                      IN THE UNITED STATES COURT OF APPEALS
                               FOR THE FIFTH CIRCUIT

                                    _____________________

                                         No. 98-50986
                                    _____________________

       UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                              versus

       CHARLES ROTHENBACH and ERIC TAYLOR,

                                                            Defendants-Appellants.

              _______________________________________________________

                        Appeal from the United States District Court
                             for the Western District of Texas
                                     (SA-97-CR-203-2)
              _______________________________________________________

                                         October 1, 1999

Before REAVLEY, HIGGINBOTHAM and DENNIS, Circuit Judges.
PER CURIAM:*

       Appellant Charles Rothenbach appeals his conviction and sentencing for one

count of conspiracy to possess with intent to distribute marijuana and one count of

possession of a firearm by a felon. Appellant Eric Taylor appeals his sentencing for
one count of conspiracy to possess with intent to distribute marijuana. We affirm.

       Did the district court err in failing to suppress the evidence seized

pursuant to search warrants issued on June 18 and June 19, 1997?
       The court does not address the issue of probable cause if the case can be


   *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
decided on the basis of the good faith exception. U.S. v. Satterwhite, 980 F.2d 317,
320 (5th Cir. 1992). Rothenbach argues that the good faith exception does not

apply because the warrant was issued on the basis of a “bare bones” affidavit. An

affidavit is “bare bones” if it consists of nothing but conclusory statements lacking
in facts or circumstances from which a magistrate can independently determine

probable cause. Satterwhite, 980 F.2d at 321.

      The affidavit of Cal Fowler is not a “bare bones” affidavit because it contains

statements of fact from which a magistrate can independently determine probable
cause. The affidavit recounts that the informant stated that he accompanied Taylor
to Rothenbach’s ranch where Taylor purchased a half-pound of marijuana from
Rothenbach. The informant stated that Taylor negotiated with the informant

regarding a future purchase from Rothenbach of up to 600 pounds of marijuana.
These are not conclusory statements. These statements contain specific factual

information from which a magistrate can independently determine probable cause.
      Rothenbach further argues that the statements of the informant and Taylor are
hearsay and are unreliable. A probable cause affidavit may rely on hearsay if the

affidavit presents a substantial basis for crediting the hearsay. Satterwhite, 980 F.2d

at 321. The affidavit stated that the informant had assisted law enforcement officers
in prior investigations and prosecutions for drug trafficking. The affidavit also states

that the informant accompanied Taylor to Rothenbach’s premises where Taylor

purchased marijuana, which demonstrates the basis of the informant’s knowledge.

This provides a substantial basis for crediting the statements of the informant.


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      Taylor’s statements are statements against penal interest because they
implicate him in a conspiracy to engage in drug trafficking. Statements against

penal interest provide a substantial basis for crediting the statements. In addition,

Taylor’s statements are independently confirmed by the fact he purchased marijuana
at Rothenbach’s ranch. This provides a substantial basis for crediting Taylor’s

statements.

      Rothenbach further challenges the validity of the affidavit to support a search

warrant by claiming that it contains false statements. Rothenbach argues that there
are inaccurate statements regarding the future plans of the law enforcement officials
because the actual subsequent transaction varied in some details from the affidavit.
These variances have no relevance to the determination of probable cause and do

not call the credibility of the affidavit overall into question. Rothenbach also argues
that the statement of the informant regarding the size of Rothenbach’s ranch are

inaccurate. The size of the ranch is also irrelevant to the issue of probable cause
and this statement by the informant does not render the affidavit infirm.
      Rothenbach points to testimony of law enforcement officials to argue that the

affidavit is false. Detective Fowler testified that he had not read the transcript of a

recorded conversation between the informant and Taylor, but the affidavit does not
purport to be based upon review of the transcript. Therefore this testimony is

irrelevant to the affidavit. Fowler also testified that the informant had not been onto

the premises of Rothenbach’s ranch and that law enforcement officials had not

conducted surveillance on the premises of the ranch. The affidavit does not state


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that the informant or any law enforcement personnel had been on the premises of the
ranch, therefore Fowler’s testimony does not conflict with the affidavit. FBI Agent

Osa testified that the informant did not turn over any marijuana to him after

accompanying Taylor to Rothenbach’s ranch. This also does not conflict with the
affidavit because the affidavit does not state that the marijuana was purchased by

the informant for law enforcement officials. None of the alleged inaccuracies affect

the credibility of the affidavit.

          The affidavit contained facts from which a magistrate could determine
probable cause. The statements were sufficiently creditable to support the affidavit.
None of the alleged inaccuracies form any basis to question the affidavit as support
for probable cause. Because the affidavit was not a “bare bones” affidavit, the good

faith exception applies and the court does not reach the question of probable cause
itself.



          Whether the evidence was insufficient to support a jury verdict finding
Rothenbach guilty of conspiracy?

          The evidence included testimony that two days prior to the arrest of

Rothenbach, the informant accompanied Taylor to Rothenbach’s ranch where
Taylor obtained a small quantity of marijuana from Rothenbach. There was further

testimony that the informant negotiated with Taylor to purchase a two-pound sample

from Rothenbach for the purpose of a later purchase of 300 pounds of marijuana.

There was testimony that Agent Osa gave $1,500.00 to Taylor for the purchase of


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the two-pound sample. There was testimony that shortly after Agent Osa gave
Taylor the money, an airborne officer observed a van fitting the description of the

van driven by Taylor enter Rothenbach’s ranch, observed Rothenbach meet with the

driver, and observed the van depart the ranch shortly thereafter.
      Further evidence included testimony that shortly after the van left

Rothenbach’s ranch, Taylor returned to the location of the informant and Agent Osa

handed the informant a bag containing two pounds of marijuana and told the

informant that the transaction for 300 pounds of marijuana could not take place until
the next day because the marijuana would have to be recovered from a hiding place.
There was testimony that law enforcement officials seized $1250.00 from
Rothenbach’s truck and that the money was part of the $1500.00 given to Taylor by

Agent Osa. There was testimony that Rothenbach informed law enforcement
officers of the location of marijuana in the trunk of a car, stated that he did not

believe marijuana should be illegal, and that he was trying to make ends meet.
There was testimony that law enforcement officers searched the premises of
Rothenbach’s ranch and found scales and materials consistent with the packaging of

large amounts of marijuana.

      Physical evidence introduced at trial included at least 4 pounds of marijuana,
including that which was delivered by Taylor and that which was seized on

Rothenbach’s premises. Other physical evidence included scales and packing

materials. There was testimony that some of the packaging materials contained

marijuana residue. There was testimony that law enforcement officers seized over


                                            5
$11,000.00 in cash from Rothenbach’s house.
      Rothenbach testified that he did not provide any marijuana to Taylor, that he

is a farmer and that he does not sell marijuana. Rothenbach argues that there is no

direct evidence of his agreement to a conspiracy to distribute marijuana because the
testimony linking him to the alleged transaction was solely from the informant and

the law enforcement officers, none of whom negotiated directly with Rothenbach.

      The elements of the offense of conspiracy are: 1) the existence of an

agreement between two or more persons to possess marijuana with intent to
distribute, 2) knowledge of the agreement, and 3) voluntary participation in it. U.S.
v. Brito, 136 F.3d 397, 409 (5th Cir. 1998), cert. denied 118 S.Ct. 1817 (1998), and
cert. denied 118 S.Ct. 2389 (1998), and cert. denied 119 S.Ct. 159 (1998). Proof of

an overt act in furtherance of the conspiracy is not required. U.S. v. Lechuga, 888
F.2d 1472, 1476 (5th Cir. 1988). The jury may infer these elements from

circumstantial evidence. Id., U.S. v. Cardenas, 9 F.3d 1139, 1158 (5th Cir. 1993),
reh’g en banc denied 15 F.3d 1081 (5th Cir. 1994), cert. denied, 511 U.S. 1134
(1994). What the jury is permitted to infer is governed by a “rule of reason” and the

jury may “use their common sense.” Lechuga 888 F.2d at 1476. Intent to distribute

may be inferred from the presence of distribution paraphernalia or large amounts of
cash. Cardenas, 9 F.3d at 1158.

      The jury was entitled to disbelieve Rothenbach’s testimony in its entirety.

The informant’s testimony does not require corroboration. The testimony and

physical evidence were sufficient for the jury to conclude beyond a reasonable


                                          6
doubt that Taylor conspired with Rothenbach to sell 300 pounds of marijuana to the
informant and Agent Osa. The evidence was sufficient to support the verdict that

Rothenbach voluntarily and knowledgeably participated in an agreement with Taylor

to possess marijuana with intent to distribute it.


      Whether the evidence was sufficient to support Rothenbach’s conviction

of possession of a firearm by a felon?

      The evidence included testimony that Rothenbach told law enforcement
officers that he lived in the residence searched on June 18, 1999 and testimony that
Rothenbach’s mother told law enforcement officers that she lived in another house.
There was testimony that the house searched contained several weapons under a

bed in a bedroom. There was testimony that Rothenbach informed law enforcement
officials that he had a pistol in a safe, then assisted the officers in unlocking a safe

containing a nine millimeter pistol and $5000.00 in cash.
      Rothenbach argues that the evidence is insufficient because the title to the
property in question is in his mother’s name and his mother lives in the house that

was searched. Rothenbach argues that he gave up possession of all of his weapons

to his mother many years prior. Rothenbach argues that mere occupancy of a
premises subject to joint occupancy is not sufficient to support a verdict of

possession, citing to U.S. v. Mergerson, 4 F.3d 337 (5th Cir. 1993), cert. denied 510

U.S. 1198 (1994).

      The title to the property is irrelevant to the question of constructive


                                            7
possession of weapons on the premises, because the title does not control the
identity of persons with dominion or control over the premises. The jury was

entitled to believe or disbelieve that Rothenbach’s mother took possession of the

weapons. Even if the jury believed that she took possession of the weapons, this
does not compel the conclusion that Rothenbach did not maintain constructive

possession or regain actual possession of the weapons.

      The jury was entitled to disbelieve the testimony regarding the mother’s

occupancy of the house, but even if they credited such testimony, at best this merely
establishes joint dominion or control over the premises. The 5th Circuit has ruled
that in the event of joint occupancy of a premises, in addition to evidence of joint
occupancy, there must be some circumstantial indicium of possession to support a

verdict of possession. Mergerson, 4 F.3d at 349. The evidence includes testimony
that Rothenbach stated that he had a gun in the safe, led officers to the safe, and

assisted them in opening the safe. This evidence is sufficient to establish an
“indicium of possession” of the nine millimeter pistol seized from the safe. The
evidence was sufficient to support the jury determination beyond a reasonable doubt

that Rothenbach possessed a firearm.


      Whether the district court erred in applying USSG § 2D1.1 to determine

the applicable drug quantity for sentencing purposes?

      Rothenbach and Taylor both argue that the district court erred in pronouncing

sentence based upon the quantity of 300 pounds of marijuana. Appellants agree that


                                           8
the district court’s finding of the quantity is reviewed for clear error. Appellants
argue that Amendment 518 to Application Note 12 of USSG § 2D1.1 should be

applied to reduce the quantity for sentencing to the approximately 2 pounds of

marijuana delivered. Note 12, as amended, provides that the agreed-upon quantity
shall be used unless the sale is complete and the amount delivered more accurately

reflects the scale of the offense. U.S. v. Marmolejos, 140 F.3d 488, 490 (3rd Cir.

1998).

         As indicated above, there was testimony that the 2 pounds delivered were a
sample for the purpose of determining quality for the purchase of 300 pounds. In
addition, there was testimony that Agent Osa gave Taylor $1,500.00 even though
the sample only cost $1250.00. The excess over the cost was explained as money

that would be applied to the larger purchase once the sample had been inspected.
There was testimony that Taylor was in possession of some of the money from

Agent Osa at his arrest subsequent to the delivery of the sample.
         Appellants argue, based on Marmolejos, that the transaction was completed
and that the amount actually delivered should control the sentencing. In

Marmolejos, the appellant had negotiated to sell 5 kilograms of cocaine, but

delivered only 4.96 kilograms. Marmolejos, 140 F.3d at 489. There was no claim in
that case that the 4.96 kilograms was a precursor to another transaction which had

been separately negotiated. In the case at bar, the testimony supports the district

court’s conclusion that the delivery of 2 pounds did not finalize the negotiated

transaction.


                                           9
      Appellants argue alternatively that Note 12 should be applied on the basis
that the defendants established that they did not intend to provide or were not

reasonably capable of providing the agreed upon quantity. Marmolejos, 140 F.3d at

490. Appellants argue that law enforcement officials thoroughly searched
Rothenbach’s premises and recovered less than five pounds of marijuana including

the delivered sample. Appellants further offer testimony that they did not negotiate

to deliver 300 pounds of marijuana, do not fit drug dealer profiles and did not have

the financial resources to facilitate such a large transaction. Under a review for
clear error, this testimony would only establish Appellants’ lack of intent or ability if
the district judge were required to credit this testimony and disregard the testimony
of the government witnesses.

      The inability of the law enforcement officers to recover more marijuana does
not compel the conclusion that Appellants were incapable of providing the 300

pounds. There was testimony that Rothenbach had access to 1500 acres of farm
land in which marijuana could have been concealed. The testimony of Appellants
concerning their intent and capabilities does not compel the district judge to

conclude that Appellants did not intend to or were not capable of delivering 300

pounds of marijuana.
      Appellants further argue that because the informant was the only person who

directly negotiated with Taylor, the law enforcement officials lacked personal

knowledge of the amount of the negotiations. Appellants argue that the personal

knowledge of the informant is insufficient basis for the testimony regarding the


                                           10
negotiations for 300 pounds of marijuana, therefore the district judge should not
have applied that quantity to the determination of sentence. Appellants do not cite

to any legal authority to the effect that the informant’s testimony provides

insufficient basis for the district judge to make this determination. This is merely an
argument as to the weight that should be assigned to the evidence. This court

reviewing for clear error is not at liberty to assess the weight of the evidence to

reverse a finding of fact by the district court. The district court’s determination of

300 pounds was supported by the evidence in the record and is not subject to
reversal for clear error.


       Whether the district court erred in applying a 2-level enhancement for

possession of a firearm and in failing to reduce the firearms offense to level six
because Rothenbach possessed the firearms for a lawful sporting purpose or

collection.
       Depending upon whether these issues were preserved by being raised before
the district court or not, this Court reviews these matters for plain error or clear

error. Under either standard, the evidence supports the district court’s finding for

sentencing. As indicated above, there was testimony that upon arrest, Rothenbach
stated that he had a loaded weapon in a safe and assisted law enforcement officers

in opening a safe from which they seized a nine millimeter pistol and $5000.00 in

cash. The safe was located in a house with drugs, drug paraphernalia and several

other firearms.


                                           11
      The testimony is sufficient for the district court to determine that Rothenbach
possessed a firearm for enhancement purposes. In addition, the district court was

not required to find that the possession of a loaded nine millimeter pistol in a safe

full of cash constitutes a collection or a lawful sporting purpose.


      Did the district court err in sentencing Rothenbach to 95 months for

count 2 of the indictment?

      The sentencing for both counts against Rothenbach are grouped under USSG
§ 3D1.1. Because the court affirms the conviction and sentence for Count 1, the
sentence is proper irrespective of what the correct separate sentence for Count 2
would have been.

      AFFIRMED.




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