UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 95-5501
CHARLES ALEXANDER HUGHES, SR.,
a/k/a Little Charles,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 95-5502

DENNIS DWAYNE JONES,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert J. Staker, Senior District Judge.
(CR-94-15)

Argued: May 10, 1996

Decided: July 12, 1996

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Michael Joseph Curtis, Ashland, Kentucky, for Appellant
Hughes; Gregory Marshall Courtright, COLLINS & COURTRIGHT,
Charleston, West Virginia, for Appellant Jones. Miller Allison
Bushong, III, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee. ON BRIEF: Rebecca A. Betts, United States
Attorney, Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Charles Alexander Hughes, Sr., and Dennis Dwayne Jones (collec-
tively Appellants) were convicted of conspiracy to distribute and to
possess with intent to distribute cocaine base, see 21 U.S.C.A
§§ 841(a)(1), 846 (West 1981 & Supp. 1996), and one count each of
distribution of cocaine base, see 21 U.S.C.A. § 841(a)(1); addition-
ally, Jones was convicted of one count of possession with intent to
distribute cocaine base, see id. Although Appellants raise a host of
alleged errors at trial and sentencing, all of their contentions are
meritless; accordingly, we affirm their convictions and sentences.

I.

Viewed in the light most favorable to the Government, see Glasser
v. United States, 315 U.S. 60, 80 (1942), the testimony of Govern-
ment witnesses established the following facts. From at least March
1993 to January 1994, Hughes lived in his mother's house with Jones,
Robert Ziegler, Greco Lewis, and Jerry Westmoreland. Over the
course of this period, Hughes's residence served as a distribution
point for sales of cocaine base. Hughes traveled out-of-town to pur-
chase powder cocaine; upon Hughes's return, members of the house-

                    2
hold would convert the powder cocaine to cocaine base, cut the
cocaine base into rocks, and store the cocaine base in baggies in
Hughes's basement for future distribution.

Jones served as Hughes's "right-hand man" and the "main seller,"
assisting Hughes in distributing the cocaine base to users and to other
dealers selling cocaine base for the conspiracy. (J.A. vol. III, tr. at
427.) Cocaine base was available to customers at Hughes's residence
twenty-four hours per day, seven days per week.

During the spring of 1993, the Huntington, West Virginia, Federal
Drug Task Force began surveillance of Hughes's residence after an
investigation revealed that numerous individuals suspected of using,
possessing, and distributing significant quantities of cocaine base fre-
quented the house. In connection with the investigation, confidential
informants made seven controlled purchases of cocaine base at
Hughes's residence: three from Jones, one from Hughes, one from
Ziegler, one from Westmoreland, and one from an unidentified indi-
vidual. The investigation culminated in the execution of a federal
search warrant at Hughes's residence. The search resulted in the con-
fiscation of 6.18 grams of cocaine base and $1,654 in cash, and the
arrest of Hughes, Jones, Lewis, Westmoreland, and Stanley Russell.
Hughes's son, Charles A. Hughes, Jr., was later arrested for his role
in the conspiracy.

Subsequently, a federal grand jury in the Southern District of West
Virginia indicted Hughes, Jones, Hughes, Jr., Westmoreland, Ziegler,
Russell, and Lewis each for conspiracy to distribute and to possess
with intent to distribute cocaine base; Hughes, Jones, Westmoreland,
and Ziegler each for one count of distribution of cocaine base; and
Jones and Lewis each for one count of possession with intent to dis-
tribute cocaine base. Pursuant to plea agreements, Jones, Hughes, Jr.,
Westmoreland, Ziegler, Russell, and Lewis pleaded guilty to the con-
spiracy charge prior to trial and agreed to cooperate with the Govern-
ment in exchange for the its promise to move the court to dismiss the
other charges. After the Government acquired extensive evidence that
Jones had not been forthright and truthful in his debriefings, the Gov-
ernment successfully moved the court to void his plea agreement and
set a trial date for Jones.

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After a one-week joint trial, the jury returned verdicts convicting
Hughes and Jones on all counts. The district court sentenced Hughes
to 324 months imprisonment and a five-year term of supervised
release on the conspiracy conviction and 240 months imprisonment
and a three-year term of supervised release on the distribution convic-
tion, to run concurrently. The district court sentenced Jones to 188
months imprisonment each on the conspiracy, distribution, and pos-
session convictions, and supervised release terms of five years, three
years, and four years, respectively, all to run concurrently. Addition-
ally, the district court imposed fines of $5,000 on Hughes and $4,000
on Jones.

Although Appellants challenge their convictions and sentences on
numerous grounds, we limit our written discussion to Appellants'
three main arguments: (1) whether the Government failed to prove
affirmatively that the evidence introduced at trial was derived from
legitimate sources independent of Jones's debriefings under Kastigar
v. United States, 406 U.S. 441 (1972); (2) whether the Government
offered sufficient evidence at trial to sustain Appellants' conspiracy
convictions; and (3) whether the district court clearly erred in finding
that Hughes was the "organizer or leader of a criminal activity that
involved five or more participants" under United States Sentencing
Commission, Guidelines Manual, § 3B1.1(a) (Nov. 1994). We
address these contentions seriatim.

II.

Jones first claims that the Government failed to meet its burden
under Kastigar of proving that its prosecution was based on evidence
obtained independently of the statements Jones made pursuant to the
plea agreement that was later revoked. See Kastigar, 406 U.S. at 460-
461. Because the terms of Jones's plea agreement permitted the Gov-
ernment to revoke the agreement and its attendant protections in the
event Jones breached it, we reject Jones's contention.

In Kastigar, the Supreme Court upheld the power of the Govern-
ment to compel a witness' self-incriminating testimony in exchange
for the grant of use and derivative use immunity under 18 U.S.C.A.
§ 6002 (West 1985 & Supp. 1996). See Kastigar, 406 U.S. at 448. In
upholding this power, however, the Court devised certain safeguards

                    4
to preserve the witness' Fifth Amendment privilege against compelled
self-incrimination. See id. at 460-61. To protect the privilege, the
Government is forbidden from using "the immunized testimony or
any evidence derived from it either directly or indirectly" in any sub-
sequent prosecution of the witness. United States v. Harris, 973 F.2d
333, 336 (4th Cir. 1992). This mandate compels the district court to
hold a "Kastigar hearing to allow the government the opportunity to
demonstrate that all its evidence came from sources independent of
the compelled testimony." Id. In the Kastigar hearing, the Govern-
ment bears the "heavy burden" of proving "that all of the evidence it
proposes to use was derived from legitimate independent sources."1
Kastigar, 406 U.S. at 461-62.

The protections afforded a defendant under Kastigar may arise in
two circumstances. First, Kastigar may be implicated pursuant to
§ 6002 if the Government compels the defendant to testify after he
invokes his privilege against self-incrimination. See United States v.
Eliason, 3 F.3d 1149, 1153 (7th Cir. 1993). Second, the defendant
may be entitled to the Kastigar safeguards under principles of con-
tract law if the defendant agrees to cooperate with the Government,
and in exchange, the Government promises not to use the information
provided against the defendant. See id.; United States v. Pelletier, 898
F.2d 297, 301 (2d Cir. 1990). Because the Government never granted
Jones statutory use and derivative use immunity under § 6002, we
address only whether the protections Jones asserts arose from the plea
agreement. See United States v. Brown, 979 F.2d 1380, 1381 (9th Cir.
1992) ("[T]he Government is not bound by the procedures and
requirements of the use immunity statute when granting immunity in
_________________________________________________________________

1 Jones misapprehends the meaning of the term "legitimate independent
sources": In his reply brief, Jones asserts that the witnesses for the Gov-
ernment are neither legitimate nor independent because they are "self-
confessed drug addicts and co-defendants and `associates' testifying
under the conditions of their plea agreements." (Appellants' Reply Br. at
1.) Under Kastigar, however, we inquire only whether the Government
prosecuted the defendant using evidence derived directly or indirectly
from the defendant's immunized testimony, not whether the Govern-
ment's witnesses are credible; indeed, we are "bound by the credibility
choices of the jury." United States v. Lamarr , 75 F.3d 964, 973 (4th Cir.
1996) (internal quotation marks omitted).

                    5
the form of a contractual agreement . . . ."). In determining whether
Jones is entitled to the Kastigar protections, we turn to the terms of
the plea agreement itself, see Pelletier, 898 F.2d at 301-02, and we
interpret it using principles of contract law, see Brown, 979 F.2d at
1381.

Jones's plea agreement does not require the Kastigar safeguard that
Jones asserts because the agreement provides for the revocation of
any protection from prosecution upon Jones's breach. Although the
plea agreement grants Jones protection from prosecution that appears
to be similar in scope to the concept of use and derivative use immu-
nity defined in Kastigar,2 the terms of the agreement expressly pro-
vide that the protection is revoked if "the agreement becomes void
due to violation of any of its terms by [Jones]," (J.A. vol. II, p. 176.)
Thus, even if we were to assume that the plea agreement required the
Government to prove a legitimate, independent source for its evidence
in a subsequent prosecution, that requirement was revoked upon
Jones's failure to be forthright and truthful.3 Because Jones does not
dispute that he failed to be forthright and truthful in his debriefings,
we hold that the Government was released from the strictures of
_________________________________________________________________
2 Paragraph five of the plea agreement provides, in pertinent part:

          Nothing contained in any statement or testimony given by Mr.
          Jones pursuant to this agreement or any evidence developed
          therefrom will be used against him directly or indirectly in any
          further criminal prosecutions or in determining the applicable
          guideline range under the Federal Sentencing Guidelines . . . .
          However, nothing contained in this agreement restricts the use of
          information obtained by the United States from an independent,
          legitimate source, separate and apart from that information and
          testimony being provided by the defendant pursuant to this
          agreement, in determining the applicable guideline range, nor
          does this agreement prevent Mr. Jones from being prosecuted for
          any violations of federal and state laws he may have committed
          should evidence of any such violations be obtained from any
          such independent, legitimate source.

(J.A. vol. II, p. 176-77.)
3 The plea agreement provides that"Jones will be completely forthright
and truthful with this office and federal, state and local law enforcement
agents with regard to all inquiries made of him." (J.A. vol. II, p. 176.)

                     6
Kastigar upon Jones's breach of the plea agreement.4 See United
States v. Skalsky, 857 F.2d 172, 176 (3d Cir. 1988) ("If a witness
breaches the agreement by not providing truthful testimony, the wit-
ness can be prosecuted not only for perjury and obstruction of justice,
but also for any substantive offenses about which he has testified.")

Jones further invokes Federal Rule of Criminal Procedure 11 as a
basis for placing a burden on the Government to establish a legiti-
mate, independent source for the evidence used in his prosecution.
Although Rule 11 provides that "statement[s] made in the course of
plea discussions . . . which result in a plea of guilty later withdrawn"
are inadmissible against a defendant, Fed. R. Crim. P. 11(e)(6)(D),5
it does not further burden the prosecution with a requirement to prove
the source of its evidence. Because Jones does not contend that the
prosecution offered statements made in the course of plea discussions
against him at trial, but argues only that the district court failed to pro-
vide to him the protection under Kastigar to which he erroneously
believed he was entitled, we also find no violation of Rule 11.

III.

Second, Appellants claim that the Government failed to offer suffi-
cient evidence at trial to sustain their convictions for conspiracy to
distribute and to possess with intent to distribute cocaine base. Appel-
lants cite two bases for their claim: (1) The small physical amount of
cocaine base recovered in the search of Hughes's residence is insuffi-
cient to infer that Appellants conspired to distribute and to possess
with intent to distribute cocaine base; and (2) although the Govern-
ment may have proved individual drug transactions, the Government
failed to prove the necessary agreement between Appellants for a con-
_________________________________________________________________
4 Even if the Government were burdened with the safeguards of
Kastigar, the district court ruled and the Government argues persuasively
that the evidence offered in the prosecution of Jones was derived from
legitimate sources independent of Jones's statements made pursuant to
the voided plea agreement. Because we conclude that Jones was not enti-
tled to a Kastigar hearing in the first instance, however, we decline to
address this issue.

5 Federal Rule of Evidence 410(4) contains a similar proscription.

                     7
spiracy. Our review of the evidence, however, leads to the conclusion
that the evidence is sufficient to sustain the convictions.

To prove a criminal conspiracy involving illicit drugs, the Govern-
ment must establish "(1) an agreement between two or more persons
to undertake conduct that would violate the laws of the United States
relating to controlled substances and (2) the defendant's wilful joinder
in that agreement." United States v. Clark , 928 F.2d 639, 641-42 (4th
Cir. 1991). The elements of conspiracy may be proved through cir-
cumstantial evidence, United States v. Collazo , 732 F.2d 1200, 1205
(4th Cir. 1984), cert. denied, 469 U.S. 1105 (1985), and "[o]nce it has
been shown that a conspiracy exists, the evidence need only establish
a slight connection between the defendant and the conspiracy to sup-
port conviction," United States v. Brooks, 957 F.2d 1138, 1147 (4th
Cir.), cert. denied, 505 U.S. 1228 (1992).

In Glasser, the Supreme Court explained that a jury verdict "must
be sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it." Glasser, 315 U.S. at 80.
A reviewing court, therefore, will sustain a conviction if a rational
trier of fact could have found the elements of the crime beyond a rea-
sonable doubt based on the record evidence. See United States v.
Powell, 469 U.S. 57, 67 (1984). In applying this standard of review,
we must remain cognizant that "[t]he jury, not the reviewing court,
weighs the credibility of the evidence . . . , and if the evidence sup-
ports different, reasonable interpretations, the jury decides which
interpretation to believe." United States v. Murphy, 35 F.3d 143, 148
(4th Cir. 1994) (citations omitted), cert. denied, 115 S. Ct. 954
(1995). With these principles in mind, we turn to Appellants' argu-
ments.

Appellants contend that because the Government recovered only
8.26 grams6 of cocaine base as physical evidence, an amount Appel-
lants claim is inconsistent with the intent to distribute, the jury could
not properly infer that Appellants conspired to distribute and to pos-
sess with intent to distribute cocaine base. Even assuming that we
_________________________________________________________________
6 The 8.26 grams of cocaine base consists of the 6.18 grams the Gov-
ernment recovered in its raid of Hughes's residence and 2.08 grams
received in controlled purchases by confidential informants.

                    8
would find 8.26 grams of cocaine base to be a personal-use quantity,
which is unlikely, see United States v. Lamarr , 75 F.3d 964, 973 (4th
Cir. 1996) (holding that possession of 5.72 grams of cocaine base
combined with other circumstantial evidence was sufficient to support
the jury's inference of intent to distribute), Appellants' contention is
meritless: Appellants would have us ignore the plethora of testimony
regarding the large quantities of cocaine base passing through
Hughes's residence. One coconspirator testified that he observed
between ten and twenty sales of cocaine base per evening from
Hughes's residence during the conspiracy period, that he saw cocaine
base being cooked on two occasions, and that he purchased two "$500
sack[s]" of cocaine base for resale in the Hughes residence, one sack
from Hughes and one sack from Jones. (J.A. vol. II, tr. at 353.)
Another coconspirator testified that Jones directed him on more than
five occasions to retrieve baggies containing $500 worth of cocaine
base from the basement, that he saw cocaine base being cooked and
then cut into rocks in Hughes's residence two or three times, and that
cocaine base was available for sale in Hughes's residence twenty-four
hours per day, seven days per week. This and other testimony at trial
establishes that a rational jury could find that large amounts of
cocaine base were being distributed from Hughes's residence7 and,
thus, infer that Appellants had the requisite intent to distribute.

Appellants also contend that even if the testimony adduced at trial
establishes the existence of individual cocaine base sales, the Govern-
ment offered no evidence from which a jury could rationally infer the
existence of a conspiratorial agreement between Appellants. Again,
Appellants' argument simply ignores the testimony of the Govern-
ment's witnesses. One coconspirator testified that Jones was the
second-in-command to Hughes in an extensive conspiracy to distrib-
ute drugs from Hughes's residence. In a controlled buy, one witness
testified that she saw Hughes provide Jones with the cocaine base she
bought from Jones. Another witness related that Hughes gave him a
"cookie" of cocaine base, asked him to cut it, and instructed him to
_________________________________________________________________
7 Government witnesses testified that customers expected to receive
approximately one gram of cocaine base for $100 and that each cooking
involved at least one ounce of cocaine base. At sentencing, the district
court found by a preponderance of the evidence 328.08 grams of cocaine
base attributable to Hughes and 266.08 grams to Jones.

                    9
give the resulting pieces of cocaine base to Jones. This testimony,
combined with the facts that Jones and Hughes both resided in the
same house, sold cocaine base from that house, and stored the cocaine
base they sold in the basement of that house, provides substantial evi-
dence from which a rational jury could infer the existence of an agree-
ment between Hughes, Jones, and others to produce, store, and
distribute cocaine base. Therefore, we reject Appellants' claim that
their conspiracy convictions were not supported by substantial evi-
dence.

IV.

Finally, Hughes claims that the district court clearly erred in con-
cluding that Hughes was the "organizer or leader of a criminal activity
that involved five or more participants or was otherwise extensive."
See U.S.S.G. § 3B1.1(a). In determining whether a participant is an
organizer or leader of a criminal activity, the court should consider
such factors as:

          the exercise of decision making authority, the nature of par-
          ticipation in the commission of the offense, the recruitment
          of accomplices, the claimed right to a larger share of the
          fruits of the crime, the degree of participation in planning or
          organizing the offense, the nature and scope of the illegal
          activity, and the degree of control and authority exercised
          over others.

Id., comment. (n.4). We review the district court's determination of
Hughes's role in the offense for clear error. See United States v.
Hyppolite, 65 F.3d 1151, 1159 (4th Cir. 1995), cert. denied, 116 S.
Ct. 1558 (1996).

Contrary to Hughes's assertions, the district court's finding is sup-
ported by the evidence offered by the Government at trial. Witnesses
for the Government testified that Hughes was the leader of the con-
spiracy, that Hughes purchased powder cocaine that was converted
into cocaine base and later distributed by other dealers, that cocaine
base was manufactured, stored, and sold in Hughes's residence, and
that Hughes supplied other dealers with cocaine base. Regarding the
number of participants, evidence at trial established that Jones,

                    10
Ziegler, Lewis, Westmoreland, Hughes, Jr., and others participated
with Hughes in the criminal activities of the conspiracy. Based on this
evidence, we hold that the district court's finding is not clearly erro-
neous.

V.

In summary, we conclude that Jones is not entitled to the protection
he asserts under Kastigar; therefore, we hold that the Government
was not required to demonstrate a legitimate, independent source for
the evidence offered against him at trial. Reviewing the sufficiency
of the evidence, we conclude that it was sufficient to sustain Appel-
lants' conspiracy convictions beyond a reasonable doubt. Finally, we
hold that the district court did not clearly err in finding Hughes to be
the leader of a criminal activity that involved five or more participants
under U.S.S.G. § 3B1.1. We have carefully examined Appellants'
remaining assignments of error and conclude that they are without
merit.8 The judgment of the district court is affirmed.

AFFIRMED
_________________________________________________________________

8 Appellants raised the following additional claims in their brief: (1) the
Government improperly enhanced the credibility of certain witnesses by
introducing the witnesses' plea agreements into evidence; (2) blacks
were systematically excluded from the jury in violation of Appellants'
Sixth Amendment rights; (3) the Government improperly struck a black
juror from the venire in violation of Batson v. Kentucky, 476 U.S. 79
(1986); (4) the district court erred in denying Appellants' motion for a
mistrial after improper contact between a juror and a bailiff; (5) the dis-
trict court erred in allowing the testimony of various witnesses; (6) the
district court erred in determining the amount of cocaine base attributable
to Appellants for purposes of sentencing; and (7) either the district court
in its discretion should have applied a proposed revision to U.S.S.G.
§ 2D1.1, which deletes the one-hundred-to-one powder to crack cocaine
ratio, or the district court should have declared the present version of
§ 2D1.1 to be unconstitutional.




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