           ___________

           No. 95-2410
           ___________

United States of America,              *
                                       *
           Appellee,                   *
                                       *
     v.                                *
                                       *
Marlin Lynn Reeves,                    *
                                       *
           Appellant.                  *

           ___________
                                             Appeals from the United States
           No. 95-2411                       District Court for the
           ___________                       Eastern District of Arkansas.

United States of America,               *
                                        *
           Appellee,                    *
                                        *
     v.                                 *
                                        *
Danny Ray Reeves,                       *
                                        *
           Appellant.                   *
                                   ___________

                      Submitted:   January 9, 1996

                          Filed:   May 3, 1996
                                   ___________

Before WOLLMAN, CAMPBELL,* and MURPHY, Circuit Judges.
                               ___________


WOLLMAN, Circuit Judge.


     These consolidated appeals follow the convictions of Marlin Lynn
Reeves ("Lynn") and Danny Ray Reeves ("Danny Ray") for their role in a
scheme involving stolen vehicles whereby the stolen nature of the vehicles
was concealed by replacing the true vehicle




     *The HONORABLE LEVIN H. CAMPBELL, United States Circuit
     Judge for the First Circuit, sitting by designation.
identification numbers (VINs) with numbers from salvage vehicles of the
same make, model, and body style as the stolen vehicles.     A jury convicted
Lynn of concealing a stolen vehicle in violation of 18 U.S.C. § 2313(a) and
of conspiring to sell stolen motor vehicles in violation of 18 U.S.C. §
371.   Danny Ray was convicted of the same conspiracy charge, as well as of
forty counts of altering or removing VINs in violation of 18 U.S.C. § 511,
and of twenty-eight counts of selling or receiving stolen vehicles in
violation of 18 U.S.C. § 2313(a).


       Lynn asks us to review the sufficiency of the evidence presented
against him and to correct an alleged error in his sentence.        Danny Ray
                                   1
claims that the district court         erred in three respects:    (1) in not
granting a mistrial when a government witness invoked his Fifth Amendment
privilege against self-incrimination in the presence of the jury; (2) in
not permitting him to participate in juror misconduct proceedings that took
place after his appeal was filed; and (3) in double counting under the
Sentencing Guidelines.


                              I.       Background


       Danny Ray owned an auto body shop in Forrest City, Arkansas, and
Lynn, Danny Ray's brother, was an occasional employee of the body shop.
The case began when Missouri police recovered a stolen vehicle that had
been re-tagged with a VIN from a salvage vehicle.     Investigators traced the
salvage vehicle to Danny Ray's shop.          After obtaining a list of other
salvage vehicles purchased by Danny Ray, investigators discovered that many
of the VINs from these vehicles had been re-tagged onto stolen vehicles and
the cars then sold to new owners.        Seven individuals, including Lynn and
Danny Ray, were indicted in connection with this scheme.       Three of these




       1
     The Honorable William R. Wilson, United States District Judge
for the Eastern District of Arkansas.

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defendants pleaded guilty, testified at trial, and received reduced
sentences.


                              II.   Marlin Lynn Reeves


     A.   Insufficient Evidence


     Lynn    first   argues    that    the   evidence   presented   at    trial   was
insufficient to convict him.        In considering this claim, we must review the
evidence in the light most favorable to the government, reversing only if
we conclude that no reasonable jury could have found Lynn guilty beyond a
reasonable doubt.     United States v. Quintanilla, 25 F.3d 694, 699 (8th
Cir.), cert. denied, 115 S. Ct. 457 (1994).


     Lynn first challenges the sufficiency of the evidence of conspiracy.
To prove the existence of a conspiracy, the government must offer either
direct or circumstantial evidence to show that at least two people entered
an agreement, the object of which was a violation of the law.                 United
States v. Escobar, 50 F.3d 1414, 1419 (8th Cir. 1995).                   Through the
testimony of three admitted co-conspirators, the government established the
existence of an agreement between at least five individuals to engage in
illegal activity.    Moreover, the government presented overwhelming evidence
detailing the intricacies of the conspiracy.             Government investigators
traced the salvage vehicles from various salvage yards to Danny Ray's shop;
they traced the matched stolen vehicles from their original owners to Danny
Ray; and, finally, they traced the re-tagged stolen vehicles to their new
owners.   Once the government established the existence of the conspiracy,
only slight evidence linking Lynn to that conspiracy was required to
support his conviction.       United States v. Jenkins, No. 95-2787, slip op.
at 4 (8th Cir. Mar. 6, 1996) (citing United States v. Smith, 49 F.3d 362,
365 (8th Cir. 1995)).




                                         -3-
     The government offered substantial evidence linking Lynn to the
conspiracy, calling as witnesses three admitted co-conspirators who each
testified that Lynn played an active role in the conspiracy.   Shane Roberts
testified to a conversation in which he discussed with Danny Ray and Lynn
the possibility of stealing vehicles for them.       When asked how he had
learned to steal vehicles, Roberts answered that Lynn explained how to do
it and that co-conspirator Earvin Parchmon demonstrated the process.
Roberts further testified that Lynn was one of four people who had access
to the building located at Danny Ray's shop, where the stolen vehicles were
stored.   In addition, Roberts stated that because he had a cast on his leg,
either Lynn or Danny Ray had always been present to provide any needed
assistance while he stole vehicles.


     Another co-conspirator, David Paul Davis, testified that stolen
vehicles arrived in Danny Ray's shop with a broken side window and a
"busted" steering column.   He further testified that Lynn helped him to fix
the glass on these broken windows.    Bryan Boggan, a third co-conspirator,
corroborated this testimony, stating that he had witnessed Lynn repairing
windows and steering columns and re-tagging stolen vehicles.


     Lynn questions the reliability of these witnesses in light of the
reduced sentences granted them in exchange for their testimony.   As we find
the testimony of these three witnesses to be neither facially incredible
nor insubstantial, we will not delve further into questions of credibility.
See United States v. Drews, 877 F.2d 10, 13 (8th Cir. 1989) ("Accomplice
testimony is sufficient to sustain a conviction when it is not incredible
or insubstantial on its face.").   See also United States v. Lopez, 42 F.3d
463, 466 (8th Cir. 1994) (It is the role of the jury, which is aware of the
possible motivations behind accomplice testimony, to weigh issues of
credibility).




                                     -4-
        Lynn    next    claims       that   the   government         failed   to     establish      the
requisite elements of the count charging that he concealed or stored a
stolen vehicle that had crossed state lines, having knowledge that the
vehicle was stolen.           The government offered a stipulation by the stolen
truck's owner to prove that it had been stolen and transported across the
state    line.      To establish Lynn's role in storing the vehicle, the
government offered testimony that the truck was discovered in a farm field
approximately three-tenths of a mile from Lynn's home.                             Both Lynn's home
and    the     property      where    the    truck      was   found    were      owned    by   Lynn's
grandfather.           The   evidence       connecting        Lynn    to   the     vehicle     is   not
overwhelming; however, given the evidence of Lynn's extensive involvement
in the conspiracy and the conspicuous nature of the new truck found in a
thicket among junked vehicles, the jury could have reasonably inferred that
Lynn    was responsible for concealing the vehicle.                              Finally, the co-
conspirator      testimony       concerning       Lynn's      knowledge       of    the   conspiracy
provides sufficient circumstantial evidence from which the jury could infer
that Lynn knew the vehicle was stolen.                  Allowing the government the benefit
of all reasonable inferences that may be logically drawn from the evidence,
see United States v. DeLuna, 763 F.2d 897, 924 (8th Cir.), cert. denied,
474 U.S. 980 (1985), the government provided sufficient evidence to allow
this claim to go to the jury.               We thus find sufficient evidence to support
Lynn's conviction on both counts.


        B.   Sentencing Guidelines


        Finally, Lynn claims that in calculating his sentence the district
court misapplied the Sentencing Guidelines.                     Pursuant to U.S.S.G. § 1B1.3
(a)(1)(A) and (B), Lynn was held accountable for all acts committed or
facilitated by him and for all reasonably foreseeable acts committed by his
co-conspirators.          See United States v. Montanye, 996 F.2d 190, 192 (8th
Cir. 1993) (en banc).                In calcualating the loss attributable to each
defendant, the district court used the time period during which that
defendant was




                                                  -5-
involved in the conspiracy.       Vehicles stolen during that period were
considered reasonably foreseeable to that defendant.      Lynn was found to
have participated in the conspiracy from June 18, 1991, until May 4, 1993.
Thirty-three vehicles were stolen during this period, having a total value
of $316,000.    U.S.S.G. §§ 2B6.1 and 2F1.1 directed an enhancement of eight
levels for this aggregate loss.


     Lynn argues that the evidence did not support this enhancement.      He
claims that his role in the conspiracy, if any, was minor.    Lynn's mother-
in-law, Esther Sampley, testified at the sentencing hearing that Lynn
suffered a serious accident on April 5, 1991, and was incapacitated and
heavily medicated for some time after that.      She further testified that
because she suspected Lynn of cheating on her daughter (his wife), she
followed him periodically after the accident until November 1993, when his
wife left him.     During that period, she could recall only one time that
Lynn went to Danny Ray's shop.     Lynn argues that such sparse involvement
precludes his being held accountable for thirty-three vehicles.


     We review for clear error the district court's factual findings with
respect to the time span of Lynn's involvement in the conspiracy and the
resulting amount of loss attributable to him.         See United States v.
Phillippi, 911 F.2d 149, 151 (8th Cir. 1990), cert. denied, 498 U.S. 1036
(1991).   The district court noted that even assuming that Lynn was not
involved in the conspiracy during the six months following his accident,
the amount chargeable to him would still exceed $200,000, with the result
that his sentence would remain the same.     Direct trial testimony linking
Lynn to the conspiracy during the entire year of 1992 precluded any further
reduction.     We find no error in this careful evaluation.


     Lynn's final argument that his sentence is disproportionate to his
co-defendants, considering his comparably minor role in the




                                     -6-
offense, is precluded by United States v. Granados, 962 F.2d 767, 774 (8th
Cir. 1992) ("A defendant cannot rely upon his co-defendant's sentence as
a yardstick for his own.").      See also         United States v. Jackson, 959 F.2d
81 (8th Cir.) (affirming defendant's sentence which was twice as long as
that received by conspiracy ringleader who entered plea agreement and
cooperated with government), cert. denied, 506 U.S. 852 (1992).


                              III.   Danny Ray Reeves


      A.    Prosecution witness' invocation of the Fifth Amendment


      Upon being asked whether he had ever bought any vehicles from Danny
Ray, prosecution witness Tommy Hoskins responded, "On advice of my attorney
and   under   the   Fifth   Amendment,     I'll    have   to   refuse   to   answer   any
questions."   The district court denied Danny Ray's immediate motion for a
mistrial.


      We review for abuse of discretion a district court's refusal to grant
a mistrial.   See United States v. Quinn, 543 F.2d 640, 650 (8th Cir. 1976).
We have held that a mistrial may be warranted when a prosecutor calls a
witness to the stand with advance knowledge that the witness will invoke
the Fifth Amendment.        Id. at 650.     In such a case, we must consider the
prosecutor's motive and the likelihood of the jury's drawing unwarranted
inferences against the defendant.         In the present case there is no evidence
that the prosecutor knew that Hoskins would invoke the Fifth Amendment.
The prosecutor's apparent motive in calling Hoskins was to prove that Danny
Ray had sold Hoskins a stolen vehicle with a salvage title.              In any event,
Danny Ray suffered no prejudice regarding his involvement with Hoskins, as
he was acquitted on the one count involving Hoskins.              Moreover, given the
abundance of testimony at trial against Danny Ray, it seems unlikely that
the jury would have in any way been unduly affected by Hoskins' invocation
of the Fifth Amendment.        Thus, we find no error in the district court's
refusal




                                          -7-
to grant a mistrial.


     B.   Juror Misconduct


     Several   days    after   the   trial,   counsel   for   co-defendant   James
Caldwell, who was tried with Lynn and Danny Ray, spoke with a defense
witness who claimed to have witnessed certain juror misconduct.        Later, at
Caldwell's sentencing, his attorney heard of two other incidents of alleged
juror misconduct, whereupon he moved for a new trial on Caldwell's behalf.
The district court denied Danny Ray's request to join in Caldwell's motion,
finding that it lacked jurisdiction to do so because Danny Ray's notice of
appeal had already been filed.


     The district court could properly have exercised jurisdiction over
Danny Ray's request to join in the motion for a new trial.              Although
district courts are prohibited from granting a motion for a new trial while
an appeal is pending, see Fed. R. Crim. P. 33, they are not prohibited from
denying such a motion or from certifying an intention to grant the motion
to this court, which can then entertain a motion to remand the case.
United States v. Cronic, 466 U.S. 648, 666 n.42 (1984).            See also 3 C.
Wright, Federal Practice and Procedure § 557 pp. 338-340 (2d ed. 1982).
Because the district court declined to exercise jurisdiction, however, and
thus has not had the opportunity to review the motion for a new trial, we
will not consider the merits of this claim.       See United States v. Boberg,
565 F.2d 1059, 1062 (8th Cir. 1977).


     C.   Application of Sentencing Guidelines


     Finally, Danny Ray argues that the district court erred in its
application of the Sentencing Guidelines.         In addition to a nine-level
increase based upon the value of the vehicles stolen, Danny Ray's base
level was increased another two levels pursuant to section 2B6.1(b)(2) upon
a finding that he was in the business of




                                       -8-
receiving and selling stolen property.                 An increase of four more levels
resulted from the finding that he was a leader and organizer of this
criminal     activity.       See    U.S.S.G.       §    3B1.1(a).     The     Pre-Sentence
Investigation Report noted that the factors considered in granting the
section 3B1.1 increase included Danny Ray's leadership and organization of
the enterprise.     Danny Ray argues that both the section 2B6.1(b)(2) and the
section 3B1.1(a) increases were premised on the same conduct --                         his
ownership of Reeves Body Shop.         Although we agree that Danny Ray's position
as owner of Reeves Body Shop -- the conduct relevant under section
2B6.1(b)(2) -- also facilitated his leadership role in the conspiracy, it
did not require such a role.              Danny Ray could have run an illegal re-
tagging operation in which stolen vehicles were received and sold without
directing his employees to steal the vehicles that he would later sell.
Thus, section 3B1.1(a) does not double count; rather it merely holds Danny
Ray   accountable      for   conduct      beyond       that   considered    under   section
2B6.1(b)(2).


                                    IV.     Conclusion


      In    No.   95-2410,   we    affirm    Marlin      Lynn   Reeves'    conviction   and
sentence.


      In No. 95-2411, we affirm Danny Ray's conviction and sentence.


      A true copy.


             Attest:


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




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