                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  _____________

                                   No. 97-3240
                                  _____________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of Nebraska.
Darius M. Moss,                         *
                                        *
             Appellant.                 *
                                  _____________

                                Submitted: January 13, 1998
                                    Filed: March 11, 1998
                                 _____________

Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and JONES,1
      District Judge.
                          _____________

BOWMAN, Circuit Judge.

       Darius Moss was convicted by a jury of conspiracy to possess with intent to
distribute crack cocaine and of possession with intent to distribute crack cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (1994), after which the District Court2




      1
      The Honorable John B. Jones, United States District Judge for the District of
South Dakota, sitting by designation.
      2
       The Honorable William G. Cambridge, Chief United States District Judge for
the District of Nebraska.
sentenced Moss to 360 months of imprisonment. Moss appeals his conviction and his
sentence, and we affirm.

                                           I.

       Moss first argues that the District Court erred in admitting into evidence under
Federal Rule of Evidence 801(d)(2)(E) the testimony of co-conspirator Maurice Starks
that described the out-of-court declarations of another alleged co-conspirator. See
United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978) (laying out procedure for the
admission of co-conspirator statements under Federal Rule of Evidence 801(d)(2)(E)).
Starks testified during Moss's trial as to statements made by "Boot," another alleged
confederate, concerning the drug conspiracy. Moss contends that the government failed
to establish that "Boot" was a co-conspirator or that his declarations furthered the
conspiracy.

        An out-of-court statement of a co-conspirator is admissible under Federal Rule
of Evidence 801(d)(2)(E) if the trial court is convinced by a preponderance of the
evidence that the challenged statement was made during the course and in furtherance
of a conspiracy to which the declarant and the defendant were parties. See Bourjaily
v. United States, 483 U.S. 171, 175 (1987). A statement made in furtherance of a
conspiracy "must somehow advance the objectives of the conspiracy, not merely inform
the listener of the declarant's activities." United States v. DeLuna, 763 F.2d 897, 909
(8th Cir.) (quoting United States v. Snider, 720 F.2d 985, 992 (8th Cir. 1983), cert.
denied, 465 U.S. 1107 (1984)) (alteration omitted), cert. denied, 474 U.S. 980 (1985).
We review for clear error a district court's decision to admit co-conspirator testimony
under Rule 801(d)(2)(E). See United States v. Edwards, 994 F.2d 417, 421 (8th Cir.
1993), cert. denied, 510 U.S. 1048 (1994).

      Starks testified that he gave money to "Boot" on a number of occasions to
purchase crack cocaine in three and four gram amounts for resale, that "Boot" identified

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Moss as his crack cocaine source, and that Starks eventually began purchasing his crack
cocaine directly from Moss for distribution. This testimony was sufficient to establish
that "Boot" was a member of the conspiracy who arranged drug purchases for Moss and
who furthered the goals of the conspiracy by introducing potential distributors to Moss
as a source of crack cocaine. Consequently, this testimony was properly admitted by
the District Court under Rule 801(d)(2)(E). See, e.g., United States v. Guerra, 113 F.3d
809, 814 (8th Cir. 1997) ("Statements of a coconspirator identifying a fellow
coconspirator as his source of controlled substances is in furtherance of the conspiracy
and therefore admissible.").

                                            II.

       Moss next asserts that the District Court erred in calculating the quantity of drugs
attributable to him for sentencing purposes. At trial, Robert Howell testified that he
purchased crack cocaine from Moss on a specific occasion and, during the course of this
particular transaction, observed a total of nine ounces of crack cocaine. At the
sentencing hearing, Moss attacked Howell's credibility by presenting the testimony of
Roberta, Tonya, and Christine Douglas, residents of the home in which Howell testified
that Moss displayed the nine ounces of crack cocaine, each of whom testified that
Howell was never in their home and, therefore, could not have seen Moss with nine
ounces of crack cocaine in their residence. Moss contends that the District Court erred
in relying on Howell's uncorroborated testimony and in discounting the Douglases'
contradictory testimony regarding the nine ounces of crack cocaine attributed to Moss.

       We review a district court's drug quantity calculations for clear error. See United
States v. Scott, 91 F.3d 1058, 1062 (8th Cir. 1996). "Defendants who challenge the
sentencing court's determination of drug quantity face an uphill battle on appeal because
we will reverse a determination of drug quantity only if the entire record definitely and
firmly convinces us that a mistake has been made." United States v. Sales, 25 F.3d 709,
711 (8th Cir. 1994). Moreover, the credibility of witnesses is for

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the district court to determine, see United States v. Karam, 37 F.3d 1280, 1286 (8th Cir.
1994), cert. denied, 513 U.S. 1156 (1995), and its findings as to credibility are "virtually
unreviewable on appeal," United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir.
1993) (quoting United States v. Candie, 974 F.2d 61, 64 (8th Cir. 1992)).

        After a careful review of the record, we are satisfied that the District Court did
not err, much less clearly err, in attributing to Moss the nine ounces of crack cocaine
testified to by Howell. The District Court, faced with the conflicting testimony of
Howell and the Douglases, did not expressly make a credibility finding, but it is
apparent that the court chose to credit Howell's testimony regarding the nine ounces of
crack cocaine. Because "we do not 'pass upon the credibility of witnesses or the weight
to be given their testimony,'" United States v. Marshall, 92 F.3d 758, 760 (8th Cir.
1996) (quoting United States v. Witschner, 624 F.2d 840, 843 (8th Cir.), cert. denied,
449 U.S. 994 (1980)), we decline to reverse the District Court's drug quantity
determination.

        In a related argument, Moss contends that the District Court failed to follow
Federal Rule of Criminal Procedure 32(c)(1), which directs sentencing courts to make
specific findings resolving each controverted matter in a presentence report. Moss
argues that, because the District Court neglected to make an express finding reconciling
the conflicting testimony of Howell and the Douglases regarding the nine ounces of
crack cocaine attributed to Moss for sentencing purposes, his sentence cannot stand.
As noted above, it is apparent the District Court credited the testimony of Howell over
that of the Douglases in finding Moss responsible for the nine ounces of crack cocaine.
Though an express credibility finding would have been preferable, in these
circumstances the District Court's assessment of witness credibility is evident. We
therefore find no violation of Rule 32(c)(1).




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                                            III.

       Finally, Moss argues that the District Court erred in imposing a two-level
enhancement for obstruction of justice. At the sentencing hearing, two United States
Marshals testified that, during a trial recess while only the two marshals, a deputy, and
witness Howell were in the courtroom, Moss knocked on the courtroom door to get
Howell's attention and made a "cutthroat" gesture in Howell's direction by drawing his
hand across his throat. Although Howell's testimony continued after this incident, the
marshals testified that Howell was noticeably disturbed by the occurrence. Moss argues
that his conduct does not amount to "threatening, intimidating, or otherwise unlawfully
influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do
so" as required for an obstruction of justice enhancement under the Sentencing
Guidelines. U.S. Sentencing Guidelines Manual § 3C1.1, comment. (n.3(a)) (1995).

       We review a district court's factual findings relative to sentencing enhancements
for clear error, see United States v. Cabbell, 35 F.3d 1255, 1261 (8th Cir. 1994), and
conclude that the District Court did not clearly err in enhancing Moss's offense level by
two levels for obstruction of justice. The District Court interpreted Moss's "cutthroat"
gesture as an attempt to influence or intimidate Howell, and we find no fault with this
interpretation. Although Howell continued to testify after the incident, an attempt to
intimidate or threaten a witness, even if unsuccessful, is sufficient to sustain a two-level
enhancement for obstruction of justice. See U.S. Sentencing Guidelines § 3C1.1.

                                            IV.

     Moss has submitted a pro se brief and a "Pro Se Traverse" raising additional
arguments. We have considered these arguments and find them to be without merit.

       Moss's conviction and sentence are affirmed.


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A true copy.

      Attest:

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




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