood, his background, and his post-arrest
rehabilitation efforts. The district court1 refused to consider those matters, and
reduced McAlister's sentence to 120 months based on his assistance alone. On
appeal, McAlister contends the district court should have considered his proffer of
evidence and departed even more.




      1
      The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.

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      We affirm Mull's judgment of conviction and sentence, and McAlister's
sentence.

                                          I

       Mull filed a motion in limine requesting permission to ask the many
cooperating witnesses whether the government required them to take polygraph
examinations as allowed by their plea agreements. We review the district court's
denial of the motion for an abuse of discretion. United States v. Whitehead, 176 F.3d
1030, 1036 (8th Cir. 1999). Because the district court could have excluded the results
of the witnesses' polygraph examinations, see United States v. Waters, 194 F.3d 926,
930 (8th Cir. 1999), it follows the district court could forbid Mull from asking the
witnesses whether they took polygraph examinations in the first place, and properly
excluded this collateral matter. The mere fact the government could have submitted
witnesses to polygraph examinations, but chose not to, neither proves nor disproves
the witnesses' veracity.

        Mull filed a second motion in limine to exclude a bucket of ammunition found
at his residence. The bucket contained shotgun shells and rounds for .9 mm and .38
caliber handguns. Mull contends admission of the entire bucket was prejudicial
because the only weapon found at his residence was a .38 caliber revolver, and only
one .38 caliber bullet was found in the bucket. We disagree. "Weapons are key tools
in the drug trade and can be evidence of a drug conspiracy." United States v.
Dierling, 131 F.3d 722, 732 (8th Cir. 1997). Weapons are admissible at trial to prove
a defendant's intent to distribute. United States v. Schubel, 912 F.2d 952, 956 (8th
Cir. 1990). This rule extends to ammunition as well. United States v. Meirovitz, 918
F.2d 1376, 1379-80 (8th Cir. 1990). Thus, if the jury inferred from the bucket that
other guns were involved in the conspiracy, such an inference would have been fair
and proper. Mull cannot show substantial prejudice even if we assumed the
introduction of the additional ammunition was improper. Since the government could

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still use the .38 caliber revolver and its ammunition to prove the conspiracy and
Mull's intent to distribute, introduction of the additional ammunition was at worst
cumulative. See United States v. Hall, 565 F.2d 1052, 1055 (8th Cir. 1977).

       Mull argues the district court should have allowed him to introduce expert
testimony about the effects of cocaine use upon the cognitive thinking and perception
of the cooperating witnesses. Reviewing the district court's exclusion of this
evidence for an abuse of discretion, United States v. Kirkie, 261 F.3d 761, 767 (8th
Cir. 2001), we find no abuse. See United States v. Foote, 898 F.2d 659, 665 (8th Cir.
1990) (holding the "effects of cocaine addiction on an individual's mental prowess
were within the jury's common understanding"). Mull argues Foote is distinguishable
because it involved a defendant's intent, not a witness's ability to perceive and
remember events while under the influence of cocaine. We disagree. The effects of
cocaine use upon a witness's cognitive abilities are equally within the jury's common
understanding.

        Mull next claims the district court committed instructional error by identifying
a rebuttal witness as an expert because the officer was not disclosed as an expert prior
to trial pursuant to Fed. R. Crim. P. 16. We reject Mull's claim. The officer's rebuttal
testimony was clearly expert in nature, cf. United States v. Ortega, 150 F.3d 937, 943
(8th Cir. 1998) (recognizing that officers' testimony showing specialized knowledge
about drug-related activity is in the nature of expert testimony), and Mull waived any
Rule 16 claim he may have had by failing to object when the officer testified as an
expert at trial.

      Mull also contends the district court abused its discretion by refusing his
requested instruction that cocaine use is not evidence of the crime charged. But Mull
was "not entitled to a particularly worded instruction where the instructions given
adequately and correctly cover[ed] the substance of the requested instruction." United



                                          -4-
States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987) (quoted in United States v.
Ervasti, 201 F.3d 1029, 1035 (8th Cir. 2000)).

       Mull argues the government violated the Jencks Act, 18 U.S.C. § 3500, by
failing to disclose the transcripts of three witnesses' testimony from previous criminal
proceedings. The district court found the transcripts were public records to which the
Jencks Act did not apply. We agree. The Jencks Act protects information in the
government's files from being subject to discovery until after a witness has testified.
See, e.g., United States v. Isgro, 974 F.2d 1091, 1095 (9th Cir. 1992). Thus,
documents which are matters of public record are not subject to the Jencks Act
because they are discoverable even before a witness testifies at a defendant's trial.
United States v. Albanese, 195 F.3d 389, 393 (8th Cir. 1999); United States v. Jones,
160 F.3d 473, 479 n.5 (8th Cir. 1998).

       Because the government did not charge drug quantity in the indictment or
request the jury to make a drug quantity determination, the district court limited
Mull's sentence to 240 months, the maximum sentence authorized by 21 U.S.C. §
841(b)(1)(C) for a cocaine base crime charged without reference to quantity. See
United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.), cert. denied, 531 U.S.
1026 (2000). Mull nevertheless contends his conviction violates the Due Process
Clause of the Fifth Amendment and his right to jury trial under the Sixth Amendment,
and invites us to overrule Aguayo-Delgado to the extent it permits a sentence of
twenty years or less when the government fails to plead or prove drug quantity. We
must decline Mull's invitation. See United States v. Peltier, 276 F.3d 1003, 1006 (8th
Cir. 2002) ("[O]ne panel of this court cannot overrule the decision of another").

       Mull also argues Apprendi v. New Jersey, 530 U.S. 466 (2000), required the
district court to adopt a reasonable doubt standard when considering drug quantity as
a sentencing factor. That claim has no merit. Subsequent to Apprendi we recognized
that "sentence-enhancing facts still may be found by the judge under a

                                          -5-
preponderance-of-the-evidence standard as long as those facts do not result in a
sentence that exceeds the original statutory maximum." United States v. Franklin,
250 F.3d 653, 664 (8th Cir. 2001) (quoting United States v. Robinson, 241 F.3d 115,
121 (1st Cir. 2001)). We also reject Mull's claim that the district court's drug quantity
determinations were clearly erroneous.

      Finally, Mull contends the district court clearly erred in assessing a two-level
enhancement under U.S.S.G. § 2D1.1(b)(1) because there was conflicting evidence
regarding his possession of a firearm — four witnesses saw Mull with a gun at
various times, but four other witnesses never saw a gun at Mull's residence.
Reviewing the district court's adjustment for clear error, United States v. Atkins, 250
F.3d 1203, 1213 (8th Cir. 2001), we find none. No conflict arises merely because
some witnesses saw a gun, while others did not. We therefore affirm Mull's judgment
of conviction and sentence.

                                           II

       McAlister contends the district court could and should have considered
evidence unrelated to his assistance to further reduce his sentence under Rule 35(b),
citing United States v. Anzalone, 148 F.3d 940, 942 (8th Cir.) (holding a district court
may consider factors unrelated to the defendant's assistance "in exercising its
downward departure discretion" under § 5K1.1), vacated and reh'g en banc granted,
148 F.3d 940, reinstated and reh'g en banc denied, 161 F.3d 1125 (1998); see also
United States v. Marks, 244 F.3d 971, 973 n.1 (8th Cir. 2001) (recognizing that cases
addressing § 5K1.1 departures are instructive in addressing Rule 35(b) departures).

       The government contends we lack jurisdiction to address McAlister's claim.
See United States v. Coppedge, 135 F.3d 589, 599 (8th Cir. 1998). Although we
disagree, see United States v. Deitz, 991 F.2d 443, 447 (8th Cir. 1993) ("This court
does, however, have jurisdiction to review a district court's determination that it lacks

                                          -6-
the authority to consider a particular mitigating factor in making a downward
departure"), we nevertheless decline to address McAlister's claim. The record
indicates McAlister was subject to a mandatory minimum sentence of 10 years
imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). Absent an additional motion by
the government pursuant to 18 U.S.C. § 3553(e), see United States v.
Rodriguez-Morales, 958 F.2d 1441, 1447 (8th Cir. 1992), the district court had
already exhausted the extent of its discretion under Rule 35(b) by departing to 120
months. We therefore affirm McAlister's sentence.

      A true copy.

            Attest:

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




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