                 UNITED STATES COURT OF APPEALS
                      for the Fifth Circuit

              _____________________________________

                           No. 91-7284
              _____________________________________



                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                             VERSUS

               KENNETH WILLIAMS, ROBERT KITCHENS,
                        and JACKY GREEN,

                                           Defendants-Appellants.


     ______________________________________________________

          Appeals from the United States District Court
             for the Northern District of Mississippi
     ______________________________________________________
                        (February 24, 1993)


Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.

DAVIS, Circuit Judge:

     Kenneth Williams, Robert Kitchens, and Jacky Green appeal

their convictions for aiding and abetting the possession with

intent to distribute cocaine and crack cocaine and aiding and

abetting the use of a firearm in relation to a drug trafficking

crime.   Defendants argue that the evidence is insufficient to

support their convictions, that the jury instructions were flawed,

and that newly-discovered evidence entitles them to a new trial.

We affirm their convictions on the drug charges but reverse their

convictions on the weapons offense because we conclude that the

court's jury charge on this count was defective.
                                  I.

     On September 5, 1990, police officers executed a "no knock"

search warrant on a house at 1009 Holmes Street in Greenville,

Mississippi.    In August, before obtaining the warrant, officers

placed the house under surveillance.        During the surveillance,

police   officers   observed   activity   which   they   concluded    was

consistent with drug trafficking.

     On the night of the search the officers surrounded the house

quietly.   Two officers stood at the locked back door of the house.

Officer Blackley was dispatched under the house to break out the

sewer line when the execution of the search warrant began.           Five

officers waited at the front door with a hydraulic device to get

through a steel security door and then enter the house.

     With all the officers in place, Officer Hart and Major Ballard

used the hydraulic device to open the front steel security door.

After quickly opening the metal door, Officers Hart, Morgan, and

Zelaya then attempted to break down the inner wood door.             They

opened the door only a few inches before it was slammed shut.

     At the same time, Officer Blackley began breaking open the

sewer line under the house.    As he broke the pipe, Blackley heard

a commotion upstairs and heard someone running through the house.

Then he heard the toilet flush.    He held a pan underneath the line

and caught one package of a white substance wrapped in clear

plastic bags.   He saw another similar package lodge in the line.

He pulled this package out and placed it in the pan as well.




                                   2
     Upstairs, the officers were still attempting to enter the

front door.     Someone in the house shouted, "Who is it?"                The

officers responded, "Police officers, open the door." After one to

two minutes, the opposition stopped.          The officers forced the door

open, pushed away a love seat that had been moved against the inner

door,   and   entered    the   house.       The   officers   found   Williams,

Kitchens, and Green in the front room of the house.              No one else

was in the house.       No one entered or exited through the back door

during the raid.

     As the first officer entered the room, he saw Williams move

backward and sit on a couch that was across from the door.

Kitchens was also moving backward and sat on the opposite end of

the same couch.    Green was approximately four feet away, standing

near a doorway that led to the rest of the house and to the

bathroom.

     Once the three defendants were secured, the police searched

the house.    Under a cushion on the couch where Williams was seated,

officers found a loaded .25 caliber semi-automatic pistol.               This

weapon was under the front edge of the cushion, with the handle

facing out.    The gun was situated so that a person sitting where

Williams was found could reach under the cushion and retrieve it.

     During the search the officers found several items:               a radio

scanner with the frequency set on the police band; in the bathroom,

a package of single edge safety razor blades and a box of sandwich

bags similar to those used in the package recovered from the sewer

line; small plastic bags scattered around the floor of the house;


                                        3
and in the kitchen, a bag of white substance that was later

determined to be starch, a common cutting agent.

     The officers concluded that no one permanently resided in the

house.   The officers found two stoves in the kitchen, one of which

was turned upside down.     The other stove was hooked up and had a

single pan with food remnants on it.       The refrigerator did not

function.   One bedroom had a bed, dresser, and some clothes on the

floor, but no bed linens.    The living room had a television, VCR,

and some videos.     The windows were covered with metal security

screens, and both the front and back entrances had metal security

doors.

     The two packages that were recovered from the sewer line

enclosed inner bags which in turn held smaller packages containing

individual rocks of crack cocaine and portions of cocaine powder.

The sandwich bags used to package the smaller portions were similar

to the sandwich bags found in the bathroom and scattered around the

house.

     Sergeant Elizabeth Hanners, the evidence custodian, collected

the evidence.    The wet outer packages of the crack and cocaine were

discarded, leaving the inner packages and the individually wrapped

crack and cocaine.     The crack cocaine, including the packaging,

weighed approximately 13 grams and included twenty individually

wrapped rocks.    The cocaine powder, including the six small bags

holding the cocaine, weighed approximately 7 grams.       Sergeant

Hanners field-tested the substances from the sewer line and found




                                   4
that they contained cocaine.        The starch found in the kitchen

tested negative for the presence of controlled substances.

     Hanners sealed the seized items, including the starch, in

Greenville Police Department bags and turned them over to the

custodian of the Police Department vault.                The packages were

processed and delivered to the Mississippi Crime Laboratory by

certified mail.     Pursuant to Crime Lab policy, the drugs were

assigned to lab chemist Jon Maddox for analysis.             He determined

that the substances were cocaine and crack.        The starch was tested

and found not to contain controlled substances. Maddox removed the

packaging and weighed the substances.        The cocaine powder weighed

5 grams and the crack cocaine weighed 9.5 grams.

     Maddox took a medical leave of absence approximately ten days

before trial.    During this leave Crime Lab officers investigated

complaints that Maddox had pilfered drugs from the lab's disposal

pile for his personal use.      After this investigation began, drugs

that Maddox had previously tested in preparation for his testimony

were retested.    The state notified defense counsel that the drugs

seized in the case would be retested.            Crime Lab chemist Ted

Chapman    reanalyzed   the   substances   and   again    found   that   they

contained cocaine and crack cocaine. The weight of the drugs before

Chapman's analysis, but after Maddox analyzed the drugs and removed

the packaging, was 4.2 grams of powder cocaine and 7.8 grams of

crack.     Neither Maddox nor Chapman tested the purity of the

cocaine.




                                    5
     Chapman determined that the third substance, found in the

kitchen of 1009 Holmes, was starch.        This is commonly used as a

cutting agent for cocaine and an ingredient in the cooking process

used to convert cocaine powder to crack.

     The defendants did not testify at trial.         Charles Williams,

defendant Kenneth Williams's father, testified that his other son

Danny owned the house at 1009 Holmes, but did not live there.         The

defendants also called Kendall Gibbs, who testified that he rented

the house from Danny Williams. Gibbs further testified that he had

invited the three appellants to the house for a fish fry and to

watch videos on September 5, 1990, and that he left to buy beer,

fish, and cigarettes.     He left through the back door and did not

lock the back metal security door.       He stopped at a nearby lounge,

where he was informed that police were at his house.               Gibbs

returned to the house without having purchased the supplies, and

police   arrested   him   on   an   unrelated   outstanding   misdemeanor

warrant.

     A jury convicted Williams, Kitchens, and Green of aiding and

abetting possession with intent to distribute crack cocaine (Count

I) and cocaine (Count II) and aiding and abetting the use and

carrying of a firearm during the commission of a drug trafficking

crime (Count III).    The court sentenced Williams to 144 months of

imprisonment and five years of supervised release; the court

sentenced both Kitchens and Green to 123 months of imprisonment and

five years of supervised release.




                                     6
      Defendants filed motions for a new trial based on newly-

discovered evidence about Maddox's removal from his job as a Crime

Lab chemist.       After a hearing, the district court denied those

motions and these appeals followed.               The appellants raise three

issues on appeal:        1) the evidence was insufficient to support the

verdict; 2) the court's jury instructions on the weapon offense was

inadequate; 3) the court erred in denying their motion for new

trial.    We consider these arguments below.

                                      II.

                                      A.

      Defendants first argue that the evidence is insufficient to

support their convictions on all three counts.                  We consider first

their attack on the drug offenses, aiding and abetting each other

in possessing with intent to distribute crack cocaine (Count I) and

cocaine (Count II).

      Possession with intent to distribute cocaine and crack cocaine

requires proof that each defendant (l) knowingly (2) possessed

cocaine and crack (3) with the intent to distribute it.                  21 U.S.C.

§ 841(a)(1); United States v. Gallo, 927 F.2d 815, 821-22 (5th Cir.

1991).    To be guilty of aiding and abetting possession of drugs

with intent to distribute, each defendant must have aided and

abetted   both     the   possession   of    the    drug    and    the   intent   to

distribute it.      United States v. Lindell, 881 F.2d 1313, 1322 (5th

Cir. 1989), cert. denied, 493 U.S. 1087 (1990), and cert. denied,

496   U.S.   926    (1990).     Defendants        need    not    have   actual   or

constructive possession of the drugs to be guilty of aiding and


                                       7
abetting possession with intent to distribute.                   A conviction

"merely requires that [defendants'] association and participation

with the venture were in a way calculated to bring about that

venture's success."       United States v. Salazar, 958 F.2d 1285, 1292

(5th Cir. 1992), cert. denied, 121 L. Ed. 2d 129 (1992).

     The "defendant must share in the intent to commit the offense

as well as participate in some manner to assist its commission."

United States v. Fischel, 686 F.2d 1082, 1087 (5th Cir. 1982).               A

defendant's mere presence at the scene of the crime does not

constitute aiding and abetting; however, the jury may consider

presence and association as factors in determining whether the

defendant is guilty of aiding and abetting.           Lindell, 881 F.2d at

1323.

     We review the evidence in the light most favorable to the

verdict.   Glasser v. United States, 315 U.S. 60 (1942).            We affirm

if a rational trier of fact could have found that the evidence

establishes   the   essential     elements   of    the   offense    beyond   a

reasonable doubt.         United States v. Molinar-Apodaca, 889 F.2d.

1417, 1423 (5th Cir. 1989).

     Defendants argue that no reasonable jury could have convicted

them of    aiding   and    abetting   possession    of   drugs   because   the

evidence at trial established only that the three were present in

a friend's house where drugs were found.

     Our review of the record persuades us that the evidence amply

supports a finding that all three defendants aided and abetted each

other in the possession of the cocaine.            A reasonable jury could


                                      8
have concluded that blocking the officers' entry until the cocaine

was disposed of required the concerted effort of all three men.

The jury could have inferred that the resistance of two men

(Williams and Kitchens) against the door was required to prevent

the three police officers from entering.              This fact, combined with

evidence of their backward motion from the door, permitted the jury

to infer that Williams and Kitchens were holding the love seat

against the door, while Green flushed the drugs down the toilet.

Evidence of the defendants' concerted effort to dispose of the

cocaine supports a reasonable inference that all three men both

associated and participated in possessing the drugs.

     Our   inquiry   does   not   end       with   possession;   we    must   also

consider whether the evidence supports a reasonable inference that

the defendants aided and abetted each other in distributing the

cocaine or intending to do so.

     The defendants argue first that the evidence may indicate an

intent by them to consume drugs but does not reveal any intent by

them to distribute drugs.         We disagree.           The jury could have

determined that the three defendants were unlikely to consume

twenty-six   individual     doses       of    crack     and   powder    cocaine.

Significantly, no evidence was presented at trial that pipes for

smoking the crack were found in the house or on the defendants.                No

hypodermic needles were found. Thus, a reasonable factfinder could

have inferred that the defendants were not in the house to consume

the drugs.




                                        9
     We are persuaded that a reasonable jury could infer that 1009

Holmes was a "crack house," an established outlet for the sale of

crack cocaine, and that Williams, Kitchens, and Green were in

charge of the business when they were arrested.             Police officers

testified at trial about the activity at the house in August of

1990, days or weeks before the raid, that led them to believe it

was a crack house.    Persons visiting the house stopped in front of

the house and left their car engines running.          Someone inside the

house would check the area before allowing the visitors to enter.

They stayed inside briefly, and before they left someone surveyed

the area to make sure the area was clear.       The jury was entitled to

believe Officer Hart's testimony that this activity was consistent

with drug trafficking.

     Viewed most favorably to the verdict, the evidence supports a

reasonable inference that the house was not equipped as a full-time

residence. There were no bed linens or personal effects; there was

no food; the refrigerator did not work.             There were only a few

items of furniture.     The house was secured with metal doors and

barred windows. Based on the surveillance, the drug paraphernalia,

and the lack of evidence of full-time habitation, the jury was

entitled to infer that this was a crack house.          See United States

v. Bennett, 956 F.2d 1476, 1482 (8th Cir. 1992).

     A   reasonable   jury   also   could   infer    that   the   defendants

willfully participated in the cocaine distribution enterprise. The

three defendants obviously had authority to dispose of the drugs

and to prevent access to the house.         "Evidence that an individual


                                    10
is 'solely entrusted with a large portion of the proceeds of the

drug trafficking enterprise establishes [her] familiarity with, or

high level participation in, that enterprise.'"    Salazar, 958 F.2d

at 1295 (alteration in original) (quoting United States v. Gallo,

927 F.2d 815, 821 (5th Cir. 1991)).

      The paraphernalia found in plain view in the house suggested

that cocaine was being distributed.      Of course, sandwich bags,

single-edge razor blades, starch, and a police scanner do have non-

drug-related uses. But the jury was entitled to conclude that none

of those other uses suggested by defendants--such as wrapping

sandwiches or fish, scraping paint, or ironing shirts--likely took

place at 1009 Holmes.

      In sum, a reasonable jury could have concluded that 1009

Holmes was a cocaine distribution center under the command and

control of Williams, Kitchens, and Green.    A jury could infer that

the three men necessarily acted in concert to attempt to distribute

the drugs.   The evidence supports the convictions on Counts I and

II.

                                  B.

      Appellants argue next that their convictions for aiding and

abetting the use of a firearm in relation to a drug offense should

be reversed for two reasons.     They contend first that the court

failed to instruct the jury properly on the requisite intent for

this offense and second that the evidence is insufficient to

support the verdict.    We first consider whether the court properly

instructed the jury on this count.


                                  11
     To    convict   Williams,   Kitchens,   and   Green   of   aiding   and

abetting the use of a firearm in relation to a drug trafficking

crime, the jury had to find that the three men (1) during and in

relation to a drug crime (2) aided and abetted the use of a

firearm.    18 U.S.C. § 924(c)(1); 18 U.S.C. § 2; United States v.

Onick, 889 F.2d 1425, 1431 (5th Cir. 1989).          "Possessing illegal

drugs with the intent to distribute constitutes a drug trafficking

crime for the purpose of" § 924(c).           Onick, 889 F.2d at 1431

(citing United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir.

1988)).    A defendant need not use or brandish the weapon to be

guilty under § 924(c), as long as the Government shows that the

weapon was available to facilitate the crime.          United States v.

Molinar-Apodaca, 889 F.2d 1417, 1424 (5th Cir. 1989).

         Initially, we must determine the appropriate standard of

review for the instructions on the firearms count.         If a defendant

fails to object to an instruction, this court reviews only for

plain error.    Fed. R. Crim. P. 52(b); United States v. Frady, 456

U.S. 152, 163 (1982).      Counsel objected to an earlier version of

instruction G-111 for lack of a statement about the requisite



     1
            In order to prove that a defendant used or
            carried a firearm during and in relation to a
            drug trafficking crime, the Government does
            not have to prove that the defendant had
            actual possession of the weapon or that he
            used it in any affirmative manner. It does
            require   evidence   that  the   firearm   was
            available to provide protection to the
            defendant in connection with his engagement in
            drug trafficking.


                                    12
knowledge by the defendants of the presence of the weapon.2                  After

the court amended the charge,3 stating "[t]hat will satisf[]y

knowledge," counsel made no further objection.

     Ordinarily      we   do     not    require   repeated   objections   to   an

instruction.       Osborne v. Ohio, 495 U.S. 103, 124 (1990).                  In

determining the sufficiency of objections we apply "the general

principle that an objection which is ample and timely to bring the

alleged . . . error to the attention of the trial court and enable

it to take appropriate corrective action is sufficient to . . .

preserve the claim for review."                Id. at 125 (quoting Douglas v.

Alabama,     380   U.S.   415,    422    (1965)).     We   are   persuaded   that

counsel's objection was adequate to alert the court of her position

that the defendant's knowledge of the presence of the weapon was an

essential element of the offense. We therefore review the adequacy

of the charge de novo.

     Appellants' argument focuses on the state of mind required to

convict them of this offense.           They contend that the court's charge

completely failed to instruct the jury on this element. Generally,


     2
             Counsel stated:

             I do have an objection. I think when it talks
             about it being available, that we need to
             include   within   this  a   statement   about
             knowledge, that in order for it to be
             available, the defendant had to have knowledge
             of its presence.

         3
          Amended Instruction G-11 required "evidence that the
firearm was made available by at least one of the defendants to
provide protection to the defendant in connection with his
engagement in drug trafficking." (emphasis ours).

                                          13
failure to instruct the jury on every essential element of the

offense is error.      United States v. Winship, 724 F.2d 1116, 1124

(5th Cir. 1984).

     The defendants were charged with aiding and abetting the use

of a firearm.     An aider and abettor must share in the criminal

intent of the principal.       See United States v. Triplett, 922 F.2d

1174, 1178     (5th   Cir.),   cert.   denied,   114    L.Ed.2d   486   (1991)

(quoting United States v. Ortiz-Loya, 777 F.2d 973, 980 (5th Cir.

1985)).     To support a § 924(c) conviction, the government must

prove that a defendant knowingly used a firearm.           United States v.

Wilson, 884 F.2d 174, 178-79 (5th Cir. 1989) (citing United States

v. Nelson, 733 F.2d 364, 370-71 (5th Cir.), cert. denied, 469 U.S.

937 (1984)).    To convict, the jury was required to find, therefore,

that each defendant as an aider and abettor knew that the gun was

at least available to one of the defendants.            See Nelson, 733 F.2d

at 371; see also United States v. Hamblin, 911 F.2d 551, 557-58

(11th Cir. 1990), cert. denied, 114 L.Ed.2d 482 (1991) (government

has burden of proving that aider and abettor shared criminal intent

of codefendant with respect to § 924(c) firearms charge).

Unfortunately, the court's instruction does not address the state

of mind element of the offense, except to suggest that if one of

the defendants used the weapon (and therefore knew of it) then all

defendants were guilty of the offense.4                An instruction under

     4
          Instruction G-9 reads as follows:

            Two elements are required to be proved beyond a
            reasonable doubt in order to establish the offense
            charged in Count Three of the indictment, as follows:

                                       14
Pinkerton v. United States, 66 S.Ct. 1180 (1946), may have been

appropriate, at least if the defendants had been charged with some

conspiracy.     See United States v. Raborn, 872 F.2d 589, 596 (5th

Cir.   1989).    But   as   no   conspiracy   whatever   was   charged   or

instructed on, the instruction is deficient for the charged offense

of aiding and abetting the use of a firearm because knowledge of

the use of the firearm is an essential element of the offense.

Also, we cannot say that this erroneous instruction was harmless--

all of the defendants argued that they did not know the weapon was

in the room and the government's proof on this point was meager.

Thus we find it conceivable if not likely that the jury would have



           First. That while the defendants were engaged
           in aiding and abetting each other to possess
           cocaine and cocaine base with intent to
           distribute the same, either one or all three
           of them carried or used a firearm; and

           Second. That either one or all three of them
           did so during and in relation to a drug
           trafficking crime.

           The term "drug trafficking crime" means any
           felony   punishable  under   the  Controlled
           Substances Act, and includes the offense
           charged in Count One of the Indictment, that
           is, aid and abet to possess coke with intent
           to distribute the same.

           If one of the defendants carried or used a
           firearm during and in relation to a drug
           trafficking   crime  at   a  time   when  all
           defendants were mutually engaged int he drug
           crimes alleged, then all defendants are
           equally guilty of using or carrying a firearm
           during and in relation to a drug trafficking
           crime.




                                    15
acquitted    the    defendants,      or    some       of   them,    had   the   jurors

understood that knowledge of the presence of the weapon was an

essential element of the offense.

      Because of double jeopardy considerations, we next consider

appellants' sufficiency arguments on this count.

      They contend primarily that the evidence failed to establish

that they knew the weapon was in the room.5                In determining whether

the government established that the defendants formed the necessary

intent to commit the charged offense, the question narrows to

whether the record supports an inference that Williams, Green, and

Kitchens knew that one of them had a firearm available for use.

See Nelson, 733 F.2d at 371.

      The evidence is sufficient to uphold Williams's conviction on

Count III.    Williams was sitting on the sofa cushion under which

the .25 caliber pistol was found.                 The jury could infer that

Williams knew the gun was under the cushion on which he was seated.

The   gun   was    situated   with   the       butt    facing      out,   was   readily

accessible, and was loaded.          In United States v. Morris, 977 F.2d

617 (D.C. Cir. 1992), the court found that guns concealed under the

cushions of a couch were "used" in relation to a drug trafficking

offense because the loaded guns were readily accessible and were

near the door, through which an intruder might be expected to

enter. Thus, a reasonable jury could infer that Williams willfully



       5
         We have already rejected appellants' argument that the
evidence did not establish that they were engaged in drug
trafficking at 1009 Holmes.

                                          16
associated and participated in the use of the gun to protect the

drug operation.

     The validity of Green's and Kitchens's convictions on this

count depends on whether the record supports an inference that they

knew the gun was available to Williams.           Our review of the record

reveals no evidence that Green or Kitchens ever saw the gun or knew

of its presence.     The record does not reveal that the gun which was

under the couch cushion was visible to Green or Kitchens.                   The

government    established     no   other    connection   between    Green   and

Kitchens and the weapon.       Because the evidence does not support an

inference that Green and Kitchens knew the gun was available to

Williams, the evidence is insufficient to support Green's and

Kitchens's convictions on this count.

                                     III.

     The defendants argue finally that they are entitled to a new

trial based on the evidence they discovered after the trial that

the Mississippi Crime Lab chemist, Jon Maddox, was caught pilfering

drugs from the lab.    Defendants argue that if they had been allowed

to present this evidence the jury could have concluded that Maddox

tampered with the seized substances.            Before denying appellants'

motions for    new   trial,    the   district    court   held   a   post-trial

evidentiary hearing, at which Maddox and others testified.

       Defendants argue that evidence of Maddox's malfeasance

entitles them to a new trial on three grounds:           (1) the prosecution

withheld the evidence of Maddox's misconduct in violation of Brady

v. Maryland, 373 U.S. 83 (1963); (2) the newly-discovered evidence


                                      17
entitles them to a new trial under United States v. Nixon, 881 F.2d

1305 (5th Cir. 1989); and (3) Maddox's possible tampering with the

drugs is a break in the chain of custody of the evidence.                          We

consider each of these arguments in turn.

     Brady      v.   Maryland    holds     "that   the     suppression       by    the

prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt

or to punishment."      373 U.S. at 87.        A Brady violation entitles a

defendant to a new trial "only when the court determines that there

is a reasonable probability that the trial result would have been

different."     United States v. Nixon, 881 F.2d 1305, 1308 (5th Cir.

1989).

     Under United States v. Nixon, newly discovered evidence may

justify a new trial if: (1) the evidence was discovered after

trial; (2) the failure to discover the evidence was not due to

defendants' lack of diligence; (3) the evidence is not merely

cumulative or impeaching; (4) the evidence is material; and (5) a

new trial probably would produce a new result.               Nixon, 881 F.2d at

1311.     We review the denial of a motion for a new trial based on

newly discovered evidence for abuse of discretion.                  United States

v. Alvarado, 898 F.2d 987, 994 (5th Cir. 1990).

     We    conclude    that     it   is   extremely      unlikely    that    a    jury

presented with evidence of Maddox's misconduct would find that the

substance the defendants flushed down the toilet was not cocaine or

crack.    The circumstances surrounding the disposition of the drugs

reveal    the   defendants'      belief    that    the    drugs     were    illicit.


                                          18
Sergeant Hanners's field test identified the drugs as cocaine.                       No

evidence was discovered that Maddox pilfered or used cocaine in any

form.    He was addicted to prescription drugs such as Dilaudid,

Demerol, Tylox,        and   Percodan.          No   evidence    suggests     that   he

pilfered any other drugs from the state lab.                      At trial another

chemist, Ted Chapman, testified that his analysis showed that the

substances were cocaine and crack.                   The district court did not

abuse its discretion in rejecting appellants' motion for new trial

predicated on Brady and Nixon.

       Finally,   we    consider     appellants'           argument   that    Maddox's

potential tampering with the evidence broke the chain of custody of

the cocaine.      Our review of the record gives us no reason to

believe that Maddox tampered with the evidence in this case. Thus,

the    district   court      did   not    abuse      its    discretion   in   denying

appellants' motion for new trial on grounds that the government's

chain of custody predicate for the drugs was flawed.                     See United

States v. Whitley, 905 F.2d 163 (7th Cir. 1990).

                                          IV.

       For the reasons stated above, we affirm the defendants'

convictions on Counts I and II.                Because the court's instruction

was deficient on Count III, however, we reverse the defendants'

convictions on that count.               The government may, however, if it

elects to do so within a reasonable time, retry Williams on Count

III.    Because the evidence was insufficient to convict Green and

Kitchens on this count, double jeopardy considerations preclude the

government from retrying these defendants on Count III.                         United


                                          19
States v. Miller, 952 F.2d 866, 870-71 (5th Cir.), cert. denied,

112 S.Ct. 3029 (1992).   Accordingly, we affirm in part, reverse in

part and remand to the district court for resentencing and further

proceedings consistent with this opinion.

     AFFIRMED in part; REVERSED in part; and REMANDED.




                                 20
