UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                               No. 96-4098

LESTER LEE BASS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                               No. 96-4422

TOMMY ESSICK,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Sr., District Judge.
(CR-95-112)

Submitted: March 11, 1997

Decided: July 31, 1997

Before HALL, ERVIN, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

A. Wayne Harrison, Sr., HARRISON, NORTH, COOKE, & LAN-
DRETH, Greensboro, North Carolina; Robert I. O'Hale, CLIFFORD,
CLENDENIN & O'HALE, L.L.P., Greensboro, North Carolina for
Appellants. Walter C. Holton, Jr., United States Attorney, Harry L.
Hobgood, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants Tommy Essick and Lester Lee Bass were convicted by
a jury of one count each of conspiracy to possess with intent to dis-
tribute and to distribute marijuana (21 U.S.C. § 846 (1994)) and
attempted possession of marijuana with intent to distribute (21 U.S.C.
§ 841(a)(1) (1994)). In these consolidated appeals, Essick and Bass
raise seven issues: (1) whether the district court erred in denying Ess-
ick's motion to dismiss count two of the indictment (attempted pos-
session of marijuana); (2) whether the district court erred by giving an
aiding and abetting instruction to the jury in connection with count
two of the indictment; (3) if the district court erred in denying the
motion to dismiss and by giving the aiding and abetting instruction,
whether these errors prejudicially confused the jury and made a fair
trial on count one (conspiracy) impossible; (4) whether the district
court erred by denying Bass's motion for judgment of acquittal on the
conspiracy charge; (5) whether the district court erred by not allowing
Bass to present evidence pursuant to Fed. R. Evid. 804(b)(3);
(6) whether the district court erred by not allowing Bass to present
evidence showing that he was not predisposed to commit the crime
and failing to give an entrapment instruction to the jury; and
(7) whether Bass was entitled to a downward adjustment from the
Sentencing Guidelines* as a minor participant. Finding no reversible
error, we affirm.
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1995).

                    2
Essick and Bass were part of a large drug conspiracy headed by
Hobart ("Hobart") and Sandra Crotts. Tony Walser ("Walser") was
one of the primary lieutenants of the conspiracy. Walser was appre-
hended in March 1995 and agreed to cooperate with authorities. As
part of this cooperation, Walser, along with an undercover agent, set
up a shipment of approximately 118 pounds of marijuana from Texas
to North Carolina. The shipment was to be delivered in a fifty-five-
gallon barrel on April 5, 1995.

After Walser returned to North Carolina, he and Hobart discussed
who would pick up the marijuana. Hobart informed Walser that Ess-
ick enlisted Bass to make the pick-up. Essick told Bass that he (Bass)
would receive $10,000 for his efforts. Bass also admitted at trial that
he knew Hobart and Essick were involved in drugs and suspected that
the pick-up involved some type of controlled substance.

Walser contacted Essick who told him when and where to pick up
Bass. At some point, Bass expressed concerns about Walser because
he (Bass) had been instrumental in putting Walser in prison several
years before. Essick set up a meeting with Hobart, who assured Bass
that the pick-up was "legitimate." Based on his meeting with Hobart,
Bass agreed to pick up the drugs. Bass went to the depot on April 5,
1995 to pick up the drugs, and government agents assisted him in
loading the barrel into the truck. Bass was apprehended as he
attempted to leave the depot.

No. 96-4422

Essick claims that the district court erred in denying his motion to
dismiss the attempted possession count because the evidence pres-
ented at trial was insufficient to support conviction. Specifically, Ess-
ick alleges that the Government failed to show that he was to receive
any of the marijuana. Essick further attempts to portray the April 5
incident as being entirely between Walser and Bass.

We find these claims to be without merit. Essick was a frequent
customer, receiving at least forty-seven pounds of marijuana during
the course of the conspiracy. In addition, Essick recruited Bass,
arranged for Walser to provide Bass with a rental truck and a bill of
lading, told Walser where and when to pick up Bass, arranged for

                     3
Bass to meet with Hobart when Bass expressed concerns about the
pick-up, made inquiries after Bass's arrest, and was to be paid $1000
for his services. While Essick is correct in his assertion that there was
no evidence showing that he was to receive any of the marijuana, the
evidence clearly showed that he played a major role in arranging the
pick-up. Accordingly, we find that the evidence was sufficient to find
that Essick possessed the culpable intent to commit the crime charged
and took substantial steps toward the completion of the crime. See
United States v. Neal, 78 F.3d 901, 906 (4th Cir.), cert. denied, ___
U.S. ___, 65 U.S.L.W. 3260 (U.S. Oct. 7, 1996) (No. 95-9410).

Essick also asserts that the district court erred in giving an aiding
and abetting instruction because the evidence did not support the
instruction and because he was never charged with aiding and abet-
ting. We find that this argument is also without merit.

An "indictment or information need not specifically charge aiding
and abetting in order to support a conviction on that charge . . .
[because aiding and abetting] applies implicitly to all federal
offenses." Pigford v. United States, 518 F.2d 831, 834 (4th Cir. 1975);
see also United States v. Mucciante, 21 F.3d 1228, 1234 (2d Cir.
1994). Since the evidence supported the elements of the offense, and
since the Government argued for aiding and abetting liability, the
instruction was proper. See Mucciante, 21 F.3d at 1234 ("An aiding
and abetting jury instruction is appropriate where the prosecution
makes it known that it intends to proceed on a theory of aiding and
abetting and the evidence so warrants.") (citation omitted). We there-
fore find that the district court did not abuse its discretion in giving
an instruction on aiding and abetting.

Since the district court did not err as to Issues One and Two above,
Essick's third issue is moot. Moreover, since aiding and abetting has
different elements from conspiracy, and since the jury was properly
instructed to keep the offenses separate, we find that Essick failed to
show how the jury was confused by the evidence.

No. 96-4098

Bass asserts that the evidence was insufficient to support his con-
viction for conspiracy because the only one he communicated with

                     4
was Walser. Since Walser was acting as a government informant, he
was incapable of forming the necessary criminal intent to form a con-
spiracy. See United States v. Heater, 63 F.3d 311, 323 (4th Cir. 1995),
cert. denied, ___ U.S. ___, 64 U.S.L.W. 3485 (U.S. Jan. 16, 1996)
(No. 95-7090) (one cannot conspire with a government agent or infor-
mant).

We find that the evidence was sufficient to implicate Bass in the
overall conspiracy. See United States v. Brooks , 957 F.2d 1138, 1147
(4th Cir. 1992) ("Once it has been shown that a conspiracy exists, the
evidence need only establish a slight connection between the defen-
dant and the conspiracy to support conviction."). It was undisputed
that there was a large drug conspiracy, and Bass admitted that he
knew that he was picking up something for someone he knew was
involved with drugs (Hobart) and that he suspected the barrel con-
tained controlled substances. Therefore, the "slight connection"
between Bass and the larger conspiracy was established. Moreover,
contrary to Bass's assertions, evidence was presented at trial showing
that Bass conspired with Essick and Hobart, in addition to Walser. As
a result, there was sufficient evidence to support Bass's conviction for
conspiracy, and the district court did not err in denying Bass's
motion.

Bass wanted to introduce evidence at trial that Walser told Essick
to have Bass make the pick-up instead of Essick's son. Bass wanted
to use the statement to support his claim that Walser "set him up" out
of revenge for Bass's role in putting Walser in prison several years
earlier.

The burden was on Bass to show that the evidence met the require-
ments of Fed. R. Evid. 803(b)(3), and "the court's decision on its
admissibility is reviewed for abuse of discretion." United States v.
Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995), cert. denied, ___ U.S.
___, 64 U.S.L.W. 3550 (U.S. Feb. 20, 1996) (No. 95-1076). We find
no abuse of discretion here.

Hearsay statements may only be admitted under Rule 803(b)(3) if
"(1) the declarant is unavailable, (2) the statement is genuinely
adverse to the declarant's penal interest, and (3) corroborating cir-
cumstances clearly indicate the trustworthiness of the statement. Id.

                    5
(internal quotation marks omitted). The proffered evidence failed to
meet any of these requirements. First, contrary to Bass's assertions,
Walser was the original declarant, not Essick. Since Walser testified
at trial, he certainly was not "unavailable." Second, there was no evi-
dence showing that the alleged statement was against Walser's penal
interest. Finally, evidence was presented at trial showing that Hobart
suggested using Bass and that Walser was simply told that Bass was
the one making the pick-up. As a result, the evidence at trial contra-
dicted the trustworthiness of the statement rather than corroborated it.

During the trial, Bass sought to introduce testimony from several
witnesses who were prepared to testify that Bass had a reputation as
a law-abiding citizen with no prior involvement in criminal activities.
Bass sought to introduce the testimony to prove that he was not pre-
disposed to commit the crime.

We find that the district court properly declined to admit the prof-
fered testimony. Since "the fact that a defendant has not previously
committed any related crime is not proof of lack of predisposition,"
the testimony was irrelevant. United States v. Osborne, 935 F.2d 32,
37-38 (4th Cir. 1991).

Since the question of entrapment is generally one for the jury, this
court reviews the district court's decision not to give an entrapment
instruction de novo. United States v. Singh, 54 F.3d 1182, 1189 (4th
Cir. 1995). Applying this standard, we find that the district court did
not err in deciding not to give the instruction. Entrapment is an affir-
mative defense, and the burden is on the defendant to go forward with
evidence beyond a mere scintilla that the government induced him to
commit an offense he was not otherwise predisposed to commit.
Osborne, 935 F.2d at 38. A defendant who is unable to carry his bur-
den forward is not entitled to submission of the issue to the jury. Id.

The Supreme Court has held that the entrapment defense has two
elements: (1) government inducement and (2) lack of predisposition.
Of the two, predisposition is the more important. Mathews v. United
States, 485 U.S. 58, 63 (1988). In the present case, Bass did not pres-
ent any evidence to support his conclusory claims that he was not pre-
disposed to commit the offense, other than the inadmissible testimony
concerning his lack of prior involvement in criminal activity. More-

                    6
over, other than Bass's self-serving claims that Walser pushed for his
recruitment, there was no evidence of government inducement. To the
contrary, substantial evidence was presented showing that Hobart and
Essick recruited Bass, not Walser. Since Bass failed to present any-
thing more than a "mere scintilla" of evidence, the district court prop-
erly found "as a matter of law that no entrapment existed." Osborne,
935 F.2d at 38.

Finally, Bass asserts that the district court should have given him
a downward adjustment to his base offense level pursuant to USSG
§ 3B1.2 because he was a minor participant in the conspiracy. We dis-
agree.

The district court's determination concerning Bass's role in the
offense is factual in nature and is reviewed for clear error. United
States v. Arnoldt, 947 F.2d 1120, 1128 (4th Cir. 1991). Moreover, the
burden was on Bass to show that he was entitled to the adjustment.
See United States v. Gordon, 895 F.2d 932, 935 (4th Cir. 1990). We
find that Bass failed to meet this burden.

While Bass is correct in his assertion that he was only a minor par-
ticipant in the overall conspiracy, he certainly was not a minor partici-
pant in the events surrounding the attempted possession of 118
pounds of marijuana on April 5, 1995. In fact, the weight of the evi-
dence showed that, as the person attempting to pick up the drugs, he
was a primary participant. Since the adjustment is only available to
the least culpable member(s) of the group (USSG§ 3B1.2, comment.
(n.1)), and since Bass was at least as culpable as Hobart, Essick, and
Walser, the district court's decision not to grant the adjustment was
not clearly erroneous.

We therefore affirm the orders of the district court in both appeals.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the material before the court and
argument would not aid the decisional process. Bass's "Motion for
Review of Full Testimony of Tony Walser, Government Witness, in
Support of Appellant's Brief" is granted to the extent that it asks that
we review Walser's testimony. The motion is denied as to any addi-
tional relief requested.

AFFIRMED

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