PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 95-5581
NORMAN HARRINGTON WILSON, a/k/a
Stormin Norman,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 95-5582
WILLIAM DAVID WILSON, a/k/a
Pudgie,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 95-5839
WILLIAM CORREY TALLEY, a/k/a Rat
Rat,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Fayetteville.
Terrence W. Boyle, Chief District Judge.
(CR-94-65-BO)

Argued: June 7, 1996

Decided: January 29, 1998
Before RUSSELL, WIDENER, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated and remanded in part, and vacated and
remanded in part with instructions by published opinion. Judge
Michael wrote the opinion, in which Judge Russell and Judge Wid-
ener joined.

_________________________________________________________________

COUNSEL

ARGUED: Rudolph Alexander Ashton, III, New Bern, North Caro-
lina, for Appellant Norman Wilson; Wayne Buchanan Eads, Raleigh,
North Carolina, for Appellant William Wilson; Alexis Christopher
Pearce, Raleigh, North Carolina, for Appellant Talley. John Howarth
Bennett, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee. ON BRIEF: Janice McKenzie Cole, United States
Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

Norman Wilson, his brother William Wilson, and William Talley
appeal their convictions for several offenses relating to drug traffick-
ing. We vacate Talley's convictions and remand his case for a new
trial because of prosecutorial misconduct during closing argument.
Talley was not on trial for murder, and the evidence was insufficient
to permit the inference that he had committed murder. Nevertheless,
the prosecutor, in an eleventh hour surprise at summation, told the
jury that Talley had murdered a man, and that improper argument
prejudiced Talley to the point of denying him a fair trial. As to Nor-
man Wilson we remand with instructions to vacate his conspiracy
conviction and its related sentence because conspiracy is a predicate
offense for his continuing criminal enterprise conviction. We affirm
Norman Wilson's other convictions and both of William Wilson's
convictions.

                     2
I.

The conspiracy count in the thirteen-count indictment charged that
Ronald Perkins and appellant Norman Wilson "supervised and con-
trolled an organization known as the `Grove View Terrace Court
Boys,' which controlled the distribution of crack cocaine in the Grove
View Terrace housing project" in Fayetteville, North Carolina, from
1988 until late 1994.1 Perkins and Norman Wilson were also charged
with operating a continuing criminal enterprise (CCE) through an
extended series of drug trafficking violations. The eleven remaining
counts charged other alleged co-conspirators, including appellants
William Wilson and Talley, with various drug or weapons violations.

Perkins began cooperating with the government after he was
arrested. He signed a plea agreement and testified, as the govern-
ment's main witness, against the two Wilsons and Talley, who were
tried together. Perkins testified that he and Norman Wilson were part-
ners and co-managers of the Court Boys drug ring. Perkins was
responsible for obtaining wholesale supplies of powder cocaine, and
Norman Wilson was in charge of cooking the cocaine into crack,
packaging it, and distributing it to street dealers. Perkins identified
Talley as one of the organization's street dealers, and he said that
Norman Wilson "sometimes" gave William Wilson crack to sell.
Other witnesses, who admitted their involvement with the Court Boys
organization and who were testifying for the government under plea
agreements, implicated the Wilsons and Talley in varying degrees.
We will discuss the evidence in greater detail as it becomes pertinent
to the issues raised.

The jury convicted Norman Wilson of operating a CCE, see 21
U.S.C. § 848, conspiracy to possess with intent to distribute crack
cocaine, see 21 U.S.C. § 846, and using or carrying a firearm during
and in relation to a drug trafficking crime, see 18 U.S.C. § 924(c). He
was sentenced to concurrent life terms on the conspiracy and CCE
convictions and to sixty months consecutively on the§ 924(c) convic-
_________________________________________________________________
1 It was alleged that most of the members of the Perkins-Norman Wil-
son drug ring grew up in the Grove View Terrace project, which consists
of a group of apartment buildings surrounding a central courtyard, hence
the name "Court Boys."

                    3
tion. William Talley was convicted of conspiracy to possess with
intent to distribute crack cocaine and on a § 924(c) firearms violation.
In addition, Talley was convicted of possession with intent to distrib-
ute crack cocaine, although this was later changed to a powder
cocaine conviction. See 21 U.S.C. § 841(a)(1). He was sentenced to
concurrent life terms on the conspiracy and possession convictions
and to sixty months consecutively on the § 924(c) conviction. Wil-
liam Wilson was convicted of conspiracy to possess with intent to dis-
tribute crack cocaine and on a § 924(c) firearms violation. He was
sentenced to 300 months in prison for the conspiracy conviction and
sixty months consecutively on the firearms conviction. The two Wil-
sons and Talley now appeal.

II.

A.

We turn first to Talley's main contention. Talley was not on trial
for murder, and there was no evidence that he had actually killed any-
one. The prosecutor waited until closing argument to contend that
Talley had murdered a man in a drug deal that turned sour. Talley
asserts that the murder argument, a last-minute surprise that went
beyond the evidence, was prosecutorial misconduct that deprived him
of a fair trial. We agree.

Two members of the Court Boys drug ring testified about an inci-
dent at Grove View Terrace when Talley attempted to make a drug
sale from the curb into a car. According to one of the witnesses, the
man in the car "snatched something" from Talley. J.A. 283. After the
car pulled away, Talley, who had a gun, fired at it. Neither witness
was sure that the car had been hit: one said he"d[id] not know if [Tal-
ley] hit it," id., and the other said the car "slowed down . . . like it
had been hit" and then "wobbled on out" or"pulled on out [of] the
projects." J.A. 374. The next morning the witnesses saw the car over
a bridge embankment ("in the grassy part," J.A. 284) about a half mile
from Grove View Terrace.2 The first witness testified that he was "not
sure what happened to the guy" in the car. J.A. 284. When the prose-
_________________________________________________________________
2 Talley's lawyer either objected to or moved to strike all of this testi-
mony.

                    4
cutor asked the second witness, "What happened to the driver?", J.A.
374, the trial judge sustained an objection, and the question went
unanswered. As a result, there was no testimony about the driver's
fate. Specifically, there was no testimony that a body had been recov-
ered or that the driver of the car had received, much less died of, gun-
shot wounds.

This lack of evidence of a death, however, did not stop the prosecu-
tor from arguing (over objection) in his initial closing and again in
rebuttal that Talley had murdered the driver of the car. Moreover,
when the prosecutor made this argument, he knew (but had not dis-
closed to defense counsel) that another person had been convicted in
state court of murdering the same man.

The prosecutor made the murder argument as follows during his
initial closing argument:

           THE PROSECUTOR: Ladies and gentlemen, you heard
          Ronald Perkins talk about, as time went by, the escalation
          in violence in and around Grove View Terrace. You heard
          him talk about that and how more shootings and craziness
          -- I think he used that word. The guns were just getting
          worse; it was getting a lot more violent. And you heard
          Steve Evans [sic] and Kelly Debnam talk to you about one
          incident in particular involving Mr. Talley. A car came into
          Grove View Terrace. That was commonplace; people could
          drive in and drive right up to people, buy crack cocaine.

          MR. PEARCE [Counsel for Talley]: Objection.

          THE COURT: Overruled.

           THE PROSECUTOR: A car came in, and something
          happened. Most likely, from what the witnesses testified, the
          person buying the drugs was probably trying to rip Mr. Tal-
          ley off, get some drugs and not pay him and everything.

          MR. PEARCE: Objection, Your Honor.

          THE COURT: Overruled.

                    5
          THE PROSECUTOR: How did Mr. Talley respond? He
         pulled out his gun, he shot at that car, the car lurched for-
         ward a little bit and kind of slowed down, came, turned out
         of the projects, a couple hundred yards down the street went
         down the road off the embankment. Ladies and gentlemen,
         what do you think happened to the driver of that car? What
         do you think happened to the driver of that car? What hap-
         pened is that William Talley shot him dead.

          MR. PEARCE: Objection, Your Honor.

          THE COURT: Overruled.

          THE PROSECUTOR: He killed that man that night for
         ripping him off for drugs.

          MR. PEARCE: Objection.

          THE COURT: Overruled.

J.A. 519-20.

During his closing argument Talley's lawyer reminded the jury that
Talley was not on trial for murder and that there was no evidence of
murder. The matter did not end there, however. During the final
moments of his rebuttal argument the prosecutor returned to the sub-
ject:

          THE PROSECUTOR: Two more things to sort of close
         it up. One is back to Mr. Talley. Ladies and gentlemen, two
         witnesses have come in here and testified somebody drove
         into Grove View Terrace, engaged in some sort of transac-
         tion with Mr. Talley. The car pulled away, and Mr. Talley
         fired at the car. The car slowed down, halted, pulled out of
         the project, and was seen -- the car was over in the ditch.

         MR. PEARCE: Objection to this whole line, Your
         Honor.

                   6
           THE COURT: The alleged shooting, is that what you're
          arguing about?

           THE PROSECUTOR: Yes, sir.

           MR. PEARCE: Yes, sir.

           THE COURT: Overruled.

           THE PROSECUTOR: And that car was found several
          hundred yards or so away, just outside the project, over an
          embankment. You draw your own conclusions about what
          happened. Use your common sense, but two witnesses have
          testified Mr. Talley fired at that car. And then as to what
          happened to that car or that vehicle right afterwards.

J.A. 561-62.

B.

Our circuit has a two-pronged test for determining whether a prose-
cutor's misconduct in closing argument "`so infected the trial with
unfairness as to make the resulting conviction a denial of due pro-
cess.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). Specifically, a
defendant "must show [1] that the [prosecutor's] remarks were
improper and [2] that they `prejudicially affected the defendant's sub-
stantial rights so as to deprive [him] of a fair trial.'" United States v.
Adam, 70 F.3d 776, 780 (4th Cir. 1995) (quoting United States v.
Mitchell, 1 F.3d 235, 240 (4th Cir. 1993)); accord United States v.
Francisco, 35 F.3d 116, 120 (4th Cir. 1994); United States v.
Brockington, 849 F.2d 872, 875 (4th Cir. 1988).

1.

We turn first to whether it was improper for the prosecutor to argue
precipitously in summation that Talley "shot[a man] dead" for
snatching some drugs. The government contends that the murder
argument was fair comment on admissible evidence of Talley's gun

                     7
use. According to the government, Talley's firing of the gun after the
curbside incident "was an integral part of the charged conspiracy."
Appellee's Br. at 32.3 We agree that this evidence of Talley's gun use
was admissible because it arose out of the alleged conspiracy. See
United States v. Morgan, 117 F.3d 849, 861 (5th Cir. 1997). But that
does not mean it was proper for the prosecutor to use this evidence
in final argument to press a claim of murder against Talley.

The murder argument is problematic for several reasons. First, the
argument was not based on record evidence or any reasonable infer-
ence that could be drawn from it. The evidence was simply that (1)
Talley shot at the car as it drove away, (2) the car slowed down "like
it had been hit," "wobbled," then drove out of Grove View Terrace,
and (3) the car was found later, about one-half mile away, off the road
in the grass. While this evidence may have been sufficient to support
the inference that Talley's gunfire hit the car, or perhaps that a shot
struck the driver, it is not enough to suggest that the driver died as a
result of any gunshot from Talley. There was no evidence of the con-
dition of the car, for example, no evidence of bullet holes in the pas-
senger compartment and no evidence of blood. Finally, there was no
evidence that a body had been recovered; indeed, there was no hint
of what had become of the driver.

This complete lack of evidence about what happened to the driver
meant that the government did not prove a death, the first element of
the corpus delecti.4 Because the government did not establish a corpus
_________________________________________________________________
3 The government did not rely on this alleged gun use to charge Talley
under § 924(c).

4 The corpus delecti for murder is (1) a death (2) by unlawful conduct.
See United States v. Russell, 971 F.2d 1098, 1110 n.22 (4th Cir. 1992).
Of course, the prosecution may establish the corpus delecti by circum-
stantial evidence. See id. at 1110-12. In a circumstantial case of murder
there must still be proof of the victim's death, such as a lengthy disap-
pearance or the extreme loss of blood. In other words, the inference of
death must have a reasonable basis in the facts. See, e.g., id. (victim dis-
appeared); Epperly v. Booker, 997 F.2d 1, 7-8 (4th Cir. 1993) (victim's
blood found, and she had disappeared); see also Virgin Islands v. Harris,
938 F.2d 401, 408-15 (3d Cir. 1991) (surveying cases). Because there
was no evidence here that fairly suggested that the driver had died, an

                     8
delecti, the prosecutor could not fairly argue that Talley murdered the
driver of the car. By saying that Talley had murdered a man, the pros-
ecutor asserted something as fact that had not been proved, and that
was clearly improper. By going outside the evidence, the prosecutor
"violated a fundamental rule, known to every lawyer, that argument
is limited to the facts in evidence." United States ex rel. Shaw v. De
Robertis, 755 F.2d 1279, 1281 (7th Cir. 1985). Of course, a prosecu-
tor may argue that the evidence gives rise to an inference, but the sug-
gested inference must be reasonably drawn from the facts in evidence.
See United States v. Brainard, 690 F.2d 1117, 1122 (4th Cir. 1982).
Here, there was no basis from direct fact or reasonable inference for
a murder argument.

Second, the prosecutor asked one witness what happened to the
driver, and the trial judge refused to allow an answer. Thus, the prose-
cutor argued that Talley had killed the driver, knowing very well that
he (the prosecutor) had not been permitted to introduce any evidence
of the driver's fate. It is well settled that a prosecutor cannot argue
facts that were excluded from evidence by the trial judge. See United
States v. Small, 74 F.3d 1276, 1282 (D.C. Cir. 1996).

Third, the murder argument came as a last-minute surprise. Talley
was not charged with murder in the indictment, and the testimony
about his shot at the car did not translate into notice that it would be
used as the predicate for a murder claim. As we just mentioned, there
was no evidence that the driver had died of a gunshot inflicted by Tal-
ley. Indeed, the judge had pointedly excluded any evidence of what
happened to the driver. As a result, neither Talley nor his lawyer
could have been expected to understand that the prosecutor would
make a claim of murder in summation. They were blindsided when
it was too late to investigate the matter and present a defense.
_________________________________________________________________

inference of death was not reasonable. Cf. Lavender v. Kurn, 327 U.S.
645, 653 (1946) ("Whenever . . . the evidence is such that fair-minded
men may draw different inferences, [it is the jury's] duty to settle the dis-
pute by choosing . . . the most reasonable inference. Only when there is
a complete absence of probative facts to support the conclusion reached
does a reversible error appear.").

                     9
Indeed, if there had been the opportunity, it appears that Talley's
lawyer could have developed a defense. Another man had been con-
victed in state court for murdering the driver of the car -- a fact that
the prosecutor knew when he told the jury that Talley had shot and
killed the driver. However, the prosecutor did not disclose this state
murder conviction to the defense, and Talley's lawyer did not learn
about it until after trial. Even if Talley knew about the state convic-
tion, the murder claim initiated at closing came too late for Talley's
lawyer to develop a factual defense based on any information Talley
might have had.5

We conclude that the prosecutor's murder argument was highly
improper because it was not supported by the evidence and it was
sprung at the last minute, when Talley and his lawyer had no chance
to investigate the charge or to offer any evidence in defense.

2.

That brings us to the second prong of the test -- whether the defen-
dant's substantial rights were prejudiced to the point of denying him
a fair trial. Several factors are relevant to the determination of preju-
dice, including:

           (1) the degree to which the prosecutor's remarks have a ten-
           dency to mislead the jury and to prejudice the accused; (2)
           whether the remarks were isolated or extensive; (3) absent
           the remarks, the strength of competent proof introduced to
           establish the guilt of the accused; and (4) whether the com-
           ments were deliberately placed before the jury to divert
           attention to extraneous matters.
_________________________________________________________________
5 If Talley did not know about this piece of exculpatory and impeach-
ment evidence before trial, the prosecutor's final argument was improper
for another reason. Because the prosecutor knew that a man was in
prison for the murder, but did not disclose that fact to the defense, he
would have violated his duty under Brady v. Maryland, 373 U.S. 83
(1963), and United States v. Bagley, 473 U.S. 667 (1985), to inform the
defense of any material exculpatory or impeachment evidence. Cf.
United States v. Zackson, 6 F.3d 911, 918 (2d Cir. 1993) (explaining that
evidence is not "suppressed" for Brady purposes when defendant knew
or should have known about it).

                     10
Adam, 70 F.3d at 780 (quoting United States v. Harrison, 716 F.2d
1050, 1052 (4th Cir. 1983)); Mitchell, 1 F.3d at 241-42 (same). We
also consider (5) whether the prosecutor's remarks were invited by
improper conduct of defense counsel, see United States v. Young, 470
U.S. 1, 12-13 (1985), and (6) whether curative instructions were given
to the jury, see Harrison, 716 F.2d at 1053. These factors are exam-
ined in the context of the entire trial, and no one factor is dispositive.

a.

We begin the prejudice analysis by assessing the degree to which
the prosecutor's remarks misled the jury and prejudiced Talley. It was
extremely misleading for the prosecutor to tell the jury that Talley
killed a man "for ripping him off" in a drug deal, when there was no
evidence of death or life-threatening injury. By forcefully stating an
unreasonable inference, the prosecutor was making the misleading
suggestion to the jury that it could draw the inference that Talley was
a murderer. See 1 ABA Standards for Criminal Justice 3-5.8(a) (3d
ed. 1993) ("The prosecutor should not intentionally . . . mislead the
jury as to the inferences it may draw.").

We also believe that the prosecutor's murder argument was preju-
dicial to Talley. First, it is hard to fathom anything more prejudicial
than the unproved assertion that the accused is also guilty of the
uncharged crime of murder while he is on trial for another offense.
See United States v. Bradley, 5 F.3d 1317, 1321 (9th Cir. 1993) (evi-
dence of an uncharged homicide was "highly and unfairly prejudi-
cial"). Our society reserves its severest condemnation for murderers.
Murder is a crime "regarded by public opinion as involving moral tur-
pitude," Restatement (Second) of Torts § 571 (1977), which "means,
in general, shameful wickedness, so extreme a departure from ordi-
nary standards of honesty, good morals, justice or ethics to be shock-
ing to the moral sense of the community," id. at cmt. g. Here, there
is a serious risk that the jury decided to convict Talley simply because
it believed he was a murderer, not because it weighed the evidence
for proof of drug conspiracy and possession, the crimes actually
charged. See United States v. Pirovolos, 844 F.2d 415, 426 (7th Cir.
1988) ("Any implication that a criminal defendant is guilty of
uncharged offenses unfairly encourages the jury to find the defendant
guilty because of his or her bad character, rather than because the evi-

                     11
dence warrants a guilty verdict."). Second, the prosecutor's unfore-
seen claim of murder was prejudicial because it came at a point when
it could not be countered with a factual defense. Talley's lawyer did
all he could in the circumstances by arguing that Talley was not on
trial for murder. But because of the last-minute nature of the charge,
Talley's lawyer was deprived of any chance to learn about and pres-
ent what could have been the best defense: that someone else had
been convicted for the murder.6 Finally, Talley was prejudiced by the
murder remarks because he did not know that the testimony of Per-
kins and Debnam, the two witnesses who discussed his shot at the car,
would be used to establish him as a murderer. Because the murder
assertion came well after Perkins and Debnam were off the stand, Tal-
ley had no opportunity to cross-examine them about any murder
claim.
_________________________________________________________________
6 As we understand the government's position, it does not contend that
the person in state prison was Talley's accomplice in murdering the
driver of the car. At oral argument we asked the prosecutor why he
accused Talley of murder when he (the prosecutor) knew someone else
had been convicted in state court. The prosecutor repeatedly replied, "We
believed our witnesses." The government's theory that Talley was acting
alone was revealed in the sentencing process. The government objected
to the presentence report because the probation officer had not included
murder as part of Talley's offense conduct. The government "contend-
[ed] that the evidence at trial indicated that Talley was responsible for a
homicide in Grove View Terrace when a cocaine base customer tried to
short-change [him]." J.A. 645. At the sentencing hearing the district
judge questioned the case agent about the government's murder conten-
tion. The agent said that Talley was the "[o]nly shooter." J.A. 107.
According to the agent, the car Talley shot at was seen the next day "a
mile or so from the Grove View Terrace area," id., and a man was found
in the car, dead from a bullet wound. The agent had no evidence that the
bullet matched Talley's gun. Finally, the agent admitted, "We had an
individual from that area that was convicted in state court of that mur-
der." Id. After considering the matter, the district judge refused to attri-
bute any murder to Talley for sentencing purposes.

Talley should not be accused, much less sentenced, for the uncharged
crime of murder on the theory that he was the "only shooter" unless he
has the chance to show that someone else, such as the man who was
already convicted for the crime, did it.

                    12
b.

The second factor relevant to the prejudice determination is
whether the remarks were isolated or extensive. The prosecutor's
argument that Talley was a murderer was not isolated; instead, it was
prominent and thoroughly developed. In both his initial closing argu-
ment and in his rebuttal the prosecutor painted in detail a scene of
Talley killing someone over a drug deal turned sour. The prosecutor
began the murder argument with a reference to the trial testimony of
Perkins and Debnam. He recounted for the jury Perkins and Deb-
nam's testimony about Talley firing at a car that was later found off
the road. The prosecutor then said: "What do you think happened to
the driver of that car. What happened is that William Talley shot him
dead . . . . He killed that man that night for ripping him off for drugs."
J.A. 520. Thus, the prosecutor pitched the murder argument as if there
was specific trial testimony to support it. Moreover, in the closing
minute or two of his rebuttal -- the last argument the jury heard --
the prosecutor said he had one more thing about Talley "to sort of
close it up." J.A. 561. The prosecutor's final point about Talley was
to accuse him again of murder. The prosecutor urged the jury, "Use
your common sense" and "draw your own conclusions" about what
happened after "Mr. Talley fired at that car." J.A. 562. That was the
last thing the jury heard from the lawyers about Talley.

The prosecutor's murder argument and the Perkins-Debnam testi-
mony about the shot at the car were extensive in the context of what
was offered against Talley in this relatively short trial. The entire trial
testimony, which covered three defendants and eight charges, took
only about eight hours. Accordingly, this is not a case where the
effect of improper conduct was diluted by days of testimony and
argument about other matters.

c.

We next examine the strength of the competent proof against Tal-
ley on the drug possession and conspiracy charges, putting aside the
prosecutor's improper comments.7 Although Talley had $1,500 in
_________________________________________________________________
7 We will not go into detail about the evidence against Talley on the
§ 924(c) gun charge because that charge falls if its predicate offense

                     13
cash when he was arrested, he did not have any drugs. Thus, the only
evidence against Talley on the possession count came from the testi-
mony of Perkins, the convicted (but unsentenced) leader of the Court
Boys organization. On direct examination Perkins testified that
shortly before his arrest Talley gave him a quarter kilogram of pow-
der cocaine. Perkins said he himself hid the cocaine"in the woods for
a while" and was "working on selling it" right before he was arrested.
J.A. 215. On cross-examination Perkins reiterated that he did not sell
this cocaine before he was arrested, although he said, "I could have."
J.A. 261. In the next breath, however, Perkins said he did give Talley
"some [$4,000] of the money off of it," indicating that a portion had
been sold. J.A. 261. Perkins's testimony on cross and redirect con-
tains other contradictions. He was asked on cross where the quarter
kilogram was located, and he answered, "Ask Norm[Wilson] . . .
[c]ause . . . I gave him the drugs when I buy 'em." J.A. 261. On redi-
rect Perkins confirmed that when he "bought . . . powder cocaine, . . .
no matter what quantity, no matter when it was," he gave it to Nor-
man Wilson, who was solely responsible for cooking, packaging, and
distributing the crack product to street dealers. J.A. 285.

Perkins was the key witness against Talley on the conspiracy
charge. Perkins's conspiracy testimony against Talley was not exten-
sive, but it was direct. Perkins testified that for several years he sold
$1,000 packages (forty "rocks") of crack cocaine to Talley, who was
a street dealer. Perkins said that Talley got as"much as he could sell"
and that it took him three to four hours to sell forty rocks. J.A. 185-
86. Talley's lawyer did not directly challenge this testimony on cross-
examination. Instead, he had Perkins explain that he was testifying
under a plea agreement. Perkins admitted that after he was arrested
he tried to get the best deal he could and that he was cooperating with
the government to avoid a life sentence.

We do not believe it was readily apparent during Perkins's testi-
mony that the prosecutor was using Perkins to lay out a circumstantial
case of murder against Talley. Thus, Talley's lawyer had no reason
_________________________________________________________________
(conspiracy) falls. We do note that the gun charge had nothing to do with
the shooting incident that led to the murder argument. Instead, it related
to a gun found under the passenger seat of Talley's car right after his pas-
senger (and alleged co-conspirator), James Rodney Smith, was arrested.

                     14
to try to establish on cross-examination that Talley was not a mur-
derer. The lack of notice on the true purpose of Perkins's testimony
concerning Talley's shot at the car effectively shielded Perkins from
any cross-examination on the point that someone other than Talley
might have murdered the man.

There was other evidence of Talley's involvement in the drug con-
spiracy. Earl Thornton, Perkins's principal supplier, who had received
a ten-year sentence that he hoped to get reduced by cooperating, also
testified against Talley. Thornton said he sold 500 grams of cocaine
directly to Talley in 1989 and made other sales again in 1993. Steve
Evans, who admitted to delivering packaged crack to street dealers for
Perkins and Norman Wilson, said he had delivered packages of crack
to Talley, but not "that . . . often." J.A. 338. Richard Whitlock said
he sold crack alongside Talley and others in Grove View Terrace. J.A.
410. Evans and Whitlock also were aiming to get a lighter sentence
by cooperating and testifying.

In sum, the possession case against Talley was weakened some-
what by Perkins's defensiveness and inconsistency on cross-
examination. The conspiracy case was strong, but Talley was
deprived of the chance to develop and use the best ammunition (that
someone else committed the murder) to cross-examine the main wit-
ness about what the prosecutor improperly highlighted as evidence of
murder.

d.

We now turn to whether the prosecutor deliberately placed the
murder argument before the jury to divert its attention to extraneous
matters. When the prosecutor detailed his case against Talley through
the direct examination of his first (and principal) witness, Perkins,
there was no mention whatsoever of Talley shooting at a car after a
curbside drug deal went awry. It was only after Perkins stumbled on
cross-examination that the prosecutor began redirect by asking Per-
kins about Talley's gun use on that occasion.8 Later, the prosecutor
_________________________________________________________________
8 Although the questioning of Perkins about the shooting incident went
beyond the scope of cross-examination, it was allowed over the objection
of Talley's lawyer.

                    15
covered the same incident with direct testimony from another witness,
Debnam. The trial judge, however, refused to let Debnam testify
about what happened to the driver of the car. In all events, the prose-
cutor had plenty of time to consider whether to turn the "shot at the
car" testimony into a murder charge against Talley. After Debnam
testified, there was an intervening night, another day of trial and a
second intervening night before closing argument. The murder argu-
ment therefore was not a comment made in the heat of the moment.
Instead, it appears to have been a deliberate, calculated decision to
assert facts not in evidence in order to divert the jury from the real
issues in the case.

e.

The next factor, whether the prosecutor's remarks were invited by
the conduct of defense counsel, may be dealt with quickly. There is
simply no hint in the record that defense counsel did anything to
invite the prosecutor to say Talley was a murderer.

f.

Finally, we ask if any curative instructions were given to the jury.
In his charge the trial judge did remind the jury that the defendants
were not on trial for charges not alleged in the indictment. A short
time earlier, however, the trial judge twice overruled defense coun-
sel's objection to the prosecutor's fully developed argument that Tal-
ley committed murder. In the circumstances, we believe that the
general instruction was insufficient to cause the jury to disregard the
specific argument that Talley was a murderer.

g.

After considering all of these factors, we conclude that the prosecu-
tor's improper closing remarks "prejudicially affected [Talley's] sub-
stantial rights so as to deprive [him] of a fair trial." Mitchell, 1 F.3d
at 242 (internal quotation marks and citation omitted). We reach this
conclusion fully recognizing that the drug trafficking evidence against
Talley was strong (see II.B.2.c., supra ). The problem is that the prose-
cutor did not stop with just that evidence. He engaged in a significant

                    16
diversion with the argument that Talley was a murderer. That argu-
ment was extraneous and indefensible overkill that we cannot write
off as harmless. The prosecutor insisted to the jury that Perkins and
Debnam had provided substantive evidence of murder with their testi-
mony that Talley shot at a car. But this testimony did not reasonably
support an inference that Talley had killed the driver. Moreover, as
we have said, the murder accusation came as a last-minute surprise
after it was too late for Talley to develop and offer a factual defense,
a defense that appeared to be available. The prosecutor's methods and
argument have caused most of the factors in the prejudice equation to
weigh heavily against the government. As a result, we believe the risk
is too great that Talley was convicted because the jury thought he was
a murderer, a reason wholly irrelevant to his guilt or innocence on the
charges in the indictment. We therefore reverse Talley's convictions
on all counts and remand for a new trial as to him.

III.

We now examine the contentions of the other two defendants,
beginning with Norman Wilson's challenge to his conviction and sen-
tence for engaging in a continuing criminal enterprise (CCE) in viola-
tion of 21 U.S.C. § 848.

A.

Norman Wilson argues that there is insufficient evidence to support
his CCE conviction. The government must prove the following five
elements on a CCE charge:

          (1) defendant committed a felony violation of the federal
          drug laws; (2) such violation was part of a continuing series
          of violations of the drug laws; (3) the series of violations
          were undertaken by defendant in concert with five or more
          persons; (4) defendant served as an organizer or supervisor,
          or in another management capacity with respect to these
          other persons; and (5) defendant derived substantial income
          or resources from the continuing series of violations.

United States v. Ricks, 882 F.2d 885, 890-91 (4th Cir. 1989). Norman
Wilson focuses just on the fourth and fifth elements, arguing that the
evidence was insufficient as to them. We disagree.

                    17
In reviewing the sufficiency of the evidence on a criminal convic-
tion, we must sustain the jury's verdict "if there is substantial evi-
dence, taking the view most favorable to the Government, to support
it." Glasser v. United States, 315 U.S. 60, 80 (1942).

The fourth CCE element calls for a defendant to be an organizer,
supervisor, or manager. Norman Wilson contends that the evidence at
best established that he was just one of many sellers for Ronald Per-
kins. Perkins and his suppliers were the organizers and managers,
according to Wilson. We must give CCE's management requirement
a "common-sense reading," bearing in mind that the statute "is
designed to reach the `top brass' in the drug rings, not the lieutenants
and foot soldiers." Garrett v. United States , 471 U.S. 773, 781 (1985).
Perkins testified that he and Norman Wilson were in the drug busi-
ness together for over nine years. Steve Evans, Kelly Debnam, and
Michael Whitlock all testified that they sold crack for Norman Wil-
son, and they each named other persons who also sold crack for Wil-
son. Perkins, Earl Thornton (the principal supplier of crack to the
Court Boys organization), and Steve Evans all identified Norman
Wilson as Perkins's partner. Perkins said, "I would basically go get
the cocaine. I always been the one to go get it. And when I'd get it
I'd give it to Stormy [Norman Wilson], and he'll handle it from
there." J.A. 177. These facts provide substantial evidence that Nor-
man Wilson was one of the "top brass" in the organization.

Norman Wilson also claims a failure of proof on the fifth CCE ele-
ment, contending there was no evidence that he received substantial
income or resources from a series of drug trafficking violations. In
essence, Norman Wilson claims that he earned no more than street
level sellers. Perkins, however, testified that he and Norman Wilson
could make $60,000 to $70,000 profit on each kilogram of powder
cocaine they bought. For a time Thornton supplied the organization
with at least one kilogram a week. This is sufficient to prove that Nor-
man Wilson derived substantial income from a series of drug traffick-
ing violations.

Accordingly, we reject Norman Wilson's sufficiency-of-the-
evidence challenge to his CCE conviction.

                    18
B.

Norman Wilson next asserts, and the government agrees, that his
conviction for conspiracy to possess with intent to distribute crack
must be vacated because the conspiracy was expressly alleged and
proved as a predicate offense for his CCE conviction. The parties are
correct. A defendant convicted under 21 U.S.C. § 848 (CCE) cannot,
in addition, be convicted for any predicate conspiracy charges proved
as elements of the § 848 offense. Rutledge v. United States, 116 S. Ct.
1241 (1996); United States v. Johnson, 54 F.3d 1150, 1162-63 (4th
Cir. 1995). Accordingly, we remand to the district court with instruc-
tions to vacate Norman Wilson's conspiracy conviction and his result-
ing sentence on that count.

C.

Norman Wilson also argues that the life sentence he received for
his CCE conviction is unconstitutional because it denied him equal
protection and due process and is cruel and unusual punishment. He
bases this claim on the fact that he had no prior felony drug convic-
tions and had only one prior felony conviction (in 1982) for which he
was sentenced to probation. This argument is foreclosed. A life sen-
tence is not unconstitutionally disproportionate to a first time drug
offense. Johnson, 54 F.3d at 1164.

IV.

William Wilson and Norman Wilson argue that they are entitled to
a new trial on their firearms (§ 924(c)) convictions under count six
because the jury instructions on what constitutes"use" of a firearm
were erroneous in light of Bailey v. United States, 116 S. Ct. 501
(1995), which was decided after they were tried. In Bailey the
Supreme Court narrowed the meaning of the term "uses" in § 924(c).
The Court ruled that proving "use" requires"evidence to show an
active employment of the firearm by the defendant." Id. at 505
(emphasis in original). "The active-employment understanding of
`use' certainly includes brandishing, displaying, bartering, striking
with, and most obviously, firing or attempting to fire, a firearm." Id.
at 508. "`[U]se' must connote more than mere possession." Id. at 506.

                    19
Thus, a person does not "use" a gun merely by concealing it "nearby
to be at the ready for an imminent confrontation." Id. at 508.

The district court here instructed the jury that"`uses' means the
knowing possession of the firearm for security regardless of whether
the weapon is ever referred to, displayed, pointed or fired." J.A. 582.
The court further instructed that "use" could be proved by a gun's
"presence and availability in light of an evident need" or simply by
its "availab[ility] to assist or aid in the commission of a drug traffick-
ing crime." Id.

It is quite apparent that the district court's "use" instruction, while
correct under Fourth Circuit precedent at the time, was plainly errone-
ous in light of Bailey. However, even if we assume that the error
affected William Wilson and Norman Wilson's substantial rights, see
Johnson v. United States, 117 S. Ct. 1544, 1550 (1997), we would
exercise our discretion to correct the error only if"failure to do so
would result in a miscarriage of justice, such as when . . . the error
`seriously affect[s] the fairness, integrity or public reputation of judi-
cial proceedings,'" United States v. Hastings , No. 94-5670, slip op. at
15 (4th Cir. Jan. 14, 1998) (quoting United States v. David, 83 F.3d
638, 647 (4th Cir. 1996)). Here, the erroneous use instruction did not
result in a miscarriage of justice because, as we demonstrate below,
the jury, in convicting the Wilsons on count six, necessarily found
gun use in the post-Bailey sense.

We begin by looking at what count six charged. It charged six
members of the Court Boys drug ring of "us[ing] and carry[ing] a
firearm during and in relation to a drug trafficking crime" on a single
day, August 18, 1993. J.A. 60. Although neither William Wilson nor
Norman Wilson actually used or carried a gun during the event giving
rise to this charge, the government contends that William Wilson is
guilty as an aider and abettor and Norman Wilson is guilty through
conspirator liability.

The government's firearms evidence on count six is limited to a
single event that lasted about one-half hour on the night of August 18,
1993, the date mentioned in that count.

An item of background information is necessary for an understand-
ing of the gun incident on August 18. Members of the Court Boys

                     20
drug ring had been using the apartment of Erica Hall, located at 95
Grove View Terrace, as a safe haven during police sweeps of the
projects. Ms. Hall, however, decided that she no longer wanted her
apartment to be used as a hideout, and her live-in boyfriend, David
Williams, informed the gang of her wishes. Ms. Hall did extend visit-
ing privileges to William Wilson, but she told him not to "let [the oth-
ers] back in [her] house." J.A. 213.

We return to the night of August 18, 1993, when several members
of the ring (mainly street dealers), who were carrying on their drug
business in Grove View Terrace, got word of a police sweep. The
group went immediately to Ms. Hall's apartment, ignoring her earlier
admonition. They were met at the door by William Wilson, who had
been at Ms. Hall's apartment taking a nap. Although Wilson knew of
Ms. Hall's wishes, he let the group (seven persons) enter. Three of the
entering group were carrying firearms, including a rifle and two hand-
guns. When they arrived, David Williams, Ms. Hall's boyfriend, was
in an upstairs bedroom. Several in the gang went immediately upstairs
and began to beat Williams, using the guns, a broomstick, and an
electric fan. After the beating had gone on for five or ten minutes, one
armed member of the gang forced another member at gunpoint to par-
ticipate in the assault. The severe beating of Williams was in retalia-
tion for his and Hall's efforts to end the use of the apartment as a safe
haven. Although William Wilson was present during the beating, he
did not strike Williams. During a lull, however, William Wilson told
Williams, "I should f--- you up too for messing with my stash." J.A.
458. The beating lasted about one-half hour, and the men then left the
apartment. There was no evidence that any guns were being stored in
the apartment on August 18.

Based on this evidence, we are satisfied that the guilty verdict on
count six was not attributable to the erroneous"use" instruction.
Again, the incident lasted for only one-half hour. The only evidence
about use was active use involving pistol whipping and brandishment.
This is use in the post-Bailey sense of the word. Moreover, there is
no evidence of storage, mere possession, or any inactive "use" that
would have qualified as use before Bailey. In sum, we are convinced
that the jury made a finding of use as it is understood post-Bailey.

William Wilson argues that the evidence did not establish that he
aided and abetted a § 924(c) violation on August 18, 1993. "To be

                     21
convicted of aiding and abetting, participation in every stage of an
illegal venture is not required, only `participation at some stage
accompanied by knowledge of the result and intent to bring about that
result.'" United States v. Arrington, 719 F.2d 701, 705 (4th Cir. 1983)
(quoting United States v. Hathaway, 534 F.2d 386, 399 (1976)). As
we just demonstrated, there is evidence that William Wilson's asso-
ciates used firearms in the post-Bailey sense. We also believe there
is evidence to support his firearms conviction based on aiding and
abetting. William Wilson knew of the pistol whipping of David Wil-
liams because he (Wilson) saw it happen. He made it possible by
admitting the perpetrators into Ms. Hall's apartment despite her spe-
cific instruction that he "not let them back in[her] house." J.A. 213.
During a lull in the beating William Wilson told the victim that he,
too, should have participated in the assault. Wilson then stood by and
watched as the pistol whipping resumed. It can be reasonably inferred
from all of this that William Wilson had the requisite intent to "bring
about" the pistol whipping of David Williams. There is sufficient evi-
dence to support William Wilson's conviction as an aider and abettor
under § 924(c).

Norman Wilson argues that there is insufficient evidence to convict
him of the § 924(c) violation (count six) on the basis of Pinkerton lia-
bility. See Pinkerton v. United States, 328 U.S. 640, 646-47 (1946)
(holding fellow conspirators liable for substantive offenses committed
by a co-conspirator in furtherance of the conspiracy). A defendant
may be convicted of a § 924(c) charge on the basis of a co-
conspirator's use of a gun if the use was in furtherance of the conspir-
acy and was reasonably foreseeable to the defendant. United States v.
Chorman, 910 F.2d 102, 110-11 (4th Cir. 1990). Several of Norman
Wilson's co-conspirators used firearms to club David Williams. The
evidence supports a finding that this gun use was in furtherance of the
drug conspiracy. Erica Hall's apartment had been a vital safe house
for the Court Boys conspiracy for some time. The aims of the conspir-
acy were furthered by the co-conspirators' use of guns against some-
one (Williams) who had tried to deprive the conspirators of a needed
hideout. And, as the prosecutor argued to the jury, it is reasonable to
infer that such an active employment of guns would be foreseeable to
the absent co-conspirator, Norman Wilson. Indeed, Norman Wilson
got involved in the matter at a later date when he threatened one of
David Williams's attackers whom Wilson believed had snitched to

                    22
the police about the beating. Accordingly, there was sufficient evi-
dence to find Norman Wilson guilty of a § 924(c) violation under
Pinkerton.

V.

Norman Wilson and William Wilson also argue that the district
court erred in admitting four photographs offered by the government
to illustrate the results of the gun use charged to them in count six.
The photographs were of David Williams, the man who was pistol
whipped by certain members of the drug ring on August 18, 1993.
The photographs, taken right after the beating, show cuts, bruises, and
swelling on Williams's face, arms, and back. The Wilsons argue that
the photographs were of marginal relevance and should have been
excluded because their "probative value [was] substantially out-
weighed by the danger of unfair prejudice." Fed. R. Evid. 403.

The photographs were probative on count six's § 924(c) charge
because they revealed the extent to which Williams was pistol
whipped by several Court Boys. The trial judge balanced the proba-
tive value of the photographs against their potential for unfair preju-
dice, and his decision to admit them must stand unless there was an
abuse of discretion. See United States v. Bailey , 112 F.3d 758, 770
(4th Cir.), cert. denied, 118 S. Ct. 240 (1997). We believe that admit-
ting the photographs was not an abuse of discretion.

VI.

William Wilson argues that there is insufficient evidence to support
his conviction on count one, which charged that he was part of a con-
spiracy to possess crack cocaine with the intent to distribute it. Wil-
liam Wilson contends that if he sold drugs at all,"he did so
infrequently and . . . independently of the [Court Boys] drug organiza-
tion." Appellants' Br. at 42. This argument fails.

Recently, in United States v. Burgos, 94 F.3d 849 (4th Cir. 1996),
cert. denied, 117 S. Ct. 1087 (1997), we outlined the standards for
reviewing a drug conspiracy conviction, beginning with the basics:

                    23
          To prove conspiracy to possess cocaine with intent to dis-
          tribute, the Government must establish that: (1) an agree-
          ment to possess cocaine with intent to distribute existed
          between two or more persons; (2) the defendant knew of the
          conspiracy; and (3) the defendant knowingly and voluntarily
          became a part of this conspiracy.

Id. at 857. We noted that because there is often "little direct evidence
of . . . an agreement . . ., a conspiracy generally is proved by circum-
stantial evidence and the context in which the circumstantial evidence
is adduced." Id. Finally, we reiterated,"[o]nce it has been shown that
a conspiracy exists, the evidence need only establish a slight connec-
tion between the defendant and the conspiracy to support conviction."
Id. at 861 (internal quotation marks and citations omitted).

Here, Ronald Perkins, one of the two ringleaders of the conspiracy,
testified that Norman Wilson, the other ringleader, would sometimes
give drugs to his brother, William Wilson, to sell. Perkins also testi-
fied that he and Norman Wilson gave William Wilson a Jeep. Steve
Evans testified that he had seen William out on the street dealing
crack. Kelly Debnam testified that on a few occasions he sold Wil-
liam Wilson a few $25 rocks (of crack cocaine) for William to resell.
Michael Whitlock testified that in Grove View Terrace, he was "sell-
ing with or working with," among others, William Wilson. J.A. 410.
Finally, William Wilson admitted several of the conspiracy's street
dealers into Erica Hall's apartment and stood by while they savagely
pistol-whipped David Williams. This evidence is sufficient to estab-
lish that William Wilson was a knowing and voluntary participant in
the drug conspiracy, even though he might have operated at the
perimeter.

VII.

Norman Wilson and William Wilson argue that the trial judge's
extensive questioning of government witnesses gave the appearance
of partiality. They do not complain about specific questions. Rather,
they simply contend that the judge asked far too many questions.
According to the Wilsons, the judge assumed the role of prosecutor
and gave the impression that the prosecution witnesses were credible.

                    24
The defendants objected at trial, so we review the trial judge's
interrogation for abuse of discretion. United States v. Castner, 50 F.3d
1267, 1272 (4th Cir. 1995). "The court may interrogate witnesses,
whether called by itself or by a party." Fed. R. Evid. 614(b). A judge
"should not hesitate to ask questions for the purpose of developing the
facts." United States v. Parodi, 703 F.2d 768, 775 (4th Cir. 1983).
However, a judge must not "give . . . the appearance of bias or partial-
ity in any way or become . . . so pervasive in his interruptions and
interrogations that he may appear to usurp the role of either the prose-
cutor or the defendant's counsel." Id. at 776. Here, the district judge
did question witnesses extensively, but the questions mainly elicited
background information about the drug business. In any event, the
judge instructed the jury not to draw any improper inferences from his
questioning. Considering everything, we cannot say that the trial
judge abused his discretion.

VIII.

Finally, Norman Wilson and William Wilson argue that if William
Talley's convictions are vacated because the prosecutor branded him
a murderer, their convictions should also be vacated. Specifically, the
Wilsons say their convictions should be set aside because the jury was
given a Pinkerton instruction and because"it is impossible to gauge
the damage done" to them by the prosecutor's improper argument.
Appellants' Br. at 37. We disagree. The prosecutor did not accuse the
Wilsons of being involved in the murder assigned to Talley, nor did
the prosecutor claim that the murder was a foreseeable act in further-
ance of the conspiracy. The Wilsons are not entitled to a new trial.

IX.

William Talley's convictions are vacated, and his case is remanded
for a new trial. Norman Wilson's conviction on the conspiracy count
is remanded to the district court with instructions to vacate his convic-
tion (and its accompanying sentence) on that one count. Norman Wil-
son's remaining convictions and William Wilson's convictions are
affirmed.

AFFIRMED IN PART, VACATED AND
REMANDED IN PART, AND VACATED AND
REMANDED IN PART WITH INSTRUCTIONS

                    25
