                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-1817
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Macon LeJoseph Billingsley,             *
                                        *
            Appellant.                  *
                                   ___________

                              Submitted: October 19, 1998
                                  Filed: November 19, 1998
                                   ___________

Before HANSEN, LAY, and MURPHY, Circuit Judges.
                           ___________


LAY, Circuit Judge.


       Macon LeJoseph Billingsley was tried and convicted of one count of possession
of cocaine base with intent to distribute and one count of possession of heroin with
intent to distribute in violation of 21 U.S.C. § 841. The district court1 sentenced
Billingsley to 130 months, which included a two-level sentence enhancement for
obstruction of justice.

      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
                                   BACKGROUND

       On April 3, 1997, the police obtained a warrant to search Macon Billingsley’s
person and vehicle for drugs. Several police officers followed Billingsley to a Burger
King parking lot and ordered him out of the car. Although no drugs were found on
Billingsley’s person or in his car, one of the officers saw Billingsley throw a small bag
out of the car, which was later proven to be .8 grams of heroin. Subsequently, the
officers obtained a warrant to search the apartment Billingsley shared with his wife.
The police found several pieces of Billingsley’s identification and medication for his
diabetes. Inside Billingsley’s diabetic syringe kit, the officers found 11.8 grams of
crack cocaine and some heroin. More drugs were found throughout the house. They
also found a narcotic cutting agent, a scale, packaging materials, a police radio scanner,
and a pager.

        After receiving Miranda warnings, Billingsley admitted that the drugs were his
and asked to cooperate with the police. Billingsley was conditionally released to
permit his cooperation, but was instructed to have daily contact with the police.
Sentencing Hearing at 4-5, Trial Tr. I at 137. Billingsley allowed the police to set up
and tape various conversations he had with other drug dealers, including a conversation
with his heroin supplier, Eric Stiles. In late April 1997, after communications between
Billingsley and the police broke down, Billingsley left the state without notifying the
officials. He was located in Washington, D.C., on July 30, 1997, after being arrested
on separate charges.

        Despite his original agreement to cooperate, Billingsley pled not guilty and was
tried in the United States District Court for the District of Minnesota. During the trial,
a special agent for the Hennepin County Sheriff’s Office was allowed to testify about
the contents of the taped conversation between Billingsley and Stiles. The jury found
Billingsley guilty of both counts and the trial court sentenced him to 130 months,
enhancing his offense level by two levels for obstruction of justice.

                                           -2-
       Billingsley challenges (1) the district court’s admission of the agent’s testimony
about the contents of the taped telephone conversation he had with Eric Stiles; (2) the
sufficiency of the evidence on the crack cocaine count; (3) and the two-level sentencing
enhancement for obstruction of justice. We affirm.

                                    DISCUSSION

A. The Taped Conversation

        Billingsley contends that the district court erred when it permitted an agent to
testify to the contents of a taped conversation between Billingsley and his heroin
supplier, Eric Stiles. During trial, the court ruled that the government could play the
tape, but gave a limiting instruction to the jury that the evidence only went to
knowledge and intent. Trial Tr. I at 116-20. The tape machine, however, was not
functioning properly at trial, so the court allowed an agent to paraphrase what was
stated in the conversation. The agent was also allowed to interpret the code words in
the conversation, opining that Billingsley was referring to marijuana transactions and
stood to make seventy or eighty thousand dollars. Trial Tr. III at 97-98.

      Billingsley argues that these statements should never have been admitted for
three reasons. First, Billingsley contends that the agent’s testimony was hearsay.
Second, Billingsley argues that the statements are extrinsic and inadmissible character
evidence under Fed. R. Evid. 404(b). Finally, Billingsley argues that the statements he
made during the conversation with Stiles were made pursuant to a cooperation
agreement and should be excluded under Fed. R. Evid. 403.

      First, Billingsley’s statements were not hearsay because they constituted
admissions against a party. Fed. R. Evid. 801(d)(2). Billingsley argues that his taped
statements cannot be an admission because he was only saying what the police asked
him to say. We disagree. The Seventh Circuit was faced with a similar situation in

                                          -3-
United States v. Hubbard, 22 F.3d 1410 (7th Cir. 1994), cert. denied, 513 U.S. 1095
(1995). In Hubbard, a defendant’s taped post-arrest statements to a co-conspirator,
made during cooperation with the police, were admissible as voluntary admissions.
Hubbard, 22 F.3d at 1417. The court acknowledged Hubbard’s argument “that Rule
801(d)(2)(A) does not apply to [the defendant’s] statements because statements under
Rule 801(d)(2)(A) must be a ‘party’s own statement’ and his statements were made at
the bequest of the police and were, therefore, not his own.” Id. at 1417 n.2. The court
stated, however, that this was nothing more than a voluntariness argument and rejected
it because “this is not a case where the law enforcement officials overbore [the
defendant’s] will; rather, he participated willingly in an effort to improve his own
situation.” Id. at 1417. Like the situation in Hubbard, Billingsley’s statements in his
conversation with Eric Stiles were made voluntarily. Therefore, Billingsley’s
statements are admissible as admissions.

       Second, we reject the argument that the evidence of Billingsley’s statement
should have been excluded under Fed. R. Evid. 404(b). Rule 404(b) only applies to
extrinsic evidence. United States v. Heidebur, 122 F.3d 577, 579 (8th Cir. 1997). The
part of the conversation at issue in this case concerns the April 3, 1997, drug deal
which was the basis for the indictment. Therefore, evidence of the statements
pertaining to the drugs found by the police on April 3, 1997, are intrinsic and not
excludable under Rule 404(b).

      We also reject Billingsley’s final argument that any evidence obtained while he
cooperated with the police should have been excluded under Fed. R. Evid. 403.2 Rule

      2
       The defendant also alludes to the argument that the agent’s oral testimony of the
taped conversation is improper evidence. This is basically a best evidence argument
under Federal Rule of Evidence 1002 and is without merit. Rule 1002 provides that
“[t]o prove the content of a writing, recording, or photograph, the original writing,
recording, or photograph is required, except as otherwise provided in these rules or by
Act of Congress.” Fed. R. Evid. 1002. If the original is destroyed, however, then the

                                          -4-
403 provides the district court the ability “to exclude relevant evidence if its probative
value is substantially outweighed by the danger of unfair prejudice.” United States v.
Guerrero-Cortez, 110 F.3d 647, 652 (8th Cir. 1997). We reverse “a district court’s
decision under the Rule 403 balancing test . . . only if there was a clear abuse of
discretion.” United States v. Davis, 154 F.3d 772, 780 (8th Cir. 1998). We find that
the district court did not abuse its discretion in this case.3

B. Sufficiency of the Evidence for the Cocaine Base Count

       Billingsley contends that there was insufficient evidence for the jury to find him
guilty of possession with intent to distribute crack cocaine.4 He points out that there
were no witnesses that testified seeing him possess or sell cocaine base. Further,
Billingsley argues that although there were eleven grams of cocaine base found in his




district court may admit the testimony based upon secondary evidence. United States
v. Standing Soldier, 538 F.2d 196, 203 (8th Cir. 1976). Rule 1004(1) provides that the
“original is not required, and other evidence of the contents of a writing . . . is
admissible if . . . [a]ll originals are lost or have been destroyed, unless the proponent
lost or destroyed them in bad faith.” Fed. R. Evid. 1004(1). There are “no ‘degrees’
of secondary evidence and thus there [is] no requirement that [a] copy be introduced
in preference to . . . oral testimony.” Standing Soldier, 538 F.2d at 203 n.8 (citing Fed.
R. Evid. 1004 advisory committee’s note). See also United States v. Gerhart, 538 F.2d
807, 809 (8th Cir. 1976) (stating that “once an enumerated condition of Rule 1004 is
met, the proponent may prove the contents of a writing by any secondary evidence,
subject to an attack by the opposing party not as to admissibility but to the weight to
be given the evidence . . .”). Because the district court in this case could admit any
form of secondary testimony once the tape was destroyed and because there is no
evidence of bad faith, the agent’s oral testimony was properly admitted.
      3
        As the district court noted, the fact that Billingsley was cooperating with the
police at the time the taped statements were made could properly be handled through
cross examination.
      4
       Billingsley does not challenge the sufficiency of the evidence with respect to the
heroin charge.

                                           -5-
apartment, he did not have exclusive control over the apartment. His wife and her
friend also had access, and his wife testified that she had been using crack the day of
the search. Finally, Billingsley argues that the quantity of cocaine base found in the
apartment is entirely consistent with his wife’s personal use. We are unpersuaded by
his arguments. When viewed in the light most favorable to the verdict, we find there
was sufficient evidence to support a guilty verdict on Billingsley’s possession with
intent to distribute cocaine base.

        There is ample evidence that Billingsley possessed the cocaine base. At trial,
Billingsley’s wife testified that he possessed the cocaine base and a police officer
recounted Billingsley’s voluntary confession to that effect. Furthermore, the cocaine
base was found in Billingsley’s diabetic syringe kit which also contained pieces of his
identification and medication. Most importantly, Billingsley admits that he possessed
the heroin which was also found in the syringe kit. From this evidence, the jury could
have properly found that Billingsley possessed the cocaine base.

        There was also sufficient evidence of Billingsley’s intent to sell the cocaine base.
The government offered testimony of a taped conversation between Billingsley and his
supplier to show intent and knowledge of the drug trade.5 Even without this
conversation, there is sufficient circumstantial evidence that Billingsley was selling the
cocaine base. The police found a cutting agent, scales, and wrapping supplies in
Billingsley’s apartment. Courts have recognized that such scales and devices are “tools
of the trade for drug dealers.” United States v. Ford, 22 F.3d 374, 383 (1st Cir. 1994).
Such “tools of the trade” are inconsistent with personal use. The quantity of drugs
found in the defendant’s apartment also supports an intent to sell. This court has held
that “intent to distribute a controlled substance may be established by circumstantial
evidence, including possession of a large quantity of controlled substance . . . .” United




       5
       This conversation cannot be used as direct evidence that Billingsley was selling
cocaine base, because the only drug discussed was heroin. (Trial Tr. I at 123).

                                            -6-
States v. Buchanan, 985 F.2d 1372, 1377 (8th Cir. 1993). Testimony was presented
that the volume of crack cocaine possessed by the defendant would have represented
over 100 dosage units and had a street value of approximately $1,100 to $1,200. Trial
Tr. I at 142-43. Furthermore, the crack cocaine was packaged into four separate units.
Finally, the jury did not find Billingsley’s denial of his intent to sell credible. Faced
with this evidence, the jury could have properly found that Billingsley possessed the
cocaine base with intent to sell.

C. Sentencing Enhancement for Obstruction of Justice

       Billingsley contends that the district court erred by enhancing his base offense
level for obstruction of justice. The court imposed the enhancement because it found
that Billingsley “had knowledge of the investigation, that [he] had knowledge that he
would be prosecuted for his conduct on April 3, 1997, and that he left the jurisdiction
in a willful attempt to evade prosecution.” R. at 108. Billingsley does not dispute his
actions. Billingsley argues, however, that although he backed out of a cooperation
agreement, he never impeded his own investigation or prosecution.

       The United States Sentencing Guidelines § 3C1.1 provides a two-level
enhancement for obstruction of justice if “the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of justice during the
course of the investigation, prosecution, or sentencing of the instant offense of
conviction.” United States Sentencing Commission, Guidelines Manual, § 3C1.1
(1998). This court has stated that “[t]he district court has broad discretion to apply
section 3C1.1 to a wide range of conduct.” United States v. Lyon, 959 F.2d 701, 707
(8th Cir. 1992) (citation omitted). The Guidelines provide a non-exhaustive list of
examples of the type of conduct to which this enhancement applies including “escaping
or attempting to escape from custody before trial or sentencing; or willfully failing to
appear, as ordered, for a judicial proceeding.” USSG § 3C1.1, cmt. n.4(e). They also
set forth a non-exhaustive list of the types of conduct that do not warrant application



                                          -7-
of the adjustment including “avoiding or fleeing from arrest.” USSG § 3C1.1, cmt.
n.5(d). Avoiding arrest is “‘pre-investigation’ conduct [that] generally occurs without
knowledge that an investigation is underway, and it does not warrant enhancement
because it is more of an initial instinctive reaction than willful obstruction of justice.”
United States v. Hare, 49 F.3d 447, 453 (8th Cir. 1995), cert. denied, 516 U.S. 879
(1995). Billingsley concedes that leaving the jurisdiction was not an instinctive flight
and therefore not automatically excludable by the Guidelines. Therefore, the question
is whether the post-arrest, pre-indictment flight of a defendant who is not in custody
falls within Section 3C1.1.

        The facts relevant to the obstruction of justice enhancement are not in dispute.
Billingsley was arrested when drugs were found in his apartment. Upon arrest, he
offered to cooperate with the police and began such cooperation. Two or three weeks
later, Billingsley backed out of the cooperation agreement and left the jurisdiction
without informing the police. At the time he left the jurisdiction, no charges had been
filed against him nor was he under a judicial order to stay within the jurisdiction.
However, the police had conditioned his release on daily contact and had informed him
that if he went back on the cooperation agreement, he would be charged with various
drug offenses.

       This situation is similar to the one this court faced in United States v. Smith, 62
F.3d 1073 (8th Cir. 1995), cert. denied, 516 U.S. 1098 (1996). In Smith, the defendant
offered to cooperate with police during a post-arrest interview, “but gave a false
address, retrieved and sold fraud proceeds, and fled.” Smith, 62 F.3d at 1079. The
defendant was indicted during her absence and located three years later. We held that
those “facts contradict[ed] Smith’s contention that she merely ‘was not in the state
when the agents began looking for her.’” Id. We stated that the facts instead indicated
“that she actively impeded arrest and resolution of her case.” Id. This was sufficient
to support an enhancement for obstruction.




                                           -8-
       We held similarly in United States v. Hare, 49 F.3d 447 (8th Cir. 1995). In
Hare, this court applied the obstruction of justice enhancement to a defendant who
agreed to cooperate in an investigation and then fled to Canada.6 Hare, 49 F.3d at 453.
We held that “Hare’s ‘trip’ to Canada was a willful breach of his agreement to
cooperate in the investigation and not an instinctive pre-arrest flight” and concluded
that the defendant’s “flight to Canada at a time when he was supposedly cooperating
pursuant to a cooperation plea bargain agreement warrants an enhancement for
obstruction of justice.” Id.

       These cases are dispositive of the issue in the present case. As Billingsley
admits, his flight from the jurisdiction was not merely to avoid arrest. Although he was
not in custody, he had made an agreement to cooperate with the police and was aware
that he had to keep in contact with the police or he would be indicted. He not only
breached that agreement, but impeded the investigation and prosecution of his case.
He was not found for three months, and could still have been at large today if he was
not apprehended for a separate offense in Washington, D.C. Billingsley also had the
intent to obstruct. Showing that the defendant committed the misconduct with
knowledge of an investigation is enough to prove intent. United States v. Oppedahl,
998 F.2d 584, 586 (8th Cir. 1993). Billingsley was clearly aware of the investigation.
For all of these reasons, the two-level enhancement for obstruction of justice was
properly imposed.7


      6
        The defendant in Hare also warned a co-conspirator that his arrest was
imminent and left the country with criminally derived funds. The court held that these
factors made it “an even more compelling case in which to apply the enhancement.”
Hare, 49 F.3d at 453. It was solely the flight during cooperation, however, that was
the dispositive fact.
      7
       Billingsley relies on the Eleventh Circuit case of United States v. Alpert, 28
F.3d 1104 (11th Cir. 1994), in support of his position that his conduct did not warrant
the enhancement for obstruction of justice. In Alpert, the court held that leaving town
during the midst of plea negotiations is not obstruction of justice. Alpert, 28 F.3d at
1106-07. The Eleventh Circuit stated that “the 3C1.1 enhancement does not apply to

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                                   CONCLUSION

      For the reasons set forth above, the judgment of conviction is affirmed.

      A true copy.


             Attest:


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




persons engaged in criminal activity who learn of an investigation into that activity and
simply disappear to avoid arrest, without more.” Id. at 1107. This case is
distinguishable from the case at hand. Unlike the defendant in Alpert, when Billingsley
fled, he had already been arrested and had a cooperation agreement with the police.

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