                        United States Court of Appeals

                            FOR THE EIGHTH CIRCUIT
     ___________

     No. 96-2566
     __________

United States of America,             *
                                      *
           Appellee,                  *
                                      *
     v.                               *
                                      *
Brian Matlock, also known as          *
“Slim,”                               *
                                      *
           Appellant.                 *

     ___________
                                          Appeals from the United States
     No. 96-2618                          District Court for the
     ___________                          District of Minnesota.

United States of America,             *
                                      *
           Appellee,                  *
                                      *
     v.                               *
                                      *
Tony Howze, also known as             *
Fatwood and Fats,                     *
                                      *
           Appellant.                 *

     ___________

     No. 96-2619
     ___________

United States of America,             *
                                      *
           Appellee,                  *
                                      *
     v.                               *
                                      *
Michael Lipscomb,                     *
                                      *
           Appellant.                 *
                                  ___________

                   Submitted:     December 10, 1996

                         Filed:   April 1, 1997
                                  ___________

Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.
                               ___________


MAGILL, Circuit Judge.


     Brian Matlock, Tony R. Howze, and Michael Lipscomb were arrested on
drug conspiracy charges.     Matlock and Howze pled guilty to conspiracy
charges for distribution and possession with intent to distribute cocaine
and cocaine base, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (1994).
Matlock also pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (1994).        Lipscomb was convicted by a
jury of conspiracy to distribute and possess with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846
(1994), and aiding and abetting an attempt to possess with intent to
distribute cocaine and cocaine base, in violation of 18 U.S.C. § 2 (1994)
and 21 U.S.C. §§ 841(a)(1), 846.      Matlock and Howze both argue that the
district court1 erred in applying the sentencing guidelines.         Lipscomb
argues that there was insufficient evidence to convict and challenges the
admission of certain testimony.     We affirm.
                                      I.


     Matlock and Howze were co-leaders of a cocaine distribution network
that operated in Minneapolis, Minnesota from at least




       1
       The Honorable James M. Rosenbaum, United States District
Judge for the District of Minnesota.

                                     -2-
December 1994 through June 10, 1995.   See Matlock Plea Agreement (Jan. 26,
1996) at ¶¶ 1, 9A; Howze Plea Agreement (Feb. 2, 1996) at ¶¶ 1, 7.    On at
least two occasions, Matlock and Howze attempted to possess with intent to
distribute cocaine and cocaine base sent to them by Marvin Creque, their
supplier in Florida.   Id. at ¶ 1; Matlock Plea Agreement at ¶ 1. On each
occasion, Creque sent the package of drugs by express mail.


     The first package, which contained three kilograms of cocaine and
three ounces of cocaine base, was intercepted and seized by law enforcement
officials on May 5, 1995, as part of an ongoing drug investigation.    This
package was never delivered.


     On June 9, 1995, law enforcement officials intercepted the second
package sent by Creque.    After replacing the bulk of the drugs with a
noncontrolled substance, an undercover police officer posing as a delivery
person delivered the package, as addressed, to the residence of Howze's
stepmother, Patricia Lomax.    Lipscomb received the package at Lomax's
residence and signed for it using a false name.   The police then arrested
Matlock, Howze, Lipscomb, and Lomax.     In addition, the police arrested
several others involved in the distribution of the cocaine as well as
Matlock's live-in girlfriend, Yolanda Washington, who helped Matlock
prepare the cocaine for distribution.2


     Matlock and Howze pled guilty to drug conspiracy charges.      Matlock
also pled guilty to being a felon in possession of a firearm.   Pursuant to
individual plea agreements, both Matlock and
Howze stipulated to being leaders of a drug conspiracy, and the parties
stipulated that Matlock and Howze should each receive a




     2
      Creque remains a fugitive from the law.

                                   -3-
two-level upward sentencing adjustment under U.S.S.G. § 3B1.1(c) because
of their leadership roles.


        In Matlock's plea agreement, the government also agreed to move for
a downward sentencing departure pursuant to U.S.S.G. § 5K1.1 if Matlock
substantially      assisted       the    government   in   the     prosecution     of    his
codefendants.     The plea agreement further provided that "the government .
. . will decide whether the defendant has cooperated sufficiently to
warrant a motion for downward departure."             Matlock Plea Agreement at ¶ 5.


        At    trial,   Lipscomb    was    convicted   by   a    jury   of   conspiracy   to
distribute and possess with intent to distribute cocaine and cocaine base.
He was also convicted of aiding and abetting an attempt to possess with
intent to distribute cocaine and cocaine base.             His codefendant at trial,
Lomax, was acquitted.


        The    evidence   against       Lipscomb   consisted     mainly     of   wiretapped
telephone conversations.          One such conversation involved Matlock telling
Lipscomb to deliver a quantity of cocaine to a particular customer known
as "Larry Love."       Another conversation involved a discussion of the June
9 drug shipment that law enforcement officials later intercepted and
delivered to Lipscomb at Lomax's residence.             In addition, law enforcement
officials searched Lipscomb's apartment and seized a list containing the
names    of    known   cocaine    customers    followed    by    numbers    denoting    drug
quantities as well as an electronic scale of the type commonly used in
weighing drugs.
        The government also called Matlock to testify pursuant to his plea
agreement against Lipscomb and Lomax.              He initially refused to enter the
courtroom when called as the government's first witness.                     When Matlock
finally did take the stand, the testimony he gave




                                            -4-
minimized the roles played by both Lipscomb and Lomax.     His trial testimony
was far less incriminating and far less helpful to the government than the
sworn testimony he gave at his plea hearing.      Moreover, the day after the
trial, Matlock called the prosecuting attorney and left a message on his
answering machine.      In the message, Matlock informed the prosecuting
attorney that "yesterday, uh, was practically a act.      I mean, I didn't want
nobody to see uh --as well as, as well as some concern as well--but, but
basically it was a act.       You know, facing everybody out there, uh, I had
to show some kinda, some kinda somethin' yeah."     Message from Matlock (Feb.
13, 1996), reprinted in Appellee's App. at 10.


     In response to Matlock's trial testimony, the government sought and
obtained permission, over Lipscomb's objections, to read excerpts to the
jury from Matlock's prior plea hearing testimony.            The plea hearing
testimony incriminated both Lipscomb and Lomax.     In particular, Matlock had
previously testified at his plea hearing that Lipscomb had delivered drugs
for him to Larry Love and that Lipscomb went to Lomax's residence to
receive a shipment of drugs that would later be distributed.


     At sentencing, the district court increased both Matlock's and
Howze's offense levels by four levels for their leadership roles in the
conspiracy   pursuant    to    U.S.S.G.   §   3B1.1(a),   notwithstanding   the
government's stipulation to a two-level enhancement.        Both Matlock’s and
Howze’s plea agreements expressly provided that the district court was not
bound by the stipulations of the parties.      Matlock Plea Agreement at ¶ 6;
Howze Plea Agreement at ¶ 4.
     At sentencing, the district court found that the following five
individuals participated in the conspiracy: Matlock, Howze, Lipscomb,
Creque, and Washington.         Matlock Sent. Tr. at 20.       The court also
considered several subdistributors of cocaine that




                                       -5-
participated in the criminal activity.      Id.   At Howze's sentencing hearing,
the district court referenced his findings in Matlock's sentencing hearing,
stating that "this group clearly involved five or more."        Howze Sent. Tr.
at 7.    Matlock, Howze, and Lipscomb appeal.


                                      II.


        Matlock and Howze challenge the district court's decision to increase
their respective offense levels by four pursuant to U.S.S.G. § 3B1.1(a).
Section 3B1.1(a) calls for a four-level increase in a defendant's offense
level "[i]f the defendant was an organizer or leader of a criminal activity
that involved five or more participants . . . ."          U.S.S.G. § 3B1.1(a).
Matlock and Howze argue that the district court clearly erred when it found
that five or more persons were involved in the criminal activity.            We
disagree.


        We review a district court's finding of the number of persons
involved in a criminal activity for clear error.          See United States v.
Smith, 62 F.3d 1073, 1079 (8th Cir. 1995), cert. denied, 116 S. Ct. 826
(1996).     For purposes of U.S.S.G. § 3B1.1(a), “[a] 'participant' is a
person who is criminally responsible for the commission of the offense, but
need not have been convicted."      U.S.S.G. § 3B1.1, comment. (n.1).       The
person being sentenced is counted as a participant in determining the total
number of participants.     See United States v. Kenyon, 7 F.3d 783, 785-86
(8th Cir. 1993); see also United States v. Logan, 54 F.3d 452, 456 (8th
Cir. 1995) ("More than one person in a conspiracy can qualify as a leader
or organizer.").    Participants also include intermediaries who sell drugs
on behalf of the defendant.     See United States v. Miller, 91 F.3d 1160,
1163-64 (8th Cir. 1996).




                                     -6-
        Given       the   participation      of   Matlock,   Howze,   Lipscomb,     Creque,
Washington, and the several subdistributors named by the district court,
it was not clearly erroneous for the district court to have found that at
least five persons were involved in the criminal activity.                Therefore, the
district court did not err in applying § 3B1.1(a).


                                              III.


        Matlock argues that the district court erred in denying his motion
for an order requiring the government to make a U.S.S.G. § 5K1.1 downward
departure motion.          Specifically, he argues that the government's refusal
to bring a § 5K1.1 motion for substantial assistance was irrational and in
bad faith.          We disagree.


        Under § 5K1.1, the district court can depart downward from the
sentencing guidelines "[u]pon motion of the government stating that the
defendant has provided substantial assistance in the investigation or
prosecution of another person who has committed an offense . . . ."
U.S.S.G. § 5K1.1.         It is well settled “that the court is without authority
to   grant      a    downward    departure    for    substantial    assistance     absent   a
government motion."             United States v. Kelly, 18 F.3d 612, 617 (8th Cir.
1994)    (citations        omitted).      "The       government's   refusal   to    file    a
substantial-assistance motion is reviewable only when the defendant makes
a substantial threshold showing that the refusal was irrational or based
on an unconstitutional motive."              United States v. Nicolace, 90 F.3d 255,
258-59 (8th Cir. 1996) (citing Wade v. United States, 504 U.S. 181, 185-87
(1992)).


        Matlock has not met this burden.             Despite a plea agreement obligating
Matlock to cooperate in the prosecution of his




                                              -7-
codefendants, he initially refused to enter the courtroom when he was
called as the government's first witness in the trial of Lipscomb and
Lomax.   When he finally did testify at trial, he attempted to minimize the
roles that Lipscomb and Lomax played in the conspiracy whereas his earlier
plea hearing testimony had been far more incriminating.   Finally, Matlock
admitted that his testimony “was practically a[n] act.”          Message from
Matlock, reprinted in Appellee’s App. at 10.


     In the plea agreement, the government expressly conditioned its
obligation to file a § 5K1.1 motion on the government's discretionary
assessment of whether Matlock provided substantial assistance.    See Matlock
Plea Agreement at ¶ 5.   Given his near total lack of cooperation at trial,
Matlock has not made a substantial showing that the government's decision
to refuse to file a § 5K1.1 motion was irrational or in bad faith.        Cf.
United States v. Johnigan, 90 F.3d 1332, 1339 (8th Cir. 1996) (holding that
the defendant had not made a substantial threshold showing that it was
irrational for the government to refuse a § 5K1.1 motion at least in part
because "the government . . . expressed the view that the assistance
provided by [the defendant] turned out to be unreliable" and "described his
assistance as having negative value"); Nicolace, 90 F.3d at 259 (holding
that the defendant had not made a substantial threshold showing where the
government found his information unhelpful).


                                    IV.


     Pointing to the increased penalties for cocaine base as compared to
cocaine, Howze challenges his sentence for distribution and possession of
cocaine base on equal protection grounds.    Howze's argument lacks merit.
See United States v. Macklin, 104




                                    -8-
F.3d 1046, 1050 (8th Cir. 1997); United States v. White, 81 F.3d 80, 84
(8th Cir. 1996); United States v. Delaney, 52 F.3d 182, 189 (8th Cir.),
cert. denied, 116 S. Ct. 209 (1995); United States v. Clary, 34 F.3d 709,
710-14 (8th Cir. 1994), cert. denied, 115 S. Ct. 1172 (1995).


                                            V.


       Lipscomb argues that there was insufficient evidence to convict him
of drug conspiracy charges and of aiding and abetting charges.                       We
disagree.


       When considering a claim that the evidence was insufficient to
sustain a verdict, we review the evidence in the light most favorable to
the verdict and grant all reasonable inferences in favor of the verdict.
United States v. Melina, 101 F.3d 567, 573 (8th Cir. 1996).                   "We will
reverse only if we conclude that a reasonable fact finder must have
entertained a reasonable doubt about the government's proof of one of the
offense's essential elements."         Id. (quotations and citation omitted).


       To prove that Lipscomb “engaged in a drug conspiracy, the government
must demonstrate that an agreement existed between at least two people;
that   the   defendant    knew   of   the   conspiracy;    and   that   the   defendant
intentionally joined the conspiracy."            United States v. Rogers, 91 F.3d 53,
57 (8th Cir. 1996).      To prove that Lipscomb engaged in the distribution of
cocaine and cocaine base,
the government must show that Lipscomb “knowingly sold or otherwise
transferred” cocaine and cocaine base.             Id.


       Viewed in the light most favorable to the verdict, Matlock's plea
hearing testimony and the wiretapped phone conversations were




                                            -9-
sufficient to sustain Lipscomb's conviction for drug conspiracy and
distribution.      This evidence proved that Lipscomb delivered cocaine to
Larry Love at the behest of Matlock.


      To sustain Lipscomb's conviction for aiding and abetting an attempt
to   possess with intent to distribute cocaine and cocaine base, the
government must prove that Lipscomb: (1) "associated himself with the
unlawful venture;" (2) "participated in it as something he wished to bring
about;" and (3) "sought by his actions to make it succeed."        United States
v. Duke, 940 F.2d 1113, 1117 (8th Cir. 1991) (quotations and citations
omitted).      Viewed in the light most favorable to the verdict, Matlock's
plea hearing testimony, the wiretapped conversations, and the testimony of
law enforcement officials who made the controlled delivery proved that
Lipscomb went to Lomax's house to receive the express mail package of drugs
sent by Creque for distribution by Matlock and Howze.       This evidence is far
more than sufficient to sustain the aiding and abetting charges of which
Lipscomb was convicted.     Cf. United States v. Roach, 28 F.3d 729, 737 (8th
Cir. 1994) (holding that evidence was sufficient to sustain aiding and
abetting conviction where videotape evidence and trial testimony, while
"not overwhelming," tended to prove the defendant's active participation);
Duke, 940 F.2d at 1117 (holding that evidence was sufficient to sustain
aiding   and    abetting   conviction   notwithstanding   that   there   was   only
"circumstantial evidence" indicating the defendant's active participation).


                                        VI.


      Lipscomb challenges the district court's decision to admit portions
of Matlock's plea hearing testimony into evidence pursuant to Federal Rule
of Evidence 801(d)(1)(A) after Matlock had already




                                        -10-
testified at trial as a government witness.               Under Rule 801(d)(1)(A), a
statement is not hearsay if:

       The declarant testifies at the trial or hearing and is subject
       to cross-examination concerning the statement, and the
       statement is (A) inconsistent with the declarant’s testimony,
       and was given under oath subject to the penalty of perjury at
       a trial, hearing, or other proceeding . . . .


Fed.   R.   Evid.    801(d)(1)(A)   (emphasis       added).       Lipscomb   argues   that
Matlock's plea hearing testimony does not fall within Rule 801(d)(1)(A)
because Matlock's plea hearing testimony and his trial testimony were not
inconsistent.       We disagree.
       In applying Rule 801(d)(1)(A), "inconsistency is not limited to
diametrically       opposed   answers   but   may    be   found    in   evasive   answers,
inability to recall, silence, or changes of position."                  United States v.
Russell, 712 F.2d 1256, 1258 (8th Cir. 1983) (per curiam) (quotations and
citations omitted).       The district court has considerable discretion in
determining whether prior statements are inconsistent with trial testimony.
Id.; United States v. Thompson, 708 F.2d 1294, 1302 (8th Cir. 1983).


       At trial, Matlock attempted to minimize the role played by Lipscomb
in the drug conspiracy.          His testimony was far less incriminating and
therefore far less helpful to the government than his prior plea hearing
testimony.    For this reason, we conclude that the district court did not
err in determining that Matlock's statements at trial were sufficiently
inconsistent with his prior plea hearing testimony for his plea hearing
testimony to be admitted.          Cf. Russell, 712 F.2d at 1258 (holding that
"[the witness's] statement on the stand that he could not recall having any
contact with [the defendant] around the time he cashed the forged postal
money orders is sufficiently inconsistent with his




                                         -11-
grand jury testimony for the trial court to admit the previous testimony
[under Rule 801(d)(1)(A)]"); Thompson, 708 F.2d at 1302 (holding that "the
court    did    not   abuse   its   discretion   in   view   of   [the   witness's]
recalcitrance").


                                        VII.


        For the foregoing reasons, we affirm the district court.


        A true copy.


               Attest:


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




                                        -12-
