216 F.3d 18 (D.C. Cir. 2000)
United States of America, Appelleev.Eddie J. Mathis, AppellantUnited States of America, Appelleev.Maurice T. Lee, AppellantUnited States of America, Appelleev.Walter Mathis, Appellant
No. 99-3012, No. 99-3013, No. 99-3014
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 14, 2000Decided June 30, 2000

[Copyrighted Material Omitted]
Appeals from the United States District Courtfor the District of Columbia(No. 97cr00334-01)(No. 97cr00334-02)(No. 97cr00334-04)
David Schertler argued the cause for appellant Eddie J.  Mathis.  Barry Coburn, appointed by the court, was on brief.
Adam H. Kurland, appointed by the court, argued the  cause for appellant Maurice T. Lee.
Mary M. Petras, appointed by the court, argued the cause  for appellant Walter Mathis.
Barbara J. Valliere, Assistant United States Attorney,  argued the cause for the appellee.  Wilma A. Lewis, United  States Attorney, and John R. Fisher, William M. Blier and  Valinda Jones, Assistant United States Attorneys were on  brief.
Before:  Ginsburg, Henderson and Rogers, Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge:


1
Appellants  Eddie Mathis, Walter Mathis and Maurice Lee were convicted on a single count of conspiracy to distribute and possess  with the intent to distribute heroin and cocaine in violation of  21 U.S.C.  846.  The appellants challenge their convictions, claiming that the government's evidence at trial proved multiple conspiracies and that the variance between the single  conspiracy charge on which they were indicted and the evidence against them substantially prejudiced them.  Additionally, Walter Mathis claims that the district court erroneously  admitted other crimes evidence at trial and committed two  sentencing errors.  Appellants Eddie Mathis and Lee also  challenge the district court's application of the United States  Sentencing Guidelines (Guidelines) in sentencing them.  Finally, Lee claims that the district court erroneously admitted  his handgun and certain legal documents into evidence.  We  conclude that while the government's conspiracy evidence  varied from the conspiracy charged, the variance did not  substantially prejudice the appellants.  We affirm the district  court in all other respects except for its application of section  4A1.1(d) of the Guidelines in sentencing Walter Mathis.  Accordingly, we affirm all three appellants' convictions and  Eddie Mathis's and Lee's sentences but vacate Walter Mathis's sentence and remand to the district court to resentence  him in accordance with this opinion.

I.

2
Viewed most favorably to the government, see United  States v. Thomas, 114 F.3d 228, 244 (D.C. Cir. 1997), the  evidence showed that in about May 1996 Eddie Mathis, with  his nephew Lee's assistance, reestablished a preexisting drug  distribution network.  Eddie Mathis obtained cocaine and  heroin from different suppliers and sold it to Eugene Matthews, who then resold it on the streets of the District of  Columbia (District).  On September 18, 1996 Eddie Mathis's  brother, Walter Mathis, finished his parole term and "between September and October" of 1996 joined the conspiracy  by delivering an ounce of heroin to Matthews. Trial Tr.  4/30/98 at 128.  During this time, agents of the Drug Enforcement Administration (DEA) were investigating another cocaine dealer, Robert Andrews (Eddie Mathis's father-in-law).By wiretapping Andrews's telephones, DEA agents learned  that Andrews and Eddie Mathis shared the same New York  drug supplier, Miguel Franklin Castro.  Andrews had introduced Eddie Mathis to Castro's initial courier, Elias Rodriguez, to whom Eddie Mathis expressed an interest "in dealing  with heroin."  Trial Tr. 5/6/98 (a.m.) at 56.  Andrews and  Eddie Mathis pooled their money to buy enough cocaine and  heroin from Castro (through Rodriguez) to make it "worth it  for [Rodriguez] to come" to the District.  Trial Tr. 5/6/98  (p.m.) at 12.  Castro's new courier, Vladimir Perez, at first  delivered the drugs to Andrews's house and also delivered  cocaine and heroin to Harold Corbett, another drug dealer  operating in the District.  Soon Eddie Mathis himself ordered  heroin from Castro.


3
On March 8, 1997 DEA agents, acting undercover, ordered  250 grams of heroin from Andrews.  After Perez delivered  the heroin, the police arrested both Andrews and Perez.They pleaded guilty and Perez identified Castro, Rodriguez  and Eddie Mathis as coconspirators.  On July 9, 1997 DEA  agents arrested Castro as he was preparing to sell Eddie  Mathis 300 grams of heroin.  Castro pleaded guilty to drug  trafficking charges and cooperated with the DEA by making  several monitored telephone calls to Eddie Mathis to arrange  a drug deal.  Castro arranged a heroin sale to Eddie Mathis.Eddie Mathis dispatched Lee to purchase the heroin and a  DEA agent arrested Lee on August 20, 1997.  DEA agents  were unable to arrest Eddie Mathis before he went into  hiding but they subsequently filed a complaint against him  and obtained a warrant for his arrest.


4
Meanwhile, in July 1997 Eddie Mathis contacted Rodney  Patterson and Terry Kelton, who were then inmates at the  United States Penitentiary in Lewisburg, Pennsylvania, about  arranging a drug transaction.  Patterson and Kelton introduced Eddie Mathis to Peter Coley, a fellow inmate.  Unbeknownst to Eddie Mathis, Coley had agreed to assist DEA  agents in setting up a drug sale to Eddie Mathis.  Through  monitored telephone calls, Coley spoke to Eddie and Walter  Mathis several times.  With the help of DEA agent Samuel  Bates, Coley arranged a drug transaction at the Landover  Mall in Landover, Maryland.  On November 5, 1997 Bates  and an undercover Baltimore City Police detective, carrying a  five kilogram package of sham cocaine, met Walter Mathis and Dee Smith at the Landover Mall.  Walter Mathis then  dispatched Smith, who drove a gold and tan Geo vehicle, to  pick up Eddie Mathis.  Eddie Mathis arrived at the Mall  fifteen minutes later.  Smith then left the Mall in his Geo.Bates showed Eddie Mathis the cocaine, who replied "Okay,"  and DEA agents then arrested both Eddie and Walter Mathis.  Trial Tr. 5/12/98 at 148.  Less than an hour later DEA  agents spotted Smith's gold and tan Geo parked in front of  the Glenarden Apartments adjacent to the Landover Mall.Inside an apartment the officers found and searched Smith,  recovering a semiautomatic handgun magazine.  In the glove  compartment of the Geo the officers recovered Smith's loaded  semiautomatic handgun.  A search of Smith's apartment uncovered copies of court documents related to Lee which Lee  had mailed to a Maryland post office box and letters from  Kelton to Smith regarding Lee's court proceedings.


5
The government secured a six-count indictment against  Eddie Mathis, Walter Mathis, Lee and Rodriguez, charging  each of them with one count of conspiracy to distribute and  possess with the intent to distribute heroin and cocaine in  violation of 21 U.S.C. § 846.  Additionally, Eddie Mathis was  charged individually with two counts of possession of heroin  with intent to distribute and one count of possession of  cocaine with intent to distribute in violation of 21 U.S.C.  § 841(a)(1) & (b)(1)(B)(i);  he and Lee were jointly charged  with one count of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)(i).  Eddie  Mathis was also charged with one count of conspiracy to  launder money in violation of 21 U.S.C. § 841(a)(1) &  (b)(1)(B)(ii).  On May 22, 1998 a jury found Eddie and Walter  Mathis and Lee guilty of conspiracy.1  After the district court  sentenced the appellants, they filed their timely appeals.

II.

6
The indictment charged Eddie and Walter Mathis and Lee  with participating in a single conspiracy to possess and distribute cocaine and heroin from "at least in or about May  1996 to on or about November 5, 1997."  Indictment at 1.The appellants concede that the evidence establishes a conspiracy among themselves, Castro, Rodriguez, Perez and  Matthews (the Mathis-Castro conspiracy) but contend it ended with Lee's arrest on August 20, 1997,2 after which date all  participants except Eddie and Walter Mathis were under  arrest.  They contend that evidence of the transaction culminating in the November 5 reverse sting involving Coley and  the Mathises constituted a separate conspiracy (the MathisColey conspiracy) which materially varied from the conspiracy on which they were indicted.  In addition, Eddie Mathis  contends that evidence of Castro's drug deliveries to Andrews  involved a separate conspiracy (the Andrews-Castro conspiracy) from the Mathis-Castro conspiracy.

A. Variance

7
In order to establish that a variance between the indictment and the evidence requires a reversal of their convictions, the appellants must demonstrate


8
(1) that the evidence at trial established the existence of multiple conspiracies, rather than the one conspiracy alleged in the indictment, and


9
(2) that because of the multiplicity of defendants and conspiracies, the jury was substantially likely to transfer evidence from one conspiracy to a defendant involved in another.


10
United States v. Gaviria, 116 F.3d 1498, 1516 (D.C. Cir. 1997)  (quotation omitted).  To determine whether the evidence  supports a single conspiracy as opposed to multiple conspiracies, the court, viewing the evidence in the light most favorable to the government, see Thomas, 114 F.3d at 244, looks at  "whether the defendants shared a common goal, any interdependence among the participants, and any overlap among the participants in the allegedly separate conspiracies."  Gaviria,  116 F.3d at 1533 (citation omitted).  The participants shared  a common goal to distribute drugs for profit in the District. Further more, Eddie and Walter Mathis's involvement with  participants Castro, Andrews and Coley established coconspirator overlap.  See id. at 1533 (overlap satisfied when main  conspirator works with all participants);  United States v.  Gatling, 96 F.3d 1511, 1520 (D.C. Cir. 1996) (overlap satisfied  when "main figures" are involved in all alleged schemes).


11
The government, however, did not show the participants'  interdependence in a single conspiracy.  It established a  "hub" conspiracy consisting of appellants Eddie and Walter  Mathis and Lee.3  To further their conspiracy the appellants  obtained drugs from different suppliers including Castro,  Andrews and Coley.  Each supplier became a separate  "spoke" of the hub.4  But "[w]ithout a rim to enclose the  spokes, ... the evidence ma[kes] out multiple conspiracies,  not the single one alleged."  United States v. Tarantino, 846  F.2d 1384, 1392 (D.C. Cir. 1988) (citing Kotteakos v. United  States, 328 U.S. 750, 755 (1946)).  At oral argument the  government described the rim enclosing the supplier spokes  as the common goal to sell illegal drugs in the District. According to the government, it needed to show interdependence only among the hub sellers, not among the spoke  suppliers.  See Appellee's Br. 24.  Our caselaw, however,  teaches that competing spoke suppliers in a hub conspiracy  must not only have a connection to the hub sellers5 but must  also have interdependence among each other in order to form a rim and constitute a single conspiracy.  In United States v.  Graham, 83 F.3d 1466 (D.C. Cir. 1995), the government  established the operation of the "Newton Street Crew," a  cocaine trafficking organization consisting of three different  "cliques" or groups of people selling drugs together.  The  three defendants charged with conspiracy were members of  the same clique but the government used evidence of the  entire drug operation, including all three cliques, to establish  the conspiracy.  The court analyzed the connections among  the three drug cliques in concluding that the evidence "was  sufficient for a reasonable juror to conclude that ... the  cliques were dependent on each other."  Graham, 83 F.3d at  1472;  see also United States v. Anderson, 39 F.3d 331, 347  (D.C. Cir. 1994), rev'd in part en banc, 59 F.3d 1323 (D.C.  Cir. 1995) (core hub conspiracy with various unrelated suppliers "likely ... varied from the indictment's conspiracy  count") (citing United States v. Townsend, 924 F.2d 1385,  1395-1402 (7th Cir. 1991) (conspiracy requires interdependency among competing suppliers)).  Although "fairly minimal"  evidence may establish interdependency, Gatling, 96 F.3d at  1522, some connection among competing spoke suppliers in a  hub conspiracy must exist in order to constitute one conspiracy.  With the foregoing in mind, we must determine whether  spoke suppliers Andrews, Castro and Coley were interdependent.


12
The evidence supports Andrews's involvement not solely  with Eddie Mathis but also with Castro.  Andrews introduced  Eddie Mathis to Castro and DEA surveillance of Andrews  uncovered Eddie Mathis's subsequent connection with Castro. Furthermore, according to Castro, Eddie Mathis relied on  Andrews as an initial critical link to order heroin from Castro. Finally, Castro delivered drugs to both Andrews and Eddie  Mathis at Andrews's house.  This evidence is more than  sufficient for a reasonable juror to conclude that Andrews had  the requisite connection to competing supplier Castro and  thus participated in the Mathis-Castro conspiracy.  See Graham, 83 F.3d at 1471 (finding interdependency among cliques  that purchased and distributed drugs together).


13
The evidence does not, however, manifest a connection  between Coley and either Castro or Andrews.  The government does not point us to evidence of such a connection,  apparently assuming that interdependency among suppliers is  not required.  With no connection between Coley and either  Castro or Andrews, however, we conclude that the Mathis  brothers' transaction with Coley constituted a separate conspiracy, the Mathis-Coley conspiracy.  Accordingly, the government's evidence regarding Coley and the November 5  reverse sting varied from the Mathis-Castro conspiracy  charged in the indictment.


14
In order to reverse their convictions, however, the appellants must show that the variance "substantially prejudiced"  them through "spillover prejudice."  Gaviria, 116 F.3d at  1533.  Substantial prejudice occurs when multiple defendants  are charged with a large and complex conspiracy and spillover prejudice confuses the jurors.  See United States v.  Stewart, 104 F.3d 1377, 1382 (D.C. Cir. 1997) (trial of multiple  defendants increases "danger that, due to 'spillover' effects,  appellant might be found guilty based on evidence properly  admitted only against someone else").  The record here does  not suggest such spillover prejudice or jury confusion.  First,  the risk of "spillover prejudice ... is less likely the fewer the  defendants."  Gaviria, 116 F.3d at 1533 (no risk of prejudice  with four charged defendants);  see also Anderson, 39 F.3d at  348 (no risk of prejudice with ten charged defendants).  Here,  as in Gaviria, the government indicted only four defendants.Second, the government introduced tape recordings of conversations among Eddie Mathis, Castro and Andrews and  among Eddie and Walter Mathis and Coley.  The government also used a videotape of Lee selling drugs.  The jury,  therefore, had " 'no need to look beyond each defendant's own  words in order to convict.' "  Gaviria, 116 F.3d at 1533  (quoting Anderson, 39 F.3d at 348).  Third, Eddie and Walter  Mathis played roles in both the Mathis-Castro and the Mathis-Coley conspiracies.  See id.  Finally, the district court  instructed the jury that it could convict only if the evidence  supported one conspiracy instead of two.  See Trial Tr.  5/20/98 at 32.  Neither the Mathis brothers nor Lee objected  to the jury charge, see id., and they therefore bear a "heavy burden of showing substantial prejudice" because the "jury is  presumed to follow a trial court's instructions."  United  States v. Jackson, 627 F.2d 1198, 1213 (D.C. Cir. 1980)  (citations omitted).  In sum, although we find a variance  between the indictment charging a single conspiracy and the  trial evidence indicating more than one conspiracy, we conclude the variance did not substantially prejudice the appellants.6

B. Walter Mathis

15
The indictment charged only one conspiracy (the Mathis Castro conspiracy);  the government's evidence of the Mathis Coley conspiracy therefore constituted "other crimes" evidence under Federal Rule of Evidence 404(b), and, Walter  Mathis claims, was improperly admitted.7  We review the  district court's admission of "other crimes" evidence for abuse  of discretion.  Graham, 83 F.3d at 1472.  Evidence of an  uncharged crime or bad act is admissible if it is relevant,8 probative of a material issue (such as intent) other than the  defendant's character9 and its probative value is not substantially outweighed by its prejudicial effect.10  See Gaviria, 116  F.3d at 1532.  In a conspiracy prosecution, the government is  usually allowed considerable leeway in offering evidence of  other offenses "to inform the jury of the background of the  conspiracy charged, to complete the story of the crimes  charged, and to help explain to the jury how the illegal  relationship between the participants in the crime developed."11  United States v. Williams, 205 F.3d 23, 33-34 (2d  Cir. 2000) (internal quotation marks and quotation omitted).Evidence of the Mathis-Coley conspiracy was relevant to  show Walter Mathis's intent to act in concert with his brother  Eddie Mathis to possess drugs with the intent to distribute  them.  Furthermore, the probative value of the Mathis-Coley  conspiracy is not "substantially outweighed" by its prejudicial  effect.  Evidence tending to demonstrate "intent, plan, preparation, and motive ... is particularly probative where the  government has alleged conspiracy," United States v. Sampol, 636 F.2d 621, 659 & n.23 (D.C. Cir. 1980) (citations  omitted), and as discussed supra, evidence of the Mathis-Coley conspiracy did not substantially prejudice Walter Mathis.  In light of the government's recognized latitude in using  other crimes evidence in a conspiracy prosecution and the  probative value of the Mathis-Coley conspiracy to show intent, we conclude that the district court did not abuse its  discretion in admitting evidence of the Mathis-Coley conspiracy.


16
Walter Mathis also raises two challenges under the Guidelines.  First, he claims that the district court erroneously  failed to apply section 3B1.2(b) which provides a two-level  reduction for a "minor participant," defined as "any participant who is less culpable than most other participants."U.S.S.G.  3B1.2, Application Note 3.  A minor participant's  relevant conduct must involve more than one participant and  " 'culpability for such conduct [must be] relatively minor  compared to that of the other participant(s).' "  United States  v. Edwards, 98 F.3d 1364, 1370 (D.C. Cir. 1996) (quoting  United States v. Caballero, 936 F.2d 1292, 1299 (D.C. Cir.  1991)).  Walter Mathis contends that his role in the MathisCastro conspiracy was similar to Lee's (who did receive the  minor participant reduction) and therefore the district court  erroneously found that his was not a "relatively minor" role  compared to the other participants' roles.  Because "[t]he  application of section 3B1.2 is inherently fact-bound" it is  "largely committed to the discretion of the trial judge."Caballero, 936 F.2d at 1299.  Ultimately, we uphold the  district court's findings of fact unless "clearly erroneous."United States v. Bridges, 175 F.3d 1062, 1065 (D.C. Cir.  1999).


17
The district court decided Lee was a minor participant  because he "was used only as a messenger" or a "gopher" in  small deals.  Sentencing Tr. 1/6/99 at 72.  Lee did not play "a  role in the planning of the criminal enterprise."  Id. at 73.Walter Mathis, on the other hand, participated in a series of  telephone calls in which he, Eddie Mathis and others  "planned, discussed and arranged for the delivery of 5 kilograms of cocaine," which was "the largest single delivery of  drugs in the whole case."  Id. at 47-48.  Although we have  concluded that the November 5 reverse sting was not part of the offense of conviction, the district court may nonetheless  consider it at sentencing as relevant conduct.  See United  States v. Drew, 200 F.3d 871, 879 (D.C. Cir. 2000) (citing  United States v. Nichols, 511 U.S. 738, 747 (1994)).  The  district court correctly considered Walter Mathis's relevant  conduct in the November 5 reverse sting and, accordingly, it  did not clearly err in failing to apply section 3B1.2(b)'s minor  participant reduction to him notwithstanding its treatment of  Lee to the contrary.


18
Finally, Walter Mathis contends that the district court  erroneously applied section 4A1.1(d)'s two-point increase to  his offense level because the government did not prove by a  preponderance of the evidence that he was on parole at the  time of his offense.12  In view of the government's concession,13 we conclude that the district court clearly erred in this  factual determination and we remand for resentencing because of the incorrect addition of a two-level adjustment  under section 4A1.1(d).  See Drew, 200 F.3d at 874.

C. Eddie Mathis

19
Eddie Mathis also challenges the district court's application  of section 2D1.1(b)(1) of the Guidelines providing a two-level  increase "[i]f a dangerous weapon (including a firearm) was  possessed" during a drug offense.  The weapon need not be  used, but merely "present, unless it is clearly improbable that  the weapon was connected with the offense."  U.S.S.G.   2D1.1, Application Note 3;  see United States v. Burke, 888  F.2d 862, 869 (D.C. Cir. 1989) (section 2D1.1(b)(1) does not  require that defendant "used or would have used the firearm").  Within one hour of arresting Eddie and Walter  Mathis during the November 5 reverse sting, DEA agents  arrested Smith carrying ammunition and discovered his loaded handgun in the glove compartment of the Geo he had  driven from the crime scene.  Furthermore, it was foreseeable to Eddie Mathis that his coconspirator Smith would be  carrying a firearm in view of the fact that Eddie and Walter  Mathis were purchasing five kilograms of cocaine for $75,000  from a stranger.  See Childress, 58 F.3d at 725 (coconspirator's possession of handgun reasonably foreseeable when  conspirators "handled a substantial quantity of drugs and  money").  Because the district court's finding that Smith  possessed the firearm at the shopping mall where the reverse  sting took place, see Sentencing Tr. 1/6/99 at 37-38, is supported by a preponderance of the evidence and because  Smith's possession was reasonably foreseeable, we conclude  that the district court did not clearly err in applying section  2D1.1(b)(2)'s two-level increase to Eddie Mathis's sentence  calculation.

D. Lee

20
Lee challenges his conviction, claiming that the district  court improperly admitted evidence at trial.14  We review the  district court's evidentiary rulings for abuse of discretion. See United States v. Williams, 2000 WL 665562, at *3 (D.C.  Cir. 2000).  The improper admission of evidence is harmless  unless the reviewing court determines that the defendant was  substantially prejudiced thereby.  See United States v. Small,  74 F.3d 1276, 1280 (D.C. Cir. 1996).  First, Lee contends that  the district court improperly admitted into evidence the handgun he possessed on July 17, 1996 because it later determined  at sentencing that there was "no evidence this gun was  carried by Lee for the purpose of furthering the ends of the  drug conspiracy."  Sentencing Tr. 1/6/99 at 72.  The district  court's determination at sentencing, however, does not automatically equate to inadmissibility at trial because the two rulings apply different standards.  The court admitted Lee's  handgun at trial under the "relevant evidence" standard of  Federal Rule of Evidence 402.  See supra n.8.  "Relevant  evidence" need only tend to make the existence of a fact "of  consequence" more or less probable.  The standard applicable to the court's ruling at sentencing, however, is preponderance of the evidence, that is, "evidence which as a whole  shows that the fact sought to be proved is more probable than  not....  '[P]reponderance' means something more than  'weight';  it denotes a superiority of weight, or outweighing."  United States v. Montague, 40 F.3d 1251, 1255 & n.2 (D.C.  Cir. 1994) (internal quotation marks and quotation omitted).Lee's possession of the handgun, although not directly furthering the Mathis-Castro conspiracy, may have nonetheless  constituted relevant evidence.  See In re Sealed Case, 105  F.3d 1460, 1463 (D.C. Cir. 1997) (guns are common "tools of  the trade" for drug dealers) (quotation omitted).  In United  States v. Payne, 805 F.2d 1062 (D.C. Cir. 1986), the court held  that the defendant's gun seized at the time and place of a  drug transaction was admissible as drug paraphernalia.  See  Payne, 805 F.2d at 1066 n.5.  Although Lee's gun was not  found at the time drugs were bought or sold, it was found  during the existence of the Mathis-Castro conspiracy.  In  addition, the government did not mention Lee's handgun in  closing, thus mitigating any negative effect.  Furthermore,  the government introduced a videotape of Lee selling drugs  as part of the Mathis-Castro conspiracy.  In view of this  uncontroverted evidence of Lee's involvement in the conspiracy, we conclude that the district court's admission of Lee's  handgun, if error, was nevertheless harmless.  See United  States v. Olano, 507 U.S. 725, 734-35 (1993) (non-prejudicial  harmless error not grounds for reversal).


21
Lee's contention that the district court improperly admitted  into evidence certain legal documents related to his case  similarly lacks merit.  The documents, which included redacted copies of the criminal complaints filed against Lee, see  Government Exhibits 610R, 611R, 612R & 613R, bore Lee's  name, were found in Smith's apartment and showed that Lee  maintained a "continuing connection" with Eddie Mathis even after his (Lee's) arrest.  Trial Tr. 5/13/98 (p.m.) at 14.  Although at sentencing the court found that Lee's participation  "ended with his arrest on August 20, 1997," Sentencing Tr.  1/6/99 at 72, it did not abuse its discretion in admitting these  documents at trial because they were relevant to show Lee's  continued connection with Eddie Mathis.  Even if the court  did err in admitting the redacted documents, the documents  contained no substantially prejudicial information and therefore any error was harmless.


22
Finally, Lee challenges the district court's application of  the Guidelines, claiming that it erroneously failed to apply  section 5C1.2's safety valve provision.15 Lee bears the burden to establish by a preponderance of the evidence that he is  entitled to safety valve relief.  See United States v. White, 1  F.3d 13, 18 (D.C. Cir. 1993) ("defendant properly bears the  burden of proof under those sections of the Guidelines that  define mitigating factors") (internal quotation marks and  quotation omitted).  Only the last of section 5C1.2's five  criteria is pertinent here, requiring that:


23
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.


24
See also 18 U.S.C.  3553(f)(5).  Lee argued below that he  satisfied section 5C1.2(5) notwithstanding he had no useful  information to provide the government.  Lee, however, did  not proffer any information, useful or not.  On appeal, Lee claims that a proffer would have been futile because the  government stated at sentencing that "at this point, post trial,  it certainly wouldn't be a productive debriefing."  Sentencing  Tr. 1/6/99 at 68.  Nevertheless, Lee cannot avoid his affirmative disclosure obligation merely because the government  suggests a debriefing would be unproductive.  See United  States v. Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996) ("[D]efendants seeking to avail themselves of downward departures  under  3553(f) bear the burden of affirmatively acting.").Because Lee failed to proffer information of any kind to the  government, we conclude that the district court did not  clearly err by not applying section 5C1.2.


25
For the foregoing reasons, we affirm the convictions of  Eddie Mathis, Walter Mathis and Maurice Lee.  In addition  we affirm the sentences imposed on Eddie Mathis and Maurice Lee but remand to the district court to resentence  Walter Mathis in accordance with this opinion.


26
So ordered.



Notes:


1
 Eddie Mathis was convicted on two counts and Lee on one count  of possession of heroin with intent to distribute in violation of 21  U.S.C.  841(a)(1) & (b)(1)(B)(i).  Eddie Mathis was also convicted  of money laundering in violation of 18 U.S.C.  1956(a)(1)(B)(i).The jury acquitted him on the two remaining counts against him  and also acquitted Rodriguez of conspiracy.


2
 All dates occurred in 1997 unless otherwise noted.


3
 The "hub" is "the focal, key or central member[s] of a wheel  conspiracy."  United States v. Flood, 965 F.2d 505, 509 (7th Cir. 1992).


4
 The "spokes" are the hub's "associates" who are involved in  individual transactions and "know that they are working for the  hub."  United States v. Payne, 99 F.3d 1273, 1279 n.5 (5th Cir.  1996).


5
 The government does not dispute that interdependence must  exist between the spoke suppliers and the hub conspiracy.  See  Appellee's Br. 24.


6
Eddie Mathis also argues that evidence of Castro's drug sales to  another dealer, Corbett, established a separate conspiracy.  Corbett  obtained drugs initially from Andrews and later from Castro, see  Trial Tr. 5/5/98 (a.m.) at 37, thus showing interdependency among  the Mathis-Castro conspiracy participants.  See Graham, 83 F.3d  at 1472.  There is no evidence, however, linking Corbett (as a spoke  or otherwise) in the Mathis-Castro hub conspiracy including Eddie  and Walter Mathis and Lee.  Assuming without deciding that  Corbett's involvement with Andrews and Castro indicates a separate conspiracy, we conclude that the evidence of that conspiracy  was not substantially prejudicial to Eddie Mathis.  See Anderson,  39 F.3d at 348.


7
 Walter Mathis contends for the first time on appeal that,  because of the variance, the government's indictment joined two  conspiracies and was therefore duplicative.  This argument is  waived, however, because defenses based on " 'defects in the indictment' ... are waived under [Federal Rule of Criminal Procedure]  12(f) if not raised prior to trial."  United States v. Weathers, 186  F.3d 948, 952 (D.C. Cir. 1999) (quoting Fed. R. Crim. P. 12(b)).


8
 "Relevant evidence" is "evidence having any tendency to make  the existence of any fact that is of consequence to the determination  of the action more probable or less probable than it would be  without the evidence."  Fed. R. Evid. 401.


9
 In pertinent part, Federal Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.  It may, however, be admissible for other purposes, such as proof of ... intent, ... plan....


10
 Federal Rule of Evidence 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.


11
 We note that "the principles governing what is commonly  referred to as other crimes evidence are the same whether the  conduct occurs before or after the offense charged."  United States  v. Latney, 108 F.3d 1446, 1449 (D.C. Cir. 1997).


12
 Section 4A1.1(d) provides a two point increase "if the defendant  committed the instant offense while under any criminal justice  sentence, including ... parole."


13
 "[W]e concede that the record does not show by a preponderance that appellant committed the offense while on parole."  Appellee's Br. 48.


14
 In passing, Lee asserts that the prosecutor improperly argued  during closing that the goal of the conspiracy was "selling drugs for  profit in the District of Columbia."  Trial Tr. 5/19/98 at 3.  We need  not address this " 'asserted but unanalyzed' argument."  SEC v.  Banner Fund Int'l, 211 F.3d 602, 613 (D.C. Cir. 2000) (quoting  Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)).


15
 Section 5C1.2 provides that if five criteria set out in 18 U.S.C.   3553(f)(1)-(5) are met, "[i]n the case of an offense under 21 U.S.C.  § 841, ... [or] § 846 ..., the court shall impose a sentence in  accordance with the applicable guidelines without regard to any  statutory minimum sentence."


