                          Revised July 21, 1999

                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT
                        _____________________

                               No. 98-30484
                          _____________________

                       UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee/Cross-Appellant,

                                   versus

                          PAUL RICHARD GREEN,

                              Defendant-Appellant/Cross-Appellee.
_________________________________________________________________

          Appeals from the United States District Court
              for the Western District of Louisiana
_________________________________________________________________
                          June 30, 1999

Before JONES, DUHÉ, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

      Paul   Richard   Green   having   been    convicted   for,    while   a

policeman, harboring a fugitive and a concomitant drug trafficking

conspiracy    involving   that     fugitive,    the   principal    issue    is

presented by the Government’s cross-appeal: error vel non in the

sentencing court concluding that the jury’s general guilty verdict

for   the    conspiracy    count    (charging     cocaine   and     preludes

distribution) was “ambiguous” ipso facto and that, therefore,

Green’s sentence could not exceed the five-year statutory maximum

for a conspiracy involving only preludes (statutory mandatory

minimum for the cocaine charge is ten years).           Green contests the
sufficiency of the evidence and the admission of co-conspirator

statements and rebuttal reputation testimony.       We AFFIRM the

convictions, but VACATE the sentence and REMAND for resentencing.

                                I.

     Green, a Lafayette, Louisiana, police officer from 1973 until

arrested in 1996 (he had attained the rank of captain), was charged

with conspiracy to distribute cocaine and phenmetrazine tablets

(preludes), in violation of 21 U.S.C. § 846 (Count I), and with

harboring a fugitive, in violation of 18 U.S.C. § 1071 (Count II).

A jury was unable to reach a verdict at Green’s first trial in

1997.

     But, at his second trial that year, a jury found him guilty on

both counts. The Government presented evidence that Colomb, a drug

dealer, paid Green monthly for information to help Colomb and

others in his organization avoid arrest, including after Colomb

became a fugitive in 1988. Colomb testified that he avoided arrest

from 1981 until 1995 through information Green provided.

     Claiming that, instead, Colomb was a confidential informant,

Green denied taking money from him. Green admitted, however, that,

while Colomb was a fugitive, they spoke by telephone, but claimed

that he was attempting to persuade Colomb to surrender; denied

assisting Colomb in avoiding apprehension; and stated that he last

spoke with Colomb in 1991, five years before Green was arrested.




                              - 2 -
     Post-verdict, the court denied judgment as a matter of law or

a new trial.        Green was sentenced inter alia, to five years

imprisonment on each of the two counts, to run consecutively.

                                      II.

     Green     contests     the    sufficiency      of   evidence     for   his

convictions, and the admission of a co-conspirator’s statements and

rebuttal testimony regarding his reputation for trustworthiness.

The Government challenges the court imposing, on the basis that the

conspiracy verdict was “ambiguous”, only a five-year sentence

(statutory maximum for conspiracy based solely on preludes) on that

count.    (Alternatively, it contends that, even if the verdict was

ambiguous,   drug    type   and    quantity   are    not   elements    of   the

conspiracy offense, but instead are sentencing factors. Concluding

that the verdict is not ambiguous, we need not address this

contention.)

                                      A.

     In reviewing Green’s properly-preserved sufficiency of the

evidence challenge, we must determine whether “a rational trier of

fact could have found that the evidence, viewed in the light most

favorable to the government, established guilt beyond a reasonable

doubt”.    United States v. Truesdale, 152 F.3d 443, 446 (5th Cir.

1998); FED. R. CRIM. P. 29.       Along this line, authority hardly need

be cited for the rule that “[i]t is the sole province of the jury,

and not within the power of this Court, to weigh conflicting


                                     - 3 -
evidence and evaluate the credibility of witnesses”. United States

v. Millsaps, 157 F.3d 989, 994 (5th Cir. 1998) (internal quotation

marks and citation omitted).         In the light of the conflicting

testimony,    especially   by    Green     and   Colomb,   and   the   proper

credibility choices for the jury, this was indeed a classic case

for a jury.      Green fails to hurdle these almost insurmountable

obstacles.

                                    1.

     The harboring statute provides, in pertinent part:

          Whoever harbors or conceals any person for
          whose arrest a warrant or process has been
          issued under the provisions of any law of the
          United States, so as to prevent his discovery
          and arrest, after notice or knowledge of the
          fact that a warrant or process has been issued
          for the apprehension of such person, shall be
          fined....

18 U.S.C. § 1071.    “Section 1071 requires some affirmative action

to support a conviction. Failure to disclose a fugitive’s location

and giving financial assistance do not constitute harboring, but

any physical act of providing assistance ... to aid the prisoner in

avoiding detection and apprehension will make out a violation of

section 1071”.    United States v. Stacey, 896 F.2d 75, 77 (5th Cir.

1990) (internal quotation marks and citation omitted).

     Conviction under § 1071 requires proof beyond a reasonable

doubt that the defendant:       (1) knew that a federal arrest warrant

had been issued; (2) engaged in physical acts that aided the

fugitive in avoiding detection and apprehension; and (3) intended

                                   - 4 -
to prevent the fugitive’s discovery.                 United States v. Zerba, 21

F.3d 250, 252 (8th Cir. 1994). Green maintains that the Government

failed to prove either his knowledge of Colomb’s federal arrest

warrant    or,    after     learning   of      its    existence,    his    providing

assistance to him.

                                          a.

     Regarding his November 1991 federal warrant for unlawful

flight to avoid prosecution, Colomb testified that, in late 1991,

he received a copy of a confidential Lafayette Police Department

report from his brother, Harold Colomb.                    Another brother, Paul

Colomb, a Lafayette attorney, testified that the report, in a

sealed    envelope,       was   delivered      by    an   unknown   person   to    his

residence; and that he took the report to Harold Colomb, who lived

in Texas, and might have contact with Colomb.                  The report stated,

inter alia, that Colomb’s federal warrant was in effect as of 18

November 1991.      Colomb testified that he discussed the report with

Green.

     Green admitted knowing that Colomb was a fugitive from a 1988

state drug racketeering indictment, but asserts that, nevertheless,

he was not aware until trial of the federal warrant. In this

regard,   he     denied    seeing   the     confidential      report      before   the

Government revealed it then. But, of course, the jury was entitled

to discredit Green’s testimony and to find instead that he was




                                       - 5 -
aware of the report’s contents, including concerning the federal

warrant.

     And, there was other circumstantial evidence from which the

jury could have concluded that Green was aware of the warrant.      An

FBI Agent testified that police agencies are advised of federal

fugitive warrants, and that they are put into a computer database

to which all police agencies, including the Lafayette Police

Department, have access.

                                 b.

     Concerning Green acting after November 1991 to aid Colomb in

avoiding detection   and   apprehension,   the   Government   presented

evidence that: Colomb applied for employment in Houston, Texas, on

23 May 1994, using the name “Ronald Prince” (Colomb’s deceased

cousin); Colomb asked Green to ensure that this alias did not have

any outstanding warrants; on 26 May, three days after Colomb

applied for employment, a Lafayette Police Department computer was

used to inquire about Ronald Prince, revealing a valid Louisiana

driver’s license and no record of traffic violations; telephone

toll records reflected that a telephone call was made that same day

from Green’s residence to a pay telephone in Houston; Colomb was

living in the Houston area; and Colomb was hired on 6 June, 11 days

after the computer check and telephone call.

     In addition, Colomb testified that Green provided him with

information that enabled him to avoid arrest during the entire time



                                - 6 -
he was a fugitive; and that Green brought money to him on many

occasions during that period.

                                   2.

     A 21 U.S.C. § 846 drug trafficking conspiracy conviction

requires proof beyond a reasonable doubt that:      (1) there was an

agreement between two or more persons to violate the narcotics

laws; (2) the defendant knew of the conspiracy and intended to join

it; and (3) he voluntarily participated in it.    E.g., United States

v. Medina, 161 F.3d 867, 872 (5th Cir. 1998), cert. denied, ___

U.S. ___, 119 S. Ct. 1344 (1999).

     Green’s sufficiency challenge for the conspiracy is premised

almost entirely on attacking Colomb’s credibility.         But, again,

credibility choices are for the jury.

     Colomb testified that: in January 1981, while at the Lafayette

Airport to pick up preludes, he was arrested by Green and three

other officers; from inside Colomb’s vehicle, Green removed a small

bag containing $5,000 and concealed it under his arm; when he asked

Green’s plans for the bag, Green responded “don’t worry about it”;

no one was standing next to Colomb when he made the inquiry; the

next day, he went to Green’s home, and Green gave him the $5,000;

Colomb gave $500 of it to Green; and, thereafter, he paid Green

monthly   for   protection   and    information   needed    to   avoid

apprehension.




                                - 7 -
     Green contends that, as a matter of law, Colomb’s testimony

regarding the 1981 arrest is incredible, claiming that it is

factually impossible for him to have searched Colomb’s car, seized

the money, and then discussed it with Colomb, who was under arrest

and handcuffed, without alerting other arresting officers.    And,

based on Colomb’s claimed lack of credibility on that point and

motivation to lie, Green maintains that Colomb’s testimony is

insufficient to support the conspiracy verdict.

     “Testimony is incredible as a matter of law only if it relates

to facts that the witness could not possibly have observed or to

events which could not have occurred under the laws of nature.”

United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994), cert.

denied, 514 U.S. 1097 (1995); see also United States v. Casteneda,

951 F.2d 44, 48 (5th Cir. 1992) (internal quotation marks and

citation omitted) (testimony is incredible as a matter of law only

when it “is so unbelievable on its face that it defies physical

laws”).   Green relies on the testimony of other participating

officers in Colomb’s 1981 arrest.   But, none testified that Green

could not have removed a bag from Colomb’s vehicle; instead, they

testified that they did not see him do so and did not clearly

recollect the details of the 16-year-old arrest.   Needless to say,

Colomb’s testimony is far from being incredible.

     Moreover, notwithstanding Colomb’s motivation to lie, the

Government presented substantial evidence corroborating much of his


                              - 8 -
testimony, including:         the date of his 1981 arrest; while a

fugitive,   he   telephoned    Green;    while   a   fugitive   in   1991,   he

received the confidential report; Alton Miller (discussed infra)

worked for him as a drug courier; Green met with Colomb in Addison,

Texas, in 1990; and, as discussed, Colomb used the alias “Ronald

Prince” while a fugitive, in conjunction with the computer check at

the Lafayette Police Department.

                                    B.

     For two types of evidentiary rulings, Green seeks a new trial.

Such rulings are reviewed for abuse of discretion.              E.g., United

States v. Asibor, 109 F.3d 1023, 1032 (5th Cir.), cert. denied, ___

U.S. ___, 118 S. Ct. 254 (1997); see also United States v. Flores,

63 F.3d 1342, 1377 (5th Cir. 1995), cert. denied, 519 U.S. 825,

1022 (1996).     “If an abuse of discretion is found, the harmless

error doctrine is applied”; therefore, “we will affirm evidentiary

rulings unless they affect a substantial right of the complaining

party”.   Asibor, 109 F.3d at 1032; FED. R. EVID. 103.

                                    1.

     Green claims reversible error in the admission of testimony by

two women linked to Alton Miller, Colomb’s drug courier, concerning

Miller’s statements about the protection Green provided him and the

Colomb drug organization.       Green claims that the statements were

not made in furtherance of the conspiracy and therefore, pursuant

to FED. R. EVID. 801(d)(2)(E), were not admissible.


                                   - 9 -
      Rule 801(d)(2)(E) provides, in pertinent part:            “A statement

is not hearsay if ... offered against a party and is ... by a

coconspirator of a party during the course and in furtherance of

the   conspiracy”.       Accordingly,      “[b]efore    admitting     a   co-

conspirator’s statement under this Rule, the court must determine

by a preponderance of the evidence (1) that there was a conspiracy

involving the declarant and the non-offering party, and (2) that

the statement was made ‘during the course and in furtherance of the

conspiracy’”.     United States v. Burton, 126 F.3d 666, 671 (5th Cir.

1997).   Ruling that a statement was made in furtherance of a

conspiracy   is   a   factual   finding,   reversible    only    if   clearly

erroneous.   United States v. Stephens, 964 F.2d 424, 434 (5th Cir.

1992).

      Cassandra Bradley testified that she was sexually involved

with Miller in 1988-89 and that:        on one occasion, she had helped

him count large sums of money; on another, she had seen him with

four or five kilograms of cocaine; on other occasions, he had

cocaine while with her; he told her he had taken over Colomb’s

cocaine business; in 1989, Miller told her he had just had dinner

with Green, Green had given him the “green light” to conduct that

business, and Green had told him he (Miller) was protected; he had

paid Green $20,000-$30,000 that year for protection; and on one

occasion, when a police car pulled up next to Bradley and Miller’s

vehicle at a traffic light, Miller was initially concerned, but his


                                  - 10 -
concern was alleviated when he recognized the officer as someone

who worked for Green, because Miller said he was protected.

     When asked, outside the presence of the jury, why Miller had

told her about being protected by Green, Bradley testified that

Miller had told her that he had not responded to her pages because

he was having dinner with Green.          She testified further that she

was not worried about being arrested because she was not part of

Miller’s drug-dealing business.

     Cheryl Wiltz testified that:         she was sexually involved with

Miller from 1974-1989, including having two children by him; and

she accompanied Miller to Miami once to pick up cocaine for Colomb

and was with him on another occasion to purchase a very substantial

wedding    gift   for    Green’s   child,    so     Miller   could      show   his

appreciation for what Green had done for him. Outside the presence

of the jury, Wiltz testified that Miller told her about showing his

appreciation to Green because she and Miller were very close, but

she did not believe that he expected her to do anything with the

information.

     This testimony by Bradley and Wiltz is claimed inadmissible on

the basis that, instead of the statements being made in furtherance

of   the   conspiracy,     they    were     in    furtherance      of     Miller’s

relationships     with    the   women;    and     the   evidence     is    claimed

prejudicial on the basis that, inter alia, Green was forced to call

convicted drug dealer Miller to deny making the statements.



                                   - 11 -
       “The requirement that a co-conspirator’s statement be ‘in

furtherance of’ the conspiracy ‘is not to be construed too strictly

lest the purpose of the exception be defeated’”.          Burton, 126 F.3d

at 674 (quoting United States v. Broussard, 80 F.3d 1025, 1039 (5th

Cir.), cert. denied, 519 U.S. 906 (1996)).        Our court has “shunned

an overly literal interpretation of this [phrase]”; but on the

other hand, “[m]ere idle conversation ... is not considered in

furtherance of a conspiracy”.       Id. (internal quotation marks and

citation omitted).

       Along this line, the following have been found to be “in

furtherance of” a conspiracy:

           [A] statement that identifies the role of one
           co-conspirator to another (United States v.
           Magee, 821 F.2d 234, 244 (5th Cir. 1987));
           statements conveying information that could
           have been intended to affect future dealings
           between the parties (United States v. Patton,
           594 F.2d 444, 447 (5th Cir. 1979)); puffing,
           boasts, and other conversation when used by
           the declarant to obtain the confidence of one
           involved in the conspiracy ([United States v.]
           Miller, 664 F.2d [94,] 98 [(5th Cir. 1981)]);
           statements which are puffing or boasts, but
           which are used to obtain the confidence of the
           person toward whom the statement is directed
           (United States v. Johnson, 872 F.2d 612, 623
           (5th Cir. 1989)).

Burton, 126 F.3d at 675 (internal quotation marks, brackets, and

ellipses omitted).    See also United States v. Flores, 63 F.3d at

1377   (statements   made   to   inform    conspirators   of   progress   of




                                  - 12 -
conspiracy or made “in order to encourage loyalty and obedience

among the conspirators” are in furtherance of the conspiracy).

     The   court   did   not   clearly   err    in   finding   that   Miller’s

statements furthered the conspiracy.           He reassured the women (they

accompanied him when he had drugs and drug money) that, through his

involvement with Green, they were protected.             Accordingly, there

was no abuse of discretion.

                                    2.

     Green maintains that rebuttal testimony about his reputation

for trustworthiness was inadmissible, founded on his claim that he

did not present evidence permitting such rebuttal.               See FED. R.

EVID. 404(a)(1) (“[e]vidence of a pertinent trait of character

offered by an accused, or by the prosecution to rebut the same”, is

admissible).

     Green called as witnesses several Lafayette police officers he

had supervised in the narcotics unit.          They testified that:     he was

their mentor; he had a unique, neighborhood-oriented policing

style; he never instructed them to not enforce the law regarding

Colomb or members of his organization; and they had no information

to indicate that he was anything other than a “good cop” and had no

knowledge of his having taken money from, or providing protection

to, Colomb.

     In rebuttal, the Government called retired Lafayette Police

Officer Dartez, who testified that: Green’s reputation as a police



                                  - 13 -
officer was not trustworthy; and he knew of specific corroborating

instances.   But, the court did not allow him to describe them.

     Green   contends   that   he    did   not   present     evidence   of   his

reputation   for   being   honest,    trustworthy,      or   law-abiding;    he

claims, instead, to have presented only factual testimony regarding

observations of his conduct as a policeman, not knowledge of his

reputation in the police community.           Green contends that he was

prejudiced by the admission of such damaging evidence, because,

inter alia, he had no subsequent opportunity to present his own

reputation evidence.

     In the light of Green’s witnesses’ testimony that he was their

mentor, a “good cop”, and that they looked up to him for his style

of policing, the court did not abuse its discretion in ruling that

the Government was entitled to rebut that testimony with evidence

that others in the law enforcement community disagreed.

                                      C.

     The indictment charged conspiracy to distribute cocaine and

phenmetrazine (preludes), in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), and (D). Pursuant to subpart (A) of § 841(b)(1), ten

years   is   the   mandatory   minimum       sentence      for   the    charged

distribution of over 50 kilograms of cocaine; but, pursuant to

subpart (D), the maximum sentence for the charged distribution of

over 50,000 phenmetrazine tablets is far less — five years.




                                    - 14 -
     The jury returned a general verdict, finding Green guilty

“[o]n Count I” (conspiracy) and “[o]n Count II” (harboring).           For

sentencing, the court concluded that the conspiracy verdict was

ambiguous, because the jury was not asked, and thus did not

specify,   whether   Green   conspired   to   distribute   preludes,    or

cocaine, or both.    Accordingly, over the Government’s objection,

and although the sentencing court found that, in addition to the

preludes, at least 50 kilograms of cocaine were also involved in

the conspiracy, it imposed a five-year sentence, the statutory

maximum for the preludes.      In so doing, as discussed below, it

relied on United States v. Bounds, 985 F.2d 188 (5th Cir.) (if

general jury verdict for conspiracy to manufacture amphetamine and

phenylacetone is ambiguous, defendant must be sentenced based on

drug which produces lowest Guidelines offense level), cert. denied,

510 U.S. 845 (1993); United States v. Cooper, 966 F.2d 936, 940-41

(5th Cir.) (recognizing general rule that, for multiple-object

conspiracy with general verdict (“the jury failed to specify the

violation found”), sentence     cannot exceed statutory maximum for

offense with least severe penalty), cert. denied, 506 U.S. 980

(1992); and United States v. Fisher, 22 F.3d 574, 576-77 (5th Cir.)

(same), cert. denied, 513 U.S. 1008 (1994).

     Shortly before sentencing, however, the Supreme Court decided

Edwards v. United States, 523 U.S. 511, ___, 118 S. Ct. 1475, 1477

(1998), which concerned a charged conspiracy to distribute cocaine

                                - 15 -
and crack. The jury returned a general guilty verdict, after being

instructed that defendants could be found guilty if the conspiracy

involved either cocaine or crack.              Accordingly, defendants claimed

that their sentences should have been based on the Guidelines for

cocaine,   rather    than     for   crack      (greater    possible     Guidelines’

sentence than for cocaine). Noting “a potential conflict among the

circuits on this question” (citing Bounds, among other cases), id.,

the Court held that the sentencing court was authorized by the

Guidelines   (indeed,        required)    to     determine    whether    crack,    or

cocaine,   or   both    were     involved.          It    noted,    however,    that

defendants’ “statutory and constitutional claims would make a

difference if it were possible to argue, say, that the sentences

imposed exceeded       the    maximum     that    the    statutes   permit     for a

cocaine-only conspiracy. That is because a maximum sentence set by

statute trumps a higher sentence set forth in the Guidelines”.                    Id.

(emphasis added).

     Although Edwards was cited to it pre-sentencing, the district

court   concluded,     as     noted,     that    Bounds,     Cooper,    and    Fisher

controlled; but, in so doing, it recognized “it [was] in a gray

area” and hoped we would “address this with specificity”.                       Then,

subsequent to Green’s sentencing, our court held in Medina, 161

F.3d at 874, that our Bounds-rule (concerning Guidelines offense

levels) was “rejected” by Edwards.



                                       - 16 -
      The   Bounds-obstacle       having   been   removed,         the    Government

contends,   inter    alia,   that    the    general    rule    about       statutory

maximums    recognized     in    Fisher     and   Cooper      is    inapplicable,

maintaining   that, even though a general verdict was used, Green’s

verdict was not ambiguous; therefore, his sentence should not have

been limited to the statutory maximum for preludes.

      Accordingly, we must determine whether the general verdict is

“ambiguous” ipso facto.         The obvious starting point is that, for a

conspiracy with more than one object-offense, a sentence set by

statute for one of those offenses should not be imposed if the jury

did   not   find    the   defendant    guilty     of   that        object-offense.

Restated, different considerations are in play than for Guidelines’

sentencing, such as where relevant conduct is considered.

      The general rule recognized by Cooper, 966 F.2d at 940, and

Fisher, 22 F.3d at 576, serves this salutary purpose.                    We take care

in limiting Cooper and Fisher to simply “recognizing” the general

rule.   This is the term employed by Fisher in citing Cooper for the

rule.   Fisher, 22 F.3d at 576.           For the sentencing issue in each

case, where the rule was recognized, the sentence imposed did not

exceed the statutory maximum for the object-offense with the least

severe penalty.      See Cooper, 966 F.2d at 941; Fisher, 22 F.3d at

576. But, in each case, defendants asserted that the “least severe

principle” also applied to Guidelines calculations.                      Cooper, 966



                                    - 17 -
F.2d at 942; Fisher, 22 F.3d at 577.       Each rejected this transfer.

Cooper, 966 F.2d at 941-42; Fisher, 22 F.3d at 576-77.         But, in so

doing, after discussing relevant Guidelines provisions, Fisher

again noted the general rule, stating that defendants’ Guidelines

“argument overlooks the limitation of the sentence to the statutory

maximum for the least severe object offense alleged in the count of

conviction”.    Fisher, 22 F.3d at 577.        At best, this is dicta; as

discussed, the sentences did not exceed the statutory maximum for

the object-offenses.

       Moreover, the procedural scenario for the case at hand is far

different.     For example, Green’s jury was not instructed, as was

the Cooper jury, that it could convict for conspiracy if the

Government proved an agreement to distribute only one of the

controlled substances alleged in the indictment and that, if so, it

must   agree   unanimously   as   to   which   controlled   substance   was

distributed.    See Cooper, 966 F.2d at 939.      Fisher does not discuss

such underlying procedural matters employed in that case.

       In sum, we do not read Cooper or Fisher, which simply and

summarily recognized the general rule, to hold that a general

verdict for a conspiracy with more than one object-offense is

“ambiguous” ipso facto.      Nor do we understand the earlier-quoted

language from Edwards, 523 U.S. at ___, 118 S. Ct. at 1477, about

a “possible” contention regarding the statutory maximum to mandate

ambiguity in a general verdict.        Again, the jury was instructed in

                                  - 18 -
Edwards that it could find guilt for the charged conspiracy if it

found “the conspiracy involved either cocaine or crack”.                  Id.

(emphasis added).    As noted earlier, and as discussed infra, that

is not the situation here.

     Instead, especially in the light of Edwards and Medina, even

where there is a conspiracy general verdict, the sentencing court

can still conclude that the jury found, beyond a reasonable doubt,

guilt for more than just one object-offense.        See United States v.

Watts, 950 F.2d 508, 514-15 (8th Cir. 1991) (where indictment

charged conspiracy to distribute heroin, cocaine, and cocaine base,

and evidence of all three drugs introduced, verdict not ambiguous),

cert. denied, 503 U.S. 911 (1992).

     The indictment charged conspiracy to distribute “over fifty

(50) kilograms of cocaine, ... and over fifty thousand (50,000)

tablets of phenmetrazine or ‘preludes’”; described the object of

the conspiracy as a “scheme for profit involving transportation and

distribution of cocaine and phenmetrazine or ‘preludes’”; alleged

that the preludes distribution began in 1979 and was discontinued

in 1984, when the enterprise began distributing cocaine; and

alleged   that   Green   and   his    co-conspirators   used   vehicles   to

transport and deliver “cocaine and phenmetrazine or ‘preludes’”.

(Emphasis added.)

     In five instances, the jury instructions refer to the two

controlled substances.         In four of those five, “and” separates

                                     - 19 -
“cocaine” from “phenmetrazine or preludes”: the first, that Green

“is charged, in Count I of the indictment with conspiring to

distribute     cocaine    and   phenmetrazine    or    preludes,   controlled

substances”; the second, in listing the elements of the offense,

that, to find Green guilty, the jury must be convinced beyond a

reasonable doubt “[t]hat two or more persons made an agreement to

commit the crime of distribution of cocaine, phenmetrazine or

preludes as charged in the indictment”; the third and fourth, in

the same sentence, that “[t]o distribute cocaine and phenmetrazine

or preludes means for one person to intentionally transfer cocaine

and phenmetrazine or preludes to another”; and the fifth, and

final, that “at the time of the transfer the person making the

transfer knew that cocaine and phenmetrazine or preludes were

controlled substances”.         (Emphasis added.)

     As noted, in its general verdict, the jury found Green guilty

“[o]n Count I” (conspiracy) and “[o]n Count II” (harboring).                Any

chance   of    ambiguity    arising     from   the    one   instance   in   the

instructions where a comma, rather than a conjunction, separated

“cocaine” from “phenmetrazine or preludes” was removed by the

phrase that immediately followed — “as charged in the indictment”.

In other words, we agree with the Eleventh Circuit that this

possible ambiguity in the instruction cannot be resolved without

examining the evidence.         Green

              may not    prevail on     [his] claim simply by
              showing    that   [he     was]  convicted  under

                                    - 20 -
              conspiracy instructions which, on their face,
              might permit the jury to return a guilty
              verdict if the conspiracy found did not
              involve [cocaine]. It must also appear that
              the evidence would support such a construction
              of the verdict actually obtained.      In the
              absence of the latter, there can be no genuine
              ambiguity in the jury’s verdict, as any
              purported ambiguity would only have been
              created by a reading of the verdict that was
              not supported by the evidence in the case.

United States      v.   Dennis,    786   F.2d   1029,   1038-39   (11th   Cir.)

(emphasis added), reh’g granted in part on other grounds, 804 F.2d

1208 (11th Cir. 1986), cert. denied, 481 U.S. 1037 (1987).

     The evidence is overwhelming that the conspiracy, charged and

proved, had as its objectives the distribution of cocaine and

preludes. Colomb testified that: he began selling preludes in the

1970s   and    became   involved    in    distributing    cocaine   in    1983,

continuing until 1994; he began paying Green for information and

protection in 1981, initially $500, but later approximately $10,000

per month; Green was his “partner”, from 1981 to 1988, seeing him

once a month; and, after he (Colomb) became a fugitive in 1988, he

continued to be involved in cocaine distribution and to receive

information and protection from Green.

     There is no evidence to support concluding that the jury found

the conspiracy involved preludes, but not cocaine. Accordingly, it

is inconceivable that the verdict was based solely on finding that

Green   participated     in   a   conspiracy     involving   only   preludes.

Instead, we are more than confident that the jury was convinced


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beyond a reasonable doubt that both cocaine and preludes were

involved.

     Considering the conjunctive language used in the indictment to

describe the controlled substances that were the objects of the

conspiracy; the jury instructions, which also used conjunctive

language and referred to the indictment; and the overwhelming

evidence that the conspiracy involved cocaine and preludes, we

conclude that the jury found guilt beyond a reasonable doubt for

each of the object-offenses.     Accordingly, the verdict was not

ambiguous.   Therefore, it was error to limit Green’s sentence to

the statutory maximum for preludes.

                                III.

     For the foregoing reasons, the convictions are AFFIRMED; the

sentence is VACATED; and the case is REMANDED for resentencing.

               AFFIRMED in part, VACATED in part, and REMANDED




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