                                          Filed:     November 4, 1997


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                           Nos. 95-5266(L)
                             (CR-94-106)



United States of America,

                                                 Plaintiff - Appellee,

           versus

Jermaine Lavonne Chase, et al,

                                             Defendants - Appellants.




                              O R D E R


     The Court amends its opinion filed October 23, 1997, as

follows:
     On the cover sheet, section 2 -- the case number for the first

appeal is corrected to read "No. 9 5-5266."

                                       For the Court - By Direction



                                          /s/ Patricia S. Connor

                                                      Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                  No. 95-5266

JERMAINE LAVONNE CHASE,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                  No. 95-5290

PATRICK EARL FRANCIS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                  No. 95-5369

CARROLL EUGENE DODSON,
Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CR-94-106)

Argued: April 11, 1997

Decided: October 23, 1997
Before RUSSELL and WIDENER, Circuit Judges, and
DUFFY, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed in part, reversed in part, vacated in part, and remanded by
unpublished opinion. Judge Duffy wrote the opinion, in which Judge
Russell and Judge Widener joined.

_________________________________________________________________

COUNSEL

ARGUED: Robert Paul Dwoskin, Charlottesville, Virginia; J. Lloyd
Snook, III, SNOOK & HAUGHEY, P.C., Charlottesville, Virginia,
for Appellants. Ray B. Fitzgerald, Jr., Assistant United States Attor-
ney, Charlottesville, Virginia, for Appellee. ON BRIEF: Frederick T.
Lieblich, PARKER, MCELWAIN & JACOBS, Charlottesville, Vir-
ginia, for Appellant Francis. Robert P. Crouch, Jr., United States
Attorney, George E. Buzzy, Special Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.

_________________________________________________________________

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

_________________________________________________________________

OPINION

DUFFY, District Judge:

Jermaine Lavonne Chase ("Chase"), Patrick Earl Francis
("Francis"), and Carroll Eugene Dodson ("Dodson") were convicted
of various drug trafficking and firearms offenses in the Western Dis-
trict of Virginia. Chase, Francis, and Dodson raise several issues on
appeal. We affirm in part, reverse in part, vacate in part, and remand
in part.

                    2
I.

A.

Viewing the evidence in the light most favorable to the govern-
ment, United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993), the
evidence establishes the following. Chase, Francis, and Dodson were
part of a crack cocaine distribution operation from sometime before
April 1990, through September 23, 1994, along with twenty-four
other indicted co-conspirators. The crack was sold from two loca-
tions: a house near Danville, Virginia, called "the Fortress" or "the
Shack" and another house in Danville, referred to as the "the Farm."

On January 8, 1993, the Danville Police executed a search warrant
at the Fortress. A team of approximately twelve law enforcement offi-
cers took three to five minutes to enter the building during which time
the officers heard the occupants moving around inside. Upon entering
the building, the officers found the individuals sitting quietly in the
front room. Shortly thereafter, the officers discovered burnt cocaine
in a woodstove and two handguns hidden in a bedroom wall.

B.

Additionally, a search by the law enforcement officers of Chase's
house gives rise to issues on appeal. On August 30, 1994, Chase was
arrested at about 8:00 A.M. as he stepped outside of his house. The
officers entered the house when they heard people moving around
inside after Chase had told them that there were no others present.1
A handgun and a bag of marijuana were observed in the house upon
entry. Subsequently, the police obtained a search warrant. Upon
searching the residence, the police seized the firearm and discovered
about six ounces of cocaine which was also seized.
_________________________________________________________________

1 Although the evidence is in conflict on this point, the district court
appears to have resolved the factual disputes in favor of the police offi-
cers and will be reversed only if those findings are clearly erroneous.
United States v. Jones, 913 F.2d 174, 176 (4th Cir. 1990), cert. denied,
498 U.S. 1052 (1991). We do not find these determinations by the dis-
trict court to have been clearly erroneous.

                    3
II.

Chase contends that the search of his house was violative of the
Fourth Amendment because his arrest took place outside of the house.
The government asserts that the initial entry into the house was justi-
fied because the officers heard people inside the house after Chase
had told them that there were no others present.

Police officers may conduct a protective sweep of a location as a
precautionary matter without probable cause or reasonable suspicion.
Maryland v. Buie, 494 U.S. 325, 334 (1990). An arresting officer is
free to search areas "immediately adjoining the place of arrest from
which an attack could be immediately launched." Id. "[I]f the search-
ing officer possesse[d] a reasonable belief based on specific and
articulable facts which, taken together with the rational inferences
from those facts, reasonably warrant[ed] the officer in believing that
the area swept harbored an individual posing a danger to the officers
or others," the search is not violative of the Fourth Amendment. Id.,
494 U.S. at 327 (citations omitted). In the present case, the arresting
officers heard people inside the house after Chase told them that there
were none. Thus, we find that it was reasonable for the officers to
believe that the area posed a potential danger.

III.

A.

Dodson challenges the sufficiency of the evidence concerning his
conviction for engaging in a continuing criminal enterprise ("CCE").
A challenge to the sufficiency of the evidence is reviewed as to
whether there is substantial evidence from which the jury could find
the defendant guilty beyond a reasonable doubt. United States v.
Arrington, 719 F.2d 701, 704 (4th Cir. 1983), cert. denied, 465 U.S.
1028 (1984).

The government is required to prove five elements to support a
CCE conviction: (1) the defendant committed a felony violation of the
federal drug laws; (2) the violation was part of a continuing series of
violations of the drug laws; (3) the series of violations was undertaken

                    4
by the defendant in concert with five or more persons; (4) the defen-
dant served in an organizational, supervisory, or management capac-
ity with respect to these other persons; and (5) the defendant derived
substantial income or resources from the series of violations. United
States v. Ricks, 882 F.2d 885, 890 (4th Cir. 1989), cert. denied, 493
U.S. 1047 (1990). Dodson argues that there was no evidence that he
served as an organizer, supervisor, or manager of more than five indi-
viduals. Numerous witnesses, however, testified at trial that Dodson
was responsible for leading, organizing and managing the cocaine
conspiracy. The evidence need not show that Dodson directly super-
vised five individuals contemporaneously or that the five individuals
were collectively engaged in any specific offense, only that Dodson
occupied a management position in the enterprise. Id. at 891; see also
United States v. Heater, 63 F.3d 311, 317 (4th Cir. 1995), cert.
denied, 116 S. Ct. 796 (1996) (It is not required that the government
show that the defendant had personal contact with five people because
organizational authority is delegable.). Therefore, we find substantial
evidence to support Dodson's CCE conviction.

B.

Dodson additionally contests an alleged sentence enhancement for
possession of a firearm. However, the district court expressly consid-
ered and declined any such enhancement. J.A. at 1631.

IV.

Francis challenges the sufficiency of the evidence as to his drug
conspiracy conviction and his conviction for aiding and abetting the
distribution of cocaine.2

A.

In order to prove conspiracy to possess cocaine with the intent to
distribute, the government must establish (1) an agreement to possess
_________________________________________________________________

2 As stated above, in assessing the sufficiency of the evidence, we are
to determine whether there is substantial evidence from which the jury
could find the defendant guilty beyond a reasonable doubt. Arrington,
719 F.2d at 704.

                    5
cocaine with the intent to distribute between two or more persons; (2)
that the defendant knew of the conspiracy; and (3) that the defendant
knowingly and voluntarily became part of the conspiracy. United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996), cert. denied, 117
S. Ct. 1087 (1997). Essentially, Francis asserts that the testimony
about his participation was not credible. However, after a jury has
returned a verdict of guilty, this court is not to weigh evidence nor
review the credibility of witnesses. Arrington, 719 F.2d at 704. Upon
reviewing the record, we find that substantial evidence exists to sup-
port the jury's verdict, including testimony that Francis was in fact
one of the organizational leaders of the conspiracy.

B.

As to Francis' conviction for aiding and abetting the distribution of
cocaine, the jury could easily have found that all persons within the
Fortress that evening were actively and knowingly engaged in pos-
sessing cocaine with the intent to distribute, thus aiding and abetting
such distributions. The jury heard significant testimony concerning
how the Fortress had been modified and equipped for the purpose of
crack distribution as well as testimony about drug transactions which
took place there. Accordingly, we find that the jury's verdict that
Francis was guilty of aiding and abetting the distribution of cocaine
should be upheld.

C.

Francis also asserts that the district court did not resolve all factual
disputes and objections regarding the presentence report raised in
documents filed the day before he was sentenced. We review factual
determinations relating to sentencing for clear error. United States v.
Blake, 81 F.3d 498, 503 (4th Cir. 1996).

Francis contests the weight of the drugs; however, the record
shows that the district court considered extensive evidence concerning
the factual basis supporting the probation officer's conclusion, and we
agree with its determination that there were at least 2.2 kilograms of
crack cocaine involved in the subject offenses.

                    6
Additionally, Francis questions the district court's consideration of
prior drug convictions as felonies; however, the only evidence or
argument given to support this position is Francis' bald and conclu-
sory statement that his prior convictions "are indeed misdemeanors."
This is insufficient to find clear error by the district court.

V.

Chase challenges his convictions under 18 U.S.C. § 924(c)(1) for
using or carrying a firearm in relation to a drug trafficking offense
and for aiding or abetting one or more persons who used or carried
a firearm in relation to a drug trafficking offense. To support the con-
viction, the government must show that the defendant: (1) used or car-
ried a firearm and (2) did so during and in relation to a drug
trafficking offense or crime of violence. United States v. Mitchell, 104
F.3d 649, 652 (4th Cir. 1997) (citations omitted).

The recent Supreme Court decision in Bailey v. United States, 116
S. Ct. 501 (1995), clarified what constitutes "use" of a firearm during
drug trafficking under § 924(c)(1), holding that liability "attaches to
cases of actual use, not intended use, as when an offender places a
firearm with the intent to use it later if necessary." Id. at 507. The
Court stated:

        [t]he active-employment understanding of "use" certainly
        includes brandishing, displaying, bartering, striking with,
        and most obviously, firing or attempting to fire a firearm.
        . . . Thus, a reference to a firearm calculated to bring about
        a change in the circumstances of the predicate offense is a
        "use," just as the silent but obvious forceful presence of a
        gun on a table can be a "use."

Id. at 508. As to his conviction on the August 30, 1994 charge, Count
69, the evidence is clearly insufficient to convict Chase of using or
carrying a firearm. The subject handgun was seized incident to a
search warrant executed at Chase's residence. In light of Bailey, the
government concedes that the placement of a gun on a nightstand in
a room where drugs are present is not active employment in relation
to a drug trafficking crime. Accordingly, we reverse Chase's convic-
tion for using and carrying a gun on August 30, 1994.

                    7
As to his conviction on the January 8, 1993 charge, Count 5, the
government asserts that there is sufficient evidence to support a con-
viction under both the "carry" prong of § 924(c)(1) and "use" as
defined in Bailey. However, irrespective of the evidence before the
jury, the court must determine whether the instructions received by
the jury ensured a constitutional verdict. United States v. Smith, 94
F.3d 122, 124 (4th Cir. 1996). The jury was instructed that it could
convict Chase under § 924(c)(1) if he had used or carried the firearm
at issue during a drug trafficking offense as follows:

        [I]f a firearm plays any role in the drug felony, if it facili-
        tates the crime in any way, it is being used in the crime in
        the sense that it has been charged under this indictment.
        Moreover, if the firearm's role is only a passive one, such
        as being possessed for security or for contingencies, that
        would constitute use or possessing during a drug trafficking
        offense, and again, the phrase "use" or "carries a firearm"
        means having a firearm or firearms available to assist or aid
        in determining whether the Defendant used or carried a fire-
        arm, you may consider all of the factors received into evi-
        dence, including the nature of the underlying drug
        trafficking crime, as alleged, the proximity of the defendant
        to the firearm in question, and the usefulness of a firearm to
        the crime alleged, and the circumstances surrounding the
        presence of the firearm. The Government is not required to
        show that the defendant actually displayed or fired the
        weapon. The Government is required, however, to prove
        beyond a reasonable doubt that the firearm was in the defen-
        dant's possession, or under the defendant's control, at the
        time of the drug trafficking offense.

Although consistent with prior precedent in this circuit, this instruc-
tion is clearly inconsistent with Bailey which requires that a firearm
be actively employed to constitute "use" under § 924(c)(1). See
Bailey, 116 S. Ct. at 506. If the jury was improperly instructed as to
an essential element of an offense, the subsequent conviction must be
set aside, unless the court finds beyond a reasonable doubt, "that the
jury actually made the finding that inheres in the element." Smith, 94
F.3d at 124 (citations omitted). Because the jury was instructed as to
both "using" and "carrying" a firearm, we cannot know under which

                    8
prong of § 924(c)(1) Chase was convicted. Thus, his conviction as to
January 8, 1993, must be vacated. Chase may be retried at the govern-
ment's option. Smith, 94 F.3d at 125; United States v. Hawthorne, 94
F.3d 118, 121 (4th Cir. 1996).3

In light of our reversing one of Chase's convictions under
§ 924(c)(1) and vacating the other, we must also vacate his sentence.
Should the government elect not to retry Chase on the January 8,
1993 charge, it may proceed directly to resentencing and seek the
"possession" enhancement provided by United States Sentencing
Commission, Guidelines Manual § 2D1.1(b)(1). Smith, 94 F.3d at
125; Hawthorne, 94 F.3d at 122.

VI.

A.

All appellants contest the amount of drugs attributed to them at
their respective sentencings. Factual findings by the district court are
governed by a preponderance of the evidence standard. United States
v. Vinson, 886 F.2d 740, 741-42 (4th Cir. 1989), cert. denied, 493
U.S. 1092 (1990). As stated above, the district court considered exten-
sive evidence concerning the factual support of the probation officer's
conclusion, and we agree with its determination that there were at
least 2.2 kilograms of crack cocaine involved in the subject offenses.
The district court held one hearing involving Francis and Chase and
another hearing involving Dodson in order to individualize the
amount of drugs attributable to each defendant. A review of the tran-
scripts of those hearings reveals that there was more than sufficient
_________________________________________________________________

3 Where the defendant does not object to the instruction at trial, we
review for plain error under Fed. R. Crim. P. 52(b). For there to be plain
error, it must be shown that the error affects the "substantial rights" of
the defendant. United States v. Olano, 507 U.S. 725, 734 (1993).
Whether an error misinstructing the jury as to an essential element of an
offense affected "substantial rights" is subject to harmless error review.
United States v. Johnson, 117 S. Ct. 1544, 1549-50 (1997). In the present
case, we find that the facts do not lend themselves to clearly support the
conviction of Chase as to the January 8th offense. Thus, we cannot con-
clude that the misinstruction did not affect Chase's substantial rights.

                    9
evidence, and certainly a preponderance of the evidence, to support
the finding of the district court that there were at least 2.2 kilograms
of cocaine involved in offenses for which appellants were convicted.

B.

Dodson specifically contends that the district court improperly con-
sidered an offense occurring on March 16, 1994, in determining that
the "relevant conduct" drug weight involved in the subject offenses
was 2.2 kilograms of cocaine base. A review of the record shows that
the district court carefully considered the evidence at Dodson's sen-
tencing in determining the "relevant conduct" drug weight. Although
Dodson was not charged with the March 16 offense in the present
case, the district court was within its discretion to include the weight
of the drugs seized from Dodson at that date in its estimate. See
United States v. Kimberlin, 18 F.3d 1156, 1160 (4th Cir. 1994), cert.
denied, 115 S. Ct. (1995).

VII.

Dodson also contends that the district court improperly denied his
motion for new trial based on newly discovered evidence. We review
the district court's decision not to grant a new trial for an abuse of dis-
cretion. United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995).
The newly discovered evidence upon which Dodson relies consists of
a recantation by one witness, Shirley Law, and affidavits, trial testi-
mony, and correspondence from co-defendants which allegedly refute
the government's case against him.

A.

A new trial based on a recantation by a witness should be granted
when:

        (a) The court is reasonably well satisfied that the testi-
        mony given by a material witness is false.

         (b) That without it the jury might have reached a different
        conclusion (emphasis in original).

                     10
        (c) That the party seeking the new trial was taken by sur-
        prise when the false testimony was given and was unable to
        meet it or did not know of its falsity until after the trial.

United States v. Wallace, 528 F.2d 863, 866 (4th Cir. 1976) (citations
omitted). Law's recantation does not meet the above test because she
merely avers that detectives threatened her if she failed to testify
against Dodson, not that any of her testimony was false.

B.

In order to be granted a new trial based on newly discovered evi-
dence under Fed. R. Crim. P. 33, the following five elements must be
established: (1) the evidence is newly discovered since the trial; (2)
the facts must be alleged from which the court may infer that the
movant exercised due diligence; (3) the evidence being relied upon is
not merely cumulative or impeaching; (4) the evidence must be mate-
rial; and (5) the evidence must be such that it would probably produce
an acquittal at a new trial. Singh, 54 F.3d at 1190 (citations omitted).

None of the additional affidavits submitted by Dodson provide any
exculpatory evidence. This evidence is not material because it merely
refutes the government's witnesses and fails to directly contradict the
government's case. Furthermore, we agree with the district court that
none of the evidence introduced in these affidavits would be likely to
produce an acquittal at a new trial. Therefore, we find that the district
court properly considered and rejected the new evidence as grounds
for a new trial.

VIII.

Finally, all appellants contend that their convictions for conspiracy
to distribute powder cocaine and cocaine base and their convictions
for CCE should be reversed because a special verdict form was not
submitted to the jury distinguishing between the different forms of
cocaine.4 There does not appear to be any ambiguity in the jury's
_________________________________________________________________

4 Dodson's conviction on the conspiracy count was dismissed by the
district court on January 18, 1995, because it was duplicitous of his CCE
conviction.

                    11
finding as to what the basis of their verdict was because the indict-
ment was for violating drug laws by the distribution of both cocaine
hydrochloride and cocaine base. As discussed above, the evidence at
trial established that this group of conspirators sold powder cocaine,
sold crack cocaine, and converted powder to crack to be sold in that
form. While special verdict forms may be used in conspiracy cases
with multiple objectives, United States v. Davila, 964 F.2d 778, 783
(8th Cir.), cert. denied, 113 S. Ct. 438 (1992), it is not the law of this
circuit that a special verdict form is required in a conspiracy or CCE
case with more than one specific objective.

IX.

For the foregoing reasons, we reverse Chase's conviction as to the
August 30, 1994 charge under 18 U.S.C. § 924(c)(1) for having used
or carried a firearm in relation to a drug trafficking crime. His convic-
tion as to the January 8, 1993 charge under the same statute is
vacated, as is his sentence. Accordingly, Chase's case must be
remanded to the district court for further proceedings consistent with
this opinion. We affirm all other convictions.

AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, AND REMANDED

                     12
