                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT


                          _______________________

                                No. 95-20334
                          _______________________


                         UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                     versus

                        JUAN MORENO; RICHARD HUGLY,

                                                      Defendants-Appellants.


_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                          (CR-H-93-172-2)
_________________________________________________________________

                                 June 27, 1996

Before JONES, SMITH and STEWART, Circuit Judges.

PER CURIAM:*

            Appellants Richard Hugly and Juan Moreno were convicted

of conspiring to traffic in and of possessing cocaine.                        The

district court sentenced them, inter alia, to life in prison.                They

now appeal their convictions and sentences.              Finding no error, we

affirm.




     *
             Pursuant to Local Rule 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should not be published and is not precedent except under the limited circumstances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 Local Rule 47.5.4.
          Hugly and Moreno were found guilty of conspiring to

distribute a large quantity of cocaine.      Hugly was the leader of

the conspiracy.   He negotiated the cocaine sales and directed the

pricing, movement, storage, and delivery of the cocaine.         Moreno

was his second-in-command.    He was responsible for assisting Hugly

in negotiating sales, for counting the proceeds, for diluting and

measuring cocaine, and for delivering it.     The conspiracy included

other members who guarded, transported, and delivered cocaine.

          Hugly and Moreno were caught as part of an undercover

“sting” in which one of their associates, Christopher Nagar, agreed

to cooperate with the Drug Enforcement Administration.         The DEA

devised a two-part plan in which Nagar would purchase up to 20

kilograms of cocaine from Hugly’s and Moreno’s operation.        In May

1992, Nagar purchased a one kilogram “sample” of cocaine from them.

Subsequently, Nagar negotiated the purchase of 15-20 more kilograms

of cocaine from Hugly and Moreno, although he was unable to

complete this transaction.

          Hugly   and    Moreno   were   indicted   and   convicted   of

conspiring to possess with the intent to distribute in excess of 5

kilograms of cocaine, in violation of 21 U.S.C. §§ 841 and 846, and

of aiding and abetting each other in possessing with intent to

distribute over 500 grams of cocaine, in violation of 18 U.S.C. §

2 and 21 U.S.C. § 841.    The district court sentenced them each to

life in prison, a $50,000 fine, and 5 years’ supervised release.



                                   2
            Hugly and Moreno timely appealed their convictions and

sentences.

            A.    Hugly

            Hugly argues on appeal that his convictions are barred by

double jeopardy; the evidence was insufficient to support his

convictions; the district court erred in not giving a multiple

conspiracy instruction to the jury; and the district court erred in

sentencing him.

            First, Hugly argues that his convictions are barred by

the double jeopardy clause of the Fifth Amendment because prior to

his trial, the government had secured four summary forfeitures

totaling $48,000 taken from his apartment, bank accounts, and

person.     Like this court, the Supreme Court has rejected this

argument.    United States v. Ursery, ___ U.S. ___, ___ S.Ct. ___,

1996 WL 340815 (1996).    See also United States v. Arreola-Ramos, 60

F.3d 188 (5th Cir. 1995).

            Second, Hugly contends the evidence was insufficient to

support his convictions for conspiracy and possession.     Hugly did

not, though, renew his motion for acquittal at the close of all the

evidence.    Thus, we review his convictions only for a manifest

miscarriage of justice.     United States v. Inocencio, 40 F.3d 716,

724 (5th Cir. 1994).

            No manifest miscarriage of justice occurred in Hugly’s

conviction for conspiracy; the evidence showed he was not merely



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associated with Moreno, but also conspired with him.             See United

States v. Rodriguez-Mireles, 896 F.2d 890, 892 (5th Cir. 1990)

(setting forth elements of conspiracy).        The government introduced

wiretapped telephone calls in which Nagar negotiated the purchase

of one kilogram, and later of 15-20 kilograms, of cocaine with both

Hugly and Moreno.       Nagar also testified that he met both Hugly and

Moreno at Hugly’s apartment in buying the one kilogram of cocaine.

There, Hugly instructed Moreno to take Nagar to the organization’s

“stash house” to complete the transaction.            Further, Frederick

Washington, the guard at the stash house, testified that Hugly was

the leader of the conspiracy and that Moreno was his second-in-

command. Michael Verizzi also testified that he had bought cocaine

from   Hugly   and   Moreno   on   several   occasions.     Thus,   Hugly’s

conviction for conspiracy was not manifestly unjust.

             Similarly, the conviction for cocaine possession does not

rise to the level of manifest injustice.            See United States v.

Polk, 56 F.3d 613, 619-20 (5th Cir. 1995) (setting forth elements

of possession).         That conviction follows from his conspiracy

conviction.     Given that the jury reasonably convicted Hugly of

conspiring to distribute cocaine, it is not unjust for him to be

convicted of constructively possessing the cocaine distributed by

the conspiracy.      See United States v. Quiroz-Hernandez, 48 F.3d

858, 865 (5th Cir. 1995).

             Third, Hugly argues that the district court erred in not

giving   a   multiple    conspiracy   instruction   to    the   jury;   Hugly

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contends that if he did participate in a conspiracy, it was a

different one from that charged in the indictment.         Hugly, though,

did not request such an instruction at trial. Therefore, we review

his argument for plain error.         United States v. Alford, 999 F.2d

818, 824 (5th Cir. 1993); Fed. R. Crim. Pro. 52(b).         That standard

is not met.     See United States v. Richerson, 833 F.2d 1147, 1155-56

(5th Cir. 1987) (failure to give multiple conspiracy instruction

generally does not constitute plain error).         Initially, Hugly has

not shown there is an evidentiary basis to support a multiple

conspiracy charge.        He has not identified the evidence he claims

shows that he and Moreno were involved in a different conspiracy

than the one charged.       Also, we reject Hugly’s argument because it

is merely a reiteration of his sufficiency-of-the-evidence claim.

As discussed above, it is not manifestly unjust to infer that Hugly

had engaged in one common criminal enterprise with Moreno to

distribute cocaine.

           Fourth, Hugly argues that the district court clearly

erred in finding he was responsible for leading a conspiracy that

handled over 200 kilograms of cocaine, and thus erred in sentencing

him to a base offense level of 38.             We disagree.    At trial,

Washington testified that he had transported cocaine many times for

the conspiracy and, on one occasion, had transported 100-200

kilograms of cocaine. Also, Nagar testified that he had negotiated

the purchase of 15-20 kilograms of cocaine from the conspiracy. In

addition   to     these    amounts,   the   government’s   pre-sentencing

                                      5
investigation documented that the conspiracy distributed 226 more

kilograms of cocaine. Therefore, the district court’s finding that

the conspiracy had distributed over 200 kilograms of cocaine was

not clearly erroneous.

          Hugly’s    arguments   to       the   contrary   are   unpersuasive.

Washington’s    uncertainty   about       the   precise    amount   of   cocaine

transported does not make the district court’s finding clearly

erroneous.     The district court found that Washington’s testimony

was credible, that his uncertainty was understandable given the

scope of his activities for the conspiracy, and that the other

evidence corroborated his testimony.              Also, we reject Hugly’s

argument that the district court applied an incorrect evidentiary

standard in finding the conspiracy distributed over 200 kilograms.

While the court did use the phrase “reasonable probability” in one

sentence, the court subsequently found that “the evidence was

beyond a reasonable doubt that this enterprise engaged in multiple

hundred kilos of cocaine during the course of its life” (emphasis

added).

          Fifth, Hugly argues that the district court clearly erred

in finding he led an organization of five or more members, and thus

erred in increasing his sentence by four base levels under U.S.S.G.

§ 3B1.1(a).     Hugly contends he led a conspiracy of only three

persons -- himself, Moreno, and Washington -- and that his other

associates were merely independent contractors.               Shielded by the

clear error standard, the court’s finding to the contrary is

                                      6
correct. The evidence could readily be interpreted as proving that

others such as Verizzi, Steve Simon, and Paul Nell were wholesalers

for Hugly, and that Walton was his associate.

          Sixth, Hugly argues the district court clearly erred in

finding that the thirteen firearms found at the stash house were

connected to the conspiracy, and thus erred in increasing his

sentence by two levels under U.S.S.G. § 2D1.1(b)(1).         We disagree.

That section’s commentary states that the court should enhance a

sentence for weapons possession “unless it is clearly improbable

that the weapon was connected to the offense.”          U.S.S.G. § 2D1.1,

Comment n.3.    Hugly   does   not    dispute    that   thirteen    weapons,

including an UZI and three automatic rifles, were found at the

stash house.   It is not clearly improbable they were there to

protect the cocaine.    The district court’s sentencing enhancement

was thus appropriate.

          Seventh, Hugly argues that the district court abused its

discretion in not conducting an evidentiary hearing before finding

that he had obstructed justice and increasing his sentence by two

levels under U.S.S.G. § 3C1.1.       Under the guidelines, the conduct

of a hearing is discretionary.           United States v. Pologruto, 914

F.2d 67, 68-69 (5th Cir. 1990); U.S.S.G. § 6A1.3                   At trial,

Washington testified that Hugly offered him $30,000 to change his

testimony, and Nagar testified that Hugly attempted to intimidate

him into changing his testimony.          At the sentencing hearing, the

district court allowed Hugly to file a sworn affidavit denying that

                                     7
he had committed those actions.            Accordingly, the district court

did give Hugly the opportunity to present all relevant information

regarding his sentence.      The district court thus did not abuse its

discretion in determining that a hearing was not necessary.

          B.     Moreno

          Moreno first argues that the district court plainly erred

in failing to order a mistrial because some jurors inadvertently

saw him and Hugly in the custody of the U.S. marshals wearing

handcuffs. The district court determined, however, that Moreno had

suffered no prejudice from the incident.           The court also told the

jury that it could not infer “any suggestion of guilt” from seeing

the defendants-appellants in custody.           Thus, the incident did not

rise to the level of plain error.           See Wright v. State of Texas,

533 F.2d 185, 188 (5th Cir. 1976).

          Moreno contends incorrectly that the court’s instruction

was untimely.    Moreno’s trial lasted only two days, and the jury

received the instruction the morning after the incident.              This

minimal delay could not have prejudiced Moreno.              Additionally,

Moreno’s arguments that the situation was incurable and that the

jury disregarded the court’s instruction are contrary to this

circuit’s decisions.      The Fifth Circuit has held that a juror’s

inadvertent    observation    of   a   defendant    being   transported   in

shackles is not inherently prejudicial, United States v. Escobar,




                                       8
674 F.2d 469, 479-80 (5th Cir. 1982), or incurable, Wright, 533

F.2d at 187-88.

            Second, Moreno contends that the district court erred in

finding,    for    sentencing     purposes,     that   he    was    involved    in

distributing      over   200   kilograms   of   cocaine.      See    U.S.S.G.    §

1B1.3(a).      Moreno     asserts   that   he    did   not    know    Hugly    was

distributing over 200 kilograms of cocaine, that he could not have

reasonably foreseen the conspiracy would be distributing such a

large amount, and that he should only be sentenced based on the 5

kilograms of cocaine he actually delivered.                 We disagree.       The

evidence at trial showed that Moreno was Hugly’s second-in-command

and was responsible for assisting him in negotiating sales, for

counting money, for diluting and measuring cocaine, and for making

deliveries.       Moreno also was knowledgeable about the cocaine

shipments received by Hugly and their quantities, and was often

present when Hugly negotiated sales at his apartment.                      Given

Moreno’s relationship with Hugly, the district court did not err in

finding that Moreno knew or could have reasonably foreseen that the

conspiracy was distributing over 200 kilograms of cocaine.

            Moreno additionally lists as a third appellate issue his

belief that the court improperly increased his base sentencing

level for his role in the offense.          Because he did not brief this

issue, it was waived.




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          For the foregoing reasons, the convictions and sentences

of Hugly and Moreno are AFFIRMED.




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