     No. 96-2738


United States of America,            *
                                     *
           Appellee,                 *
                                     *
     v.                              *
                                     *
Donald E. McCracken, II,             *
                                     *
           Appellant.                *


                                         Appeals from the United States
     No. 96-2743                         District Court for the
     ___________                         Western District of Missouri.

United States of America,            *
                                     *
           Appellee,                 *
                                     *
     v.                              *
                                     *
Donald E. McCracken, III,            *
                                     *
           Appellant.                *


                        Submitted: January 15, 1997
                            Filed: April 2, 1997



Before WOLLMAN, and HANSEN, Circuit Judges, and MONTGOMERY,1        District
Judge.



MONTGOMERY, District Judge.


     Donald E. McCracken, II and Donald E. McCracken, III, appeal their
convictions and sentences on drug charges.   Both defendants challenge the
sufficiency of the evidence to support their




     1
     The Honorable Ann D. Montgomery, United States District
Judge for the District of Minnesota, sitting by designation.
convictions and the admission into evidence of statements made by Donald
E.   McCracken,         II.      Defendants      also    contest    the   district      court’s2
application of the two-level enhancement for possession of firearms in
connection with a drug offense pursuant to U.S.S.G. § 2D1.1(b)(1).                         Upon
review, we affirm the convictions and the sentences.


I.       BACKGROUND


         On    August    27,    1994,   Detective       Jeffery    Seever,    working    in   an
undercover capacity for the Jackson County Drug Task Force, was introduced
by   a        contact    to    Scott    Walker     for    the     purposes    of    purchasing
methamphetamine.              Walker made a brief phone call and then informed
Detective Seever that he could obtain methamphetamine.                             Walker then
directed Detective Seever to drive to 11505 Grandview, Kansas City,
Missouri.


         Detective Seever and Walker entered the house at 11505 Grandview
where defendant Donald E. McCracken, III (“McCracken Junior”) was seated
on a couch in the living room.                McCracken Junior’s girlfriend, Carmen
Radford, was also present in the house.                   Walker sat on a chair next to
McCracken Junior, while Detective Seever sat on the other side of the room.
Walker and McCracken Junior spoke to each other in quiet tones such that
Detective Seever could not overhear their conversation.                      McCracken Junior
and Walker then left the living room and walked toward the southeast part
of the residence.


         A short time later, Walker returned to the living room and presented
to Detective Seever a substance which Walker represented




         2
     The Honorable Fernando J. Gaitan, Jr., United States
District Judge for the Western District of Missouri.

                                              -2-
to be a half-ounce of methamphetamine.       Walker informed Detective Seever
that the cost of the methamphetamine was $1,150.            Detective Seever paid
Walker $650 for his portion of the methamphetamine and Walker returned to
the southeast part of the house.     Walker eventually returned to the living
room with a blue parcel later determined to be methamphetamine wrapped in
blue gauze.


        Detective Seever and Walker were leaving the residence when Defendant
Donald E. McCracken, II (“McCracken Senior”) and his girlfriend, Melissa
Fox, arrived and entered the residence.      McCracken Senior asked Detective
Seever and Walker if they had noticed the police car parked in the vicinity
of the house.    McCracken Senior then advised Detective Seever and Walker
that if the police pursued them, they should flee in order to dispose of
the methamphetamine.     McCracken Senior recommended that “it’s better to
have a car charge than a Class A or B felony drug charge.”


        Detective Seever and Walker left the residence and Detective Seever
received his portion of the methamphetamine.       Detective Seever returned to
the Task Force headquarters where the substance was tested and proved to
be 7.7 grams of methamphetamine.


        Subsequently, on August 29, 1994, Detective Seever obtained a search
warrant for 11505 Grandview.    The search warrant was executed on September
2, 1994.    Six individuals were present at the residence during the search,
including McCracken Junior, Melissa Fox and Carmen Radford.              McCracken
Senior was not present during the search.          McCracken Junior was in the
living room when officers first entered the residence.             From the living
room,    officers   recovered   a   loaded   9mm   pistol    and   six   grams   of
methamphetamine.




                                      -3-
        Officers searched the southwest bedroom of the house where they
recovered two loaded firearms: (1) an assault rifle mounted over the
archway of the bedroom door with one round in the chamber and a magazine
holding 31 rounds, and (2) a .45 caliber handgun in a holster nailed to the
headboard of the bed containing a magazine loaded with six rounds.
Officers also recovered from a heater located a few feet from the bed, four
small packages wrapped in blue gauze containing a combined total of 110
grams of methamphetamine.     In the bedroom closet officers recovered a box
with the name “Don McCracken” on it, as well as men’s clothing bearing
emblems such as “Shadow,” “S and G” and “FYVM.”             Detective Seever’s
investigation ultimately determined that “Shadow” was a nickname for
McCracken Senior, and that “S and G” and “FYVM” were              abbreviations
relating    to   McCracken   Senior’s   business.    Officers   also   discovered
photograph albums containing pictures of McCracken Senior as well as a
photograph of Melissa Fox on the headboard of the bed.


        Officers also searched the northeast bedroom of the residence.
Officers discovered a pair of jeans containing $1,420 in United States
currency and a billfold holding identification documents of McCracken
Junior.    The bedroom closet contained two safes.      One safe held more than
$30,000 in United States currency.            The money was divided into three
bundles wrapped in blue gauze.     The safe also contained an envelope marked
“Pistol,” a nickname for McCracken Junior, and documents with the name of
“Donald E. McCracken, II” on the front cover as well as a key chain marked
“Shadow Motorcycle.”    The second safe contained seven to eight collector’s
guns.     A search of the southeast bedroom revealed a set of electronic
scales and multiple rolls of small plastic bags.           A safe in the room
contained a box labeled “Shadow.”




                                        -4-
     A few months later, on March 10, 1995, Officers conducted a search
of 9625 Grandview, Kansas City, Missouri.     McCracken Senior was present
during the search.     A search of the attic area of the residence produced
three bags.     One bag contained four packages wrapped in black tape.   The
packages consisted of a total of 110 grams of methamphetamine.    The other
two bags contained 25 grams of methamphetamine and $5,200 in United States
currency.


     Officers also searched the northeast bedroom of this residence and
discovered a safe containing a book bearing the name “Shadow.”      Located
inside the book was a copy of the earlier search warrant for 11505
Grandview and credit cards imprinted with the name “Donald McCracken” on
them as well as the abbreviations “S an G” and “FYVM.”   Officers discovered
a semi-automatic handgun with a loaded magazine hanging over the headboard
of the bed.     In the living room, officers found a wallet with a Missouri
drivers license for “Donald E. McCracken” and $1,060 in United States
currency.     Officers also discovered 3.9 grams of methamphetamine on the
coffee table.


     Detective Steve Santoli interviewed McCracken Senior at the residence
during the search.     McCracken Senior told Detective Santoli that he had
been living at 9625 Grandview for approximately two months.


     On May 25, 1995, defendants were charged in a five count indictment.
Following the trial, McCracken Senior was convicted of conspiracy to
distribute and to possess with intent to distribute methamphetamine in
violation of 21 U.S.C. § 846 and two counts of possession with intent to
distribute methamphetamine in violation




                                     -5-
of 21 U.S.C. § 841(a)(1).3   The district court sentenced him to a term of
imprisonment of 117 months and five years supervised release.     McCracken
Junior was convicted of conspiracy to distribute and to possess with intent
to distribute methamphetamine in violation of 21 U.S.C. § 846(a)(1) and
aiding and abetting the distribution of methamphetamine in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2.       The district court sentenced
McCracken Junior to 78 months incarceration and five years supervised
release.   Defendants now appeal the convictions and sentences.


     II.    DISCUSSION


     A)     Sufficiency of the Evidence


     Both defendants challenge the sufficiency of the evidence with regard
to the conspiracy convictions.      McCracken Junior also challenges the
sufficiency of the evidence with respect to his conviction of aiding and
abetting distribution of methamphetamine.      McCracken Senior similarly
contends the evidence was insufficient with respect to his convictions for
possession with intent to distribute methamphetamine.


     In reviewing a sufficiency of the evidence claim, we view the
evidence in the light most favorable to the verdict.     United States v.
Jenkins, 78 F.3d 1283, 1287 (8th Cir. 1996) (citing United States v.
Bascope-Zurita, 68 F.3d 1057, 1060 (8th Cir. 1995), cert. denied,     U.S.
 , 116 S.Ct. 741, 133 L.Ed.2d 690 (1996)).      The verdict is given the
benefit of all reasonable inferences that




     3
     The district court entered a judgment of acquittal
notwithstanding the verdict as to a charge of use and carrying of
firearms in violation of 18 U.S.C. § 924(c).

                                    -6-
could have been drawn from the evidence presented.        Id.   “Reversal is
appropriate only if we conclude that a reasonable fact-finder must have
entertained a reasonable doubt about the government’s proof of one of the
offense’s essentials elements.” Id. (internal quotations omitted).


     In order to prove the existence of a conspiracy, “‘the government
must show an agreement between at least two people and that the agreement’s
objective was a violation of the law.’” Jenkins, 78 F.3d at 1287 (quoting
United States v. Escobar, 50 F.3d 1414, 1419 (8th Cir. 1995)).          This
agreement may be proved by either direct or circumstantial evidence.     Id.
In fact, proof of the agreement often must be implied from the surrounding
circumstances.   Escobar, 50 F.3d at 1419.


     The government introduced sufficient evidence against defendants
establishing a conspiracy between both defendants and Walker.         Walker
brought Detective Seever to 11505 Grandview for the express purpose of
purchasing methamphetamine.   McCracken Junior was present at the residence
and accompanied Walker to the southeast part of the house from where Walker
returned with methamphetamine.   The search of the residence later revealed
methamphetamine, scales and plastic baggies in the southeast and southwest
bedrooms.   As Detective Seever and Walker left the residence with the
methamphetamine, McCracken Senior arrived at the house.    McCracken Senior
then immediately warned Detective Seever and Walker about the presence of
a police car and advised them to dispose of the methamphetamine if pursued
by police officers.


     The government also presented evidence that both defendants resided
at 11505 Grandview.    McCracken Senior’s daughter testified that both
defendants lived at 11505 Grandview in August and September of 1994.     The
southwest bedroom contained personal




                                    -7-
possessions of McCracken Senior and in that bedroom officers recovered
methamphetamine wrapped in blue gauze and two loaded firearms.           Possessions
belonging to McCracken Junior were found in the northeast bedroom where
officers discovered a safe containing $30,000 divided in three bundles
wrapped in the characteristic blue gauze.              The methamphetamine earlier
purchased by Detective Seever had also been wrapped in blue gauze.                  When
viewed in a light most favorable to the verdict, the evidence presented at
trial of the events on August 27, 1994 and the seizure of methamphetamine,
money, guns and scales from a residence occupied by both defendants was
sufficient to support the jury’s conclusion that the defendants were
involved in a conspiracy to distribute methamphetamine.


     McCracken Junior alleges there was insufficient evidence to support
his conviction for aiding and abetting the distribution of methamphetamine.
To sustain a conviction for aiding and abetting with intent to distribute
drugs, the government must prove: “‘(1) that the defendant associated
himself with the unlawful venture; (2) that he participated in it as
something he wished to bring about; and (3) that he sought by his actions
to make it succeed.’” United States v. Duke, 940 F.2d 1113, 1117 (8th Cir.
1991) (quoting United States v. Lanier, 838 F.2d 281, 284 (8th Cir. 1988)).


     In   examining    the   evidence   in    the   light   most   favorable   to    the
government,   the   facts    sufficiently     establish     that   McCracken   Junior
associated    and     then   participated       with    Walker     in   distributing
methamphetamine.      Walker brought Detective Seever to a residence where
McCracken Junior was present for the purpose of purchasing methamphetamine.
Walker talked with McCracken Junior, left the living room with McCracken
Junior, and then returned with a sample of methamphetamine for Detective
Seever.   Detective Seever gave Walker some money, Walker returned to the
southeast portion of the house and then returned with the methamphetamine
wrapped in blue




                                        -8-
gauze.    This configuration of physical movements and exchange of money is
strong circumstantial evidence from which a jury could reasonably find
McCracken Junior to be Walker’s source of supply for the methamphetamine.
The evidence is sufficient to support McCracken Junior’s conviction on
aiding and abetting with intent to distribute methamphetamine.


     McCracken       Senior    contends    that   insufficient      evidence    exists   to
support    his    conviction    on   two   counts   of    possession    with    intent   to
distribute       methamphetamine     in    violation     of   21   U.S.C.   §   841(a)(1).
McCracken Senior was charged with possession of the methamphetamine seized
from 11505 Grandview on September 2, 1994 and the methamphetamine seized
from 9625 Grandview on March 10, 1995.                 McCracken Senior specifically
argues that the government did not sufficiently provide evidence that he
possessed the methamphetamine.


     To convict McCracken Senior on a violation of 21 U.S.C. § 841(a)(1),
the government had to prove that he knowingly possessed the methamphetamine
with the intent to distribute.        United States v. Ojeda, 23 F.3d 1473, 1475
(8th Cir. 1994) (citing United States v. Brett, 872 F.2d 1365, 1369 (8th
Cir. 1989)).      Proof of constructive possession is sufficient to satisfy the
element of knowing possession.        United States v. Perkins, 94 F.3d 429, 436
(8th Cir. 1996) (citing United States v. Townley, 942 F.2d 1324, 1325 (8th
Cir. 1991)).       Constructive possession of drugs can be established if a
person has “ownership, dominion or control over the contraband itself, or
dominion over the premises in which the contraband is concealed.”                  Ojeda,
23 F.3d at 1475 (citing United States v. Schubel, 912 F.2d 952, 955 (9th
Cir. 1990)).


     There is sufficient circumstantial evidence to support a conclusion
that McCracken Senior constructively possessed the




                                            -9-
methamphetamine.    The government produced testimony from McCracken Senior’s
daughter that in August and September of 1994, McCracken Senior lived at
11505 Grandview.     The methamphetamine seized from 11505 Grandview was
recovered from a bedroom containing various possessions belonging to
McCracken Senior.    With respect to the 110 grams of methamphetamine seized
from 9625 Grandview, McCracken Senior informed Detective Santoli that he
lived at 9625 Grandview.    Further, personal items with McCracken Senior’s
nickname “Shadow” were recovered from a safe located in a bedroom at 9625
Grandview.    In both instances, the testimony and evidence supports the
jury’s verdict that McCracken Senior had sufficient dominion over the
premises to establish constructive possession of the methamphetamine.


     B)      Enhancement for Possession of Firearms


     Both defendants contend that there was insufficient evidence of an
adequate nexus between the guns seized and the alleged criminal activity
to support the district court’s enhancement of their offense levels by two
points pursuant to U.S.S.G. § 2D1.1(b)(1).


     Federal Sentencing Guideline § 2D1.1(b)(1) calls for an increase of
two levels to a person’s base offense level for some drug related crimes
when “a dangerous weapon (including firearm) was possessed.”      See United
States v. Payne, 81 F.3d 759, 763 (8th Cir. 1996).     Application Note 3 to
the guidelines explains that: “[t]he enhancement should be applied if the
weapon was present, unless it is clearly improbable that the weapon was
connected with the offense.”      Id.   The government bears the burden of
proving by a preponderance of the evidence that the weapon was present and
that it is probable that the weapon was connected with the drug




                                     -10-
charge.   Id. (quoting United States v. Hayes, 15 F.3d 125, 127 (8th Cir.),
cert. denied,      U.S.   , 114 S.Ct. 2718, 129 L.Ed.2d 843 (1994)).


     Lack of proof of use or actual possession does not prohibit a §
2D1.1(b)(1) adjustment; enhancement for weapons possession may be based on
constructive possession, which includes ownership, dominion, or control
over the item, or dominion over the premises.   United States v. Luster, 896
F.2d 1122, 1129 (8th Cir. 1990) (citations omitted).     A district court’s
determination that a defendant possessed a firearm for purposes of a §
2D1.1(b)(1) enhancement will be reversed only if the decision was clearly
erroneous.   Id.


     The government placed into evidence three loaded firearms seized from
a residence where both McCracken Senior and McCracken Junior resided.   Two
of the firearms were found in a room that the government established to be
McCracken Senior’s bedroom.   Located in this bedroom was also 110 grams of
methamphetamine.   McCracken Junior was present in the residence during the
search when the officers seized the three firearms and the methamphetamine.
More specifically, McCracken Junior was present in the living room where
officers seized a loaded firearm within close proximity of six grams of
methamphetamine.     The district court’s application of the two level
enhancement was not clearly erroneous, accordingly, we affirm the district
court’s determination.


     C)      Admission of Statements Made by McCracken Senior


     Defendants contend that the district court abused its discretion in
admitting into evidence McCracken Senior’s statements of August 27, 1994
where he warned and advised Detective Seever and




                                    -11-
Walker about the presence of a police car near the residence.      Defendants
maintain that the admission of these statements violated their Sixth
Amendment right of confrontation.   Defendants argue that the statements are
hearsay which fall outside the co-conspirator exception to the hearsay rule
under Federal Rule of Evidence 801(d)(2)(E).    Moreover, defendants assert
that the trial court erred by failing to make the proper Bell findings
before ultimately admitting the statements into evidence.       United States
v. Bell, 573 F.2d 1040 (8th Cir. 1978) (establishing the procedure for the
admission of co-conspirator statements under Federal Rule of Evidence
801(d)(2)(E)).


     We review a district court’s determination to admit evidence            under
the deferential abuse of discretion standard.     United States v. Johnson,
28 F.3d 1487, 1498 (8th Cir. 1994), cert. denied,        U.S.    , 115 S.Ct.
768, 130 L.Ed.2d 664 (1995),(citing United States v. Layne, 973 F.2d 1417,
1421-22 (8th Cir. 1992), cert. denied,         U.S.   ,113 S.Ct. 1011, 122
L.Ed.2d 160 (1993)).   Unless there is a clear and prejudicial abuse of
discretion, the district court’s decision will be affirmed.      Id.


     Rule 801(d)(2)(E) of the Federal Rules of Evidence provides that a
statement of a co-conspirator is admissible if the trial court determines
by a preponderance of the evidence that “the statement was made during the
course and in furtherance of a conspiracy to which the declarant and the
defendant were parties.”   United States v. Roulette, 75 F.3d 418, 425 (8th
Cir.), cert. denied,       U.S.     , 117 S.Ct. 147, 136 L.Ed.2d 93 (1996)
(citations omitted).   As explained by the Court in Bell, the trial court
may conditionally admit the hearsay statements of alleged co-conspirators,
subject to a final ruling on the record that the statements are admissible
pursuant to the co-conspirator exception to the hearsay rule.          Id.    The
procedures outlined in Bell are




                                    -12-
flexible and do not require reversal for failure to follow those procedures
absent a showing of prejudice.                 Id.     If the record indicates that a
defendant failed to specifically request a Bell ruling, but made a motion
for   acquittal, we will consider the district judge’s denial of the
acquittal motion as substantial compliance with the Bell holdings, and
employ a plain-error standard of review.               United States v. Ortiz-Martinez,
1 F.3d 662, 673 (8th Cir.), cert. denied, 510 U.S. 936, 114 S.Ct. 355, 126
L.Ed.2d 319 (1993).


      As previously addressed, the government sufficiently established the
existence of a conspiracy involving both defendants.                      McCracken Senior’s
comments were statements of warning and advice regarding the possession of
drugs.     Such    comments       are    not    idle       conversation    or    insignificant
declarations.     It is clear that the statements made by McCracken Senior,
as related at trial by Detective Seever, were made during the course and
in furtherance of the conspiracy.              As such, the statements were admissible
pursuant to Rule 801(d)(2)(E).


      Defendants admit they did not make an explicit request for a Bell
finding at the end of trial.             Defendants did, however, assert an ongoing
objection to the admission of co-conspirator statements and argued a motion
for judgment of acquittal.         The district court denied the motion.               We infer
from the denial of the acquittal motion the requisite Bell findings and
review   for   plain    error.          In   light    of    the   evidence      establishing   a
conspiracy, we do not find plain error in the admission of the testimony,
and concomitantly, that defendants were not prejudiced by the district
court’s failure to follow Bell procedures.


      Defendants       maintain    that       the     admission    of   McCracken     Senior’s
conspiratorial statements violated McCracken Junior’s rights




                                               -13-
pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 Led.2d
476 (1968).    The Supreme Court in Bruton explained that a nontestifying
codefendant’s confession expressly incriminating the defendant introduced
at a joint trial, violates that defendant’s Sixth Amendment right of
confrontation.    Bruton, 391 U.S. at 135-136, 88 S.Ct. at 1627-1628.
Bruton, however, does not mandate the exclusion of all statements made by
a codefendant; if the codefendant’s statement does not incriminate the
defendant, Bruton does not apply.   United States v. Flaherty, 76 F.3d 967,
972 (8th Cir. 1996)(citing Escobar, 50 F.3d at 1422).   The statements made
by McCracken Senior do not incriminate McCracken Junior.      The district
court’s decision to admit into evidence the statements made by McCracken
Senior is affirmed.


III. CONCLUSION


     For the foregoing reasons, we affirm defendants’ convictions and
sentences.


     A true copy.


             Attest:


                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                    -14-
