                        United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    _____________

                                     No. 96-2325
                                    _____________

United States of America,               *
                                        *
            Plaintiff - Appellee,       *
                                        * Appeal from the United States
     v.                                 * District Court for the District
                                        * of Nebraska.
Herbert Lee Bass, Jr.,                  *
                                        *
            Defendant - Appellant.      *
                                  _____________

                                     No. 96-2879
                                    _____________

United States of America,                *
                                         *
            Plaintiff - Appellee,        *
                                         * Appeal from the United States
      v.                                 * District Court for the District
                                         * of Nebraska.
Todd Wakefield, also known as            *
T-Dub,                                   *
                                         *
            Defendant - Appellant.       *

                                    _____________

                                Submitted: March 12, 1997
                                    Filed: August 11, 1997
                                 _____________
Before McMILLIAN, FLOYD R. GIBSON, and JOHN R. GIBSON, Circuit Judges.
                           _____________

FLOYD R. GIBSON, Circuit Judge.

       Herbert Lee Bass and Todd Wakefield were adjudicated guilty of violating 21
U.S.C. §§ 841(a)(1), 846 (1994), by conspiring to distribute and possess with intent to
distribute at least fifty grams of crack cocaine. In these appeals, Bass challenges
numerous aspects of his conviction and sentence. Wakefield, on the other hand, raises
a single argument that the district court abused its discretion by imposing special
conditions of supervised release which absolutely prohibit him from obtaining or
consuming alcohol, subject him to testing to detect the presence of alcohol in his body,
and require him to submit to warrantless searches for alcohol. We affirm Bass's
conviction and sentence in all respects, but we vacate portions of Wakefield's sentence
and remand for proceedings consistent with this opinion.

I. BACKGROUND

       On June 14, 1995, a federal grand jury returned a one count indictment charging
Bass and Wakefield with conspiring to distribute and possess with intent to distribute
crack cocaine, a violation of 21 U.S.C. §§ 841(a)(1), 846. Both men initially entered
pleas of not guilty, but Wakefield subsequently changed his plea to guilty pursuant to
an agreement he reached with the Government. Bass proceeded to trial, and after four
days of testimony a jury convicted him of the drug distribution crime. The district court
sentenced Bass to 188 months (fifteen years, eight months) imprisonment, while
Wakefield received a period of confinement to span 135 months (eleven years, three
months). Upon release from prison, each will serve an additional five years on
supervised release.

       At the present time, Bass contends that the Government did not introduce
sufficient evidence to sustain his conviction. He also complains about certain

                                          -2-
evidentiary rulings, claiming that the district court abused its discretion when it (1)
permitted the Government to implicate Bass in what he contends were other criminal
schemes, and (2) exposed the jury to inadmissible hearsay by allowing a prosecution
witness to testify about out of court statements made by one of Bass's alleged
coconspirators. In challenging his sentence, Bass asserts that the district court
committed error when it refused his request for a downward departure to help
ameliorate the 100-to-1 ratio between penalties for crack and powder cocaine. Finally,
Wakefield maintains that the district court wrongfully levied special conditions of
supervised release which are crafted to ensure that he totally abstains from alcohol
usage. We address these allegations seriatim.


II. DISCUSSION

      A. Bass

       Bass assails his conviction and sentence on a number of grounds, but we need
not tarry long on any of his contentions. For none of Bass's arguments has more than
a mere modicum of merit.

             1. Sufficiency of the evidence

      Bass propounds that the Government did not present sufficient evidence to
support his conviction. "In reviewing the sufficiency of the evidence to support a guilty
verdict, we look at the evidence in the light most favorable to the verdict and accept as
established all reasonable inferences supporting the verdict." United States v. Black
Cloud, 101 F.3d 1258, 1263 (8th Cir. 1996). From this perspective, we must consider
whether "any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). An
affirmative answer to this inquiry precludes reversal of the conviction.


                                          -3-
       To prevail in a conspiracy trial, the Government must prove "that there was an
agreement to achieve some illegal purpose, that the defendant knew of the agreement,
and that the defendant knowingly became a part of the conspiracy." United States v.
Ivey, 915 F.2d 380, 384 (8th Cir. 1990)(citation omitted). The agreement which lies
at the heart of any conspiracy case need not, of course, be expressly stated. Instead,
the Government must "only establish a tacit understanding between the parties, and this
may be shown wholly through the circumstantial evidence of [the defendant's] actions."
United States v. Fregoso, 60 F.3d 1314, 1325 (8th Cir. 1995). "Once a conspiracy is
established, even slight evidence connecting a defendant to the conspiracy may be
sufficient to prove the defendant's involvement." Ivey, 915 F.2d at 384.

       Having reviewed the record and read the entire trial transcript, we conclude that
the Government introduced ample, if not abundant, evidence of Bass's guilt. Five of
Bass's coconspirators testified against him. Two of these individuals, Santanus
Chambers and Terry Glen Ford, confirmed that they sold to Bass large quantities of
cocaine over an extended period of time. Two street level dealers,1 Antonio Nelson
and Dale Giles, verified that they regularly purchased from Bass crack cocaine for
further distribution. In addition, during trial the Government played a number of
recorded phone conversations between Ford and Bass, and Ford deciphered for the jury
the "code" the men used in an attempt to surreptitiously discuss their drug transactions.
       There can be no question that this and other evidence provided an adequate
foundation to sustain the jury's finding of guilt. Bass's protestations to the contrary
consist predominately of attacks on the credibility of his former compatriots who
testified at trial, each of whom had reached a plea agreement with the Government.
While information such as this is "highly relevant in assessing the credibility of the
witnesses," United States v. Cabrera, No. 96-3972, 1997 WL 367310, at *2 (8th Cir.



      1
      The other conspirator who appeared at trial, Anthony Branch, offered testimony
which at best could be viewed as marginally beneficial to the prosecution.

                                          -4-
July 7, 1997), evaluating the comparative trustworthiness of testimony is an endeavor
for the jury, and not us, to undertake, see United States v. Wright, No. 96-2978, 1997
WL 377833, at *3 (8th Cir. July 10, 1997)("[I]t is the sole province of the jury to weigh
the credibility of a witness." (quotation omitted)). Bass's able trial attorney seized upon
every available opportunity to point out to the jury that individual prosecution witnesses
might have harbored a self-interested motivation to bolster the Government's case.
That the jury rejected defense counsel's overtures, choosing rather to credit the disputed
testimony, is not for us to review.

        Bass also emphasizes that he was gainfully employed during the time of the
conspiracy and that police officers did not confiscate any drugs or large sums of money
from his person or belongings. Nonetheless, though lack of employment and the
presence of drugs or large amounts of cash often serve to strengthen an inference that
a defendant was dealing in contraband, the absence of any one, or all, of these factors
in a given trial does not by any means necessitate an acquittal. Stated simply, the fact
that the case against Bass might have been more ironclad does nothing to diminish the
evidence which the Government did, in fact, introduce. Bass no doubt would have
benefitted had the jury deemed the Government's case irreparably suspect due to a
dearth of circumstantial evidence connecting him to drug transactions, but the jury's
failure to live up to Bass's wishful thinking does not represent a constitutional violation.
See Wright, 1997 WL 377833, at *3 (mentioning that conviction only upon proof
beyond a reasonable doubt is required by the Due Process Clause of the Constitution).

      In the final analysis, Bass's multifaceted criticism of the case against him must
succumb to the fact that the quantum of evidence introduced at trial, though perhaps not
of the highest caliber, was more than sufficient to allow the jury to return a guilty
verdict. We cannot say "that a reasonable fact-finder must have entertained a
reasonable doubt about the government's proof of one of the offense's essential
elements," Ivey, 915 F.2d at 383, and we must therefore affirm his conviction.


                                            -5-
             2. "Other crimes" evidence

       Bass asserts that the district court abused its discretion when it allowed the
Government to elicit testimony from Santanus Chambers concerning certain narcotics
transactions Bass had entered into with him. In a related vein, Bass insists that the
court committed error when it permitted the introduction of a recorded telephone
conversation in which he discussed a drug deal with Ford. According to Bass, the
admission of this evidence ran afoul of Rule 404(b) of the Federal Rules of Evidence,
because through its introduction the prosecution intended to demonstrate that he had
committed other crimes and was thus prone to engage in the criminal offense contained
in the indictment.

       Were Bass's characterization of the matter correct, this ground for reversal
would, if nothing else, give us pause. It is axiomatic that "Rule 404(b) excludes
evidence of other crimes or bad acts when offered to prove character in order to show
action in conformity therewith." United States v. Falls, No. 96-2491, 1997 WL
352314, at *2 (8th Cir. June 27, 1997); see also Fed. R. Evid. 404(b). This type of
evidence is, however, "admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident." Fed. R. Evid. 404(b). Even then, the district court should approve
introduction of a defendant's other crimes or bad acts only if (1) the evidence is relevant
to a material issue, (2) the other crime or bad act is reasonably similar in kind and close
in time to the crime charged, (3) the evidence is sufficient to support a jury finding that
the defendant committed the other crime or bad act, and (4) the probative value of the
evidence outweighs its prejudicial effect. See United States v. Emmanuel, 112 F.3d
977, 981 (8th Cir. 1997).

       As it happens, though, we need not apply the legal doctrines developed under
Rule 404(b). This is because our inspection of the record has revealed that the district
court did not view the evidence as representative of other crimes or bad acts, but

                                           -6-
instead thought it bore directly upon Bass's participation in the very conspiracy
described in the indictment. See Trial Tr. at 186 ("I specifically find that [Chambers's
testimony is] not 404(b) type evidence, that it's evidence bearing directly upon the
conspiracy . . . ."); id. at 195 ("[T]he evidence [of the phone conversation between Ford
and Bass] is admissible [as] . . . proof again of the existence of the conspiracy."). We
agree with this assessment of the evidence, and we thus conclude that it did not involve
another "crime or bad act" which might otherwise have been subject to exclusion under
Rule 404(b). The deals Bass negotiated with Chambers and discussed with Ford were
part and parcel of the conspiracy with which Bass was charged, and the district court
did not commit an abuse of discretion by authorizing introduction of the challenged
evidence.2 See Fed. R. Evid. 401-403; United States v. Gibson, 105 F.3d 1229, 1235
(8th Cir. 1997)("In the context of a conspiracy trial, district courts have particularly
broad discretion in determining the nature of evidence to be admitted." (quotation
omitted)).

             3. Inadmissible hearsay

       Bass also declares that the court exposed the jury to inadmissible hearsay when
it allowed James Slosson, a special agent with the Bureau of Alcohol, Tobacco, and
Firearms, to testify about certain remarks made by Antonio Nelson during an
undercover drug buy. We summarily reject this argument, however, because the
testimony was clearly allowable as descriptive of a statement made by one of Bass's
coconspirators during the course of and in furtherance of the conspiracy. See Fed. R.
Evid. 801(d)(2)(E); United States v. Darden, 70 F.3d 1507, 1529-30 (8th Cir. 1995),

      2
         Even if the district court had abused its discretion, the error would have been
harmless in light of other evidence establishing Bass's guilt. See Fed. R. Crim. P.
52(a); Falls, 1997 WL 352314, at *2 ("An evidentiary error amounts to harmless error
if, after viewing the entire record, we are convinced that no substantial rights of the
defendant were affected and that the error had no, or only very slight, influence on the
verdict.").

                                          -7-
cert. denied, 116 S. Ct. 1449, and cert. denied, 116 S. Ct. 2567 (1996). As a result,
Nelson's out of court statement is "not hearsay" under the Federal Rules of Evidence.
Fed. R. Evid. 801(d)(2)(E).

             4. Sentencing issue

       Bass's final allegation on appeal is that the district court committed error when
it refused to depart downward in order to mitigate the harsh 100-to-1 ratio between
sentences for crack and powder cocaine. Bass recognizes that we have rejected this
and similar arguments time and time again. See, e.g., United States v. Johnson, 108
F.3d 919, 922 (8th Cir. 1997)(mentioning that we have repeatedly upheld the
constitutionality of U.S.S.G. § 2D1.1); United States v. Higgs, 72 F.3d 69, 70 (8th Cir.
1995)(holding that district court did not commit error in refusing to depart downward
based on 100-to-1 ratio). Still, he "respectfully disagrees" with our previous decisions
and suggests that it is our "duty to declare that the punishment for crack versus powder
cocaine is repugnant and unjust." Bass's Br. at 14.

       We are sympathetic toward Bass's entreaties, but it is not for us to reverse a
well-established pattern of this Court's case law. A single panel cannot effectuate a
change in our approach to the 100-to-1 ratio; such action can originate only from the
Court en banc. See Johnson, 108 F.3d at 922. Bound by our prior opinions, we hold
that the district court did not commit error when it denied Bass's motion for a
downward departure.

       B. Wakefield
       Wakefield contests only one component of the sentence the district court
imposed after accepting his guilty plea. Namely, he claims that the district court
abused its discretion when it placed special conditions on his supervised release which
absolutely prohibit him from obtaining or consuming alcohol, subject him to testing to


                                          -8-
detect the presence of alcohol in his body, and require him to submit to warrantless
searches for alcohol. The particular provisions to which Wakefield objects read as
follows:

      1)      Paragraph 8 of the standard conditions of supervision is modified,
      i.e., instead of merely refraining from excessive use of alcohol, the
      defendant shall not purchase or possess, use, distribute, or administer any
      alcohol, just the same as any other narcotic or controlled substance.

                                        *   *     *

      3)     The defendant shall submit to and pay for a drug test within fifteen
      (15) days of release on supervised release and at least two (2) periodic
      drug tests thereafter for use of a controlled substance and shall further
      submit to and pay for such testing as any person involved in supervising
      the defendant's supervised release may request to detect the presence of
      alcohol or controlled substances in the defendant's body fluids and to
      determine whether the defendant has used any of them.

      4)    The defendant shall be subject to search and seizure of the
      defendant's premises, vehicle or person, day or night, with or without a
      warrant, at the request of any person involved in supervising the
      defendant's supervised release to determine the presence of alcoholic
      beverages or controlled substances; any such person may make such a
      request with or without the cooperation of law enforcement officers.

Judgment including Sentence at 3.
       It is fundamental that a district judge has wide discretion in formulating the terms
of supervised release. See United States v. Schoenrock, 868 F.2d 289, 291 (8th Cir.
1989). Nevertheless, this discretion is not unfettered. The United States Sentencing
Commission, duplicating and consolidating language contained in relevant statutes, has
instructed that conditions of supervised release must be "reasonably related to (1) the
nature and circumstances of the offense and the history and characteristics of the


                                            -9-
defendant, and (2) the need . . . to afford adequate deterrence to criminal conduct, to
protect the public from further crimes of the defendant, and to provide the defendant
with needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner." U.S. Sentencing Guidelines Manual §
5D1.3(b) (1995); see also 18 U.S.C. §§ 3553(a)(1), (a)(2)(B)-(D), 3583(d) (1994).
Furthermore, the terms of supervised release cannot inflict a "'greater deprivation of
liberty than is reasonably necessary' to effectuate the goals of Congress and the
Sentencing Commission." United States v. Prendergast, 979 F.2d 1289, 1293 (8th Cir.
1992)(quoting 18 U.S.C. § 3583(d)(2)). "Conditions that restrict a probationer's
freedom must be especially fine tuned." Id. (quotation and alteration omitted).

      In Prendergast, we addressed the propriety of the district court's imposition of
conditions substantially similar to those involved in the case sub judice. See id. at
1292-93. We deemed the terms of supervised release to be inappropriate because they
did "not reasonably relate to the goals of rehabilitation and protection." Id. at 1293.
Essential to this holding was our observation that there was "no evidence indicating that
[the defendant] suffer[ed] from alcoholism or that the use of alcohol in any way
contributed to the commission of the offense for which he was sentenced." Id.
Accordingly, we directed the district court on remand to eliminate the conditions which
completely prohibited the defendant from possessing or consuming alcohol and which
subjected him to warrantless searches for the substance. See id.; cf. United States v.
Stoural, 990 F.2d 372, 372-73 (8th Cir. 1993)(per curiam)(vacating virtually identical
provisions imposed as special conditions of probation).
        We believe that this appeal is controlled by the reasoning we employed in
Prendergast. Similar to the situation in that case, there was no evidence before the
district court suggesting that Wakefield abused alcohol or that the use of alcohol played
a role in the crime to which he pleaded guilty. Cf. Sentencing Recommendation at 2
("[T]here is no indication that Mr. Wakefield has a history of alcohol abuse."). True,
Wakefield admitted that beginning in 1987 he "smoke[d] marijuana approximately


                                          -10-
twice per week until his arrest in [the] instant offense," and he also acknowledged that
he had "imbibed alcohol on weekends since the age of 18." Presentence Investigation
Report at 12. The district court relied on these concessions in levying the restrictions
at issue, explaining:

              [T]he reason I've imposed the restriction with regard to the alcohol
      is that if he's cut off on controlled substances, the easy thing, of course,
      to substitute for it is alcohol. Anybody who is drug dependent can have
      a tendency, if one particular drug is cut off, to use some other drug. And
      so I want the record to reflect that's the reason I've imposed that provision
      or those terms as part of the supervised release.

Sentencing Tr. at 23.
       We certainly appreciate the concerns which animated the district court, but we
do not think the court's explanation is adequate to remove this case from the reach of
Prendergast. Notably, while it is beyond cavil that Wakefield used marijuana on a
somewhat regular basis, there was no evidence before the district court that he was
"drug dependent." It is, to say the least, disturbing to learn that a young person has
taken up the practice of smoking marijuana "approximately twice per week," but we
cannot conclude that this level of consumption is so facially excessive to compel a
finding that the person must have a dependency problem. By the same token, we
believe it was incorrect for the district court to simply assume that Wakefield would as
a matter of course replace alcohol for marijuana.3 Indeed, even if this substitution did
occur, it would not, under the circumstances, be entirely unwelcome. Though we share
what appears to be the district court's desire to completely wean Wakefield and other
defendants from intoxicating substances, we know that, realistically speaking, this


      3
        Of course, it would be a different case altogether if the Government had
presented cogent evidence indicating that Wakefield's marijuana usage did render him
drug dependent or that he would assuredly abuse alcohol if deprived of his drug of
choice.

                                          -11-
optimal result cannot be achieved in every case. It seems to us, however, that societal
goals will be met if fear of retribution and further punishment causes convicts who at
one time used illicit drugs to switch to moderate and responsible alcohol consumption.
In this way, at least in one sense, the system converts criminals to law abiding citizens.



       At sentencing, the district court encountered a young man who had been
convicted of a drug trafficking crime and whose admitted possession of marijuana had
previously led to several minor run-ins with Nebraska authorities. Although these
factors were understandably troubling to the district court, the multiple conditions of
supervised release designed to prevent Wakefield from possessing or using narcotics
will hopefully serve to deter him, upon release from prison, from returning to his illegal
ways. Similarly, the prohibition on excessive use of alcohol should cause him to refrain
from immoderate consumption of that intoxicant. In light of these facts, and because
the district court did not have before it evidence sufficient to support a finding that
Wakefield is prone to abuse alcohol or that alcohol had any part in the commission of
the offense to which he pleaded guilty, we determine that the supervised release terms
which Wakefield finds objectionable are not "reasonably relate[d] to the goals of
rehabilitation and protection." Prendergast, 979 F.2d at 1293.

      For these reasons, we vacate the district court's imposition of the conditions of
supervised release which completely preclude Wakefield from possessing or consuming
alcohol, subject him to testing to detect the presence of alcohol in his body, and require
him to submit to warrantless searches for alcohol.4 We instruct the district court, on

      4
        We have studied cases affirming conditions similar to those discussed here, and
we find them to be easily distinguishable. See United States v. Wesley, 81 F.3d 482,
484 (4th Cir. 1996)(adjudging Prendergast to be inapposite where defendant "had been
previously convicted of being intoxicated and disruptive, had been previously convicted
of driving under the influence, had tested positive for drugs many times, and had just
beaten his wife mercilessly (with a steel-toed boot and a lamp) after getting drunk on

                                          -12-
remand, to eliminate these terms, but we leave it to the court's discretion whether to
retain other conditions which are in accord with the law of this Circuit.

III. CONCLUSION

      We affirm Bass's conviction and sentence, but we vacate portions of Wakefield's
sentence and remand for proceedings consistent with this opinion.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

      A true copy.



             Attest:



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




whiskey and beer" (citations omitted)); United States v. Thurlow, 44 F.3d 46, 47 (1st
Cir.)("Thurlow comes from a family with an active history of alcohol abuse and his
record indicated that substance abuse was and continued to be a serious problem for
him."), cert. denied, 115 S. Ct. 1987 (1995); United States v. Johnson, 998 F.2d 696,
699 (9th Cir. 1993)("In sentencing [the defendant], the district court was faced with a
long history of substance abuse and violent aggression.").

                                         -13-
