Affirmed in part, vacated in part, and remanded by published opinion. Senior Judge MICHAEL wrote the opinion, in which Judge WIDENER joined.
MICHAEL, Senior District Judge:
On December 6, 1994, a federal grand jury in the Western District of North Carolina indicted defendant-appellant James Edward Phifer a/k/a Rick Daye (“Phifer”) and defendant-appellant Corey Eugene Angle (“Angle”), with John Henry Angle, Smith L. Turner, and Robert Lee Smith on one count of conspiracy unlawfully to possess with intent to distribute, and to distribute, cocaine in violation of 21 U.S.C. § 846. All five defendants were also indicted on one count of criminal forfeiture in violation of 21 U.S.C. § 853. In addition, the grand jury indicted Phifer on two counts of money laundering under 18 U.S.C. § 1956 and one count of money laundering forfeiture under 18 U.S.C. § 981. The government subsequently moved to supersede the indictment on July 12, 1995 to add an illegal gambling business count under 18 U.S.C. § 1955 and a firearms count against Phifer. Defendants Turner and Smith entered pleas of guilty to count one of the indictment.
The jury trial of the three remaining defendants, Phifer, Angle, and John Henry Angle, began on October 23, 1995. After the government and the defense completed their cases, the district court ruled that the drug conspiracy count against all three defendants, as well as the two money laundering counts against Phifer, should go to the jury. The forfeiture matters, ie. the count of criminal forfeiture as to all five defendants and the count of money laundering forfeiture under 18 U.S.C. § 981 against Phifer, were bifurcated to await the resolution of the remaining counts by trial. The jury found both Phifer and Angle guilty of the count of drug conspiracy, found Phifer guilty of both counts of money laundering, and acquitted John Henry Angle of the count of drug conspiracy. On August 19,1996, the district court sentenced Phifer to 292 months in custody and Angle to 210 months.
This court has jurisdiction to hear the appeal of this matter pursuant to 28 U.S.C. § 1291. On appeal, the defendants make numerous challenges to their convictions and sentences. After carefully considering the record in this case, the briefs, and the parties’ arguments, this court affirms the district court in part and vacates and remands in part, for the reasons set out below.
I.
A. THE TRIAL
After seven days of testimony, a jury convicted Phifer and Angle of conspiracy to possess with the intent to distribute, and to distribute, cocaine. The jury also convicted Phifer of two counts of money laundering pursuant to 18 U.S.C. § 1956 and ordered the forfeiture of his residence for its use in facilitating drug trafficking.
During the trial, eight eyewitness co-conspirators testified against Phifer: Larry Reginald Cartledge, Robert Lee Smith, J. Lee Sturgis, Robert “Snake” Chambers, Perry Jerome Knox, George Allen Scott Redman, Robert Lee Griffin, and Earl Leslie Gray. Five eyewitness co-conspirators testified against Angle: J. Lee Stur-gis, Robert “Snake” Chambers, Robert Lee Griffin, Linda Peak Walker, and Earl Leslie Gray. In addition to the eyewitness testimony, numerous law enforcement officers testified about searches and undercover operations including: (1) the discovery of $14,000 in currency and an Uzi pistol in Phifer’s bedroom in 1987, (2) the discovery of Phifer’s palmprints on a container of cocaine in 1988, (3) a sting operation witnessed by an undercover agent in 1990 where Phifer sold cocaine to an informant, (4) the seizure of $8500 in currency and a .38 caliber pistol from Angle during a take-down and arrest on March 1, 1993, (5) a pen register and long distance phone calls in 1993-94, (6) tax information and employment security records showing that Phifer and Angle had insufficient legitimate or reported income to support their standard of living, (7) the discovery of marked drug money in Angle’s bedroom dresser, and (8)
The prosecution supported this testimony regarding the drug conspiracy with evidence of Phifer’s laundering of his drug money into the purchase of two different vehicles in 1990, titling a red 1984 Corvette in his brother’s name, titling a 1955 Chevy pickup truck in his mother’s name, and switching the tags on the Chevy pickup truck.
1. Cocaine Conspiracy Evidence
Beginning as early as March of 1987 when law enforcement officers searched Phifer’s bedroom, and continuing until the date of their arrest on December 14, 1994, Phifer and Angle were central players in a cocaine and crack conspiracy operating in both Iredell and Rowan counties in mid-western North Carolina, particularly in and around the city of Statesville and the town of Cleveland. Over the eight-year period, the conspiracy involved as many as a dozen different conspirators and as much as thirty kilograms of powder cocaine and three kilograms of crack. Local authorities profiled Phifer as a major cocaine conspirator sometime in 1987; authorities believed Angle entered the conspiracy as early as 1990.
Without setting out that testimony witness by witness, consideration of the record reveals eyewitness testimony and corroborating evidence of actual drug transactions involving Phifer and Angle on various occasions, in sum extending over a period of years. The record testimony is also complete from an eyewitness seller who sold the two vehicles to Phifer. An eyewitness testified that Phi-fer often hid the cocaine in a can or similar container. There was direct evidence of Phifer carrying a pistol, and evidence of seeing a pistol in the laundry room of Phifer’s residence during one of the drug deals. In addition, there was evidence of marked money being used in a drug deal and being found thereafter in a dresser drawer in Angle’s residence.
Additionally, the prosecution introduced evidence buttressing the testimony of the eyewitnesses, including the incriminating evidence found in executing search warrants, palm prints of Phifer on a jar containing crack cocaine, sting operations, a search of Angle and his car, various income tax returns, pen registers, $2150 of marked money in a sum of $8099 found in Angle’s bedroom during execution of a search warrant, and seizures of various weapons, two police scanners, and $2000 in currency found in executing a search of Phifer’s bedroom. All this evidence tended to one degree or another to corroborate and state in greater detail the evidence of the various eye witnesses.
2. Money Laundering Evidence
In the summer of 1990, well within the time frame of the drug conspiracy, Phifer purchased two vehicles from co-conspirator Larry Cartledge — -a red 1984 Corvette and a 1955 Chevy pickup truck. Phifer titled the two cars in the names of his mother and brother, respectively. In the case of the 1955 Chevy pickup, Phifer apparently purchased a second 1955 Chevy pickup and switched license tags to prevent authorities from tracing the ear. The jury found that the transactions were designed in part to conceal the fact that he was the true owner of the vehicles and convicted Phifer of both counts of laundering monetary instruments.
B. SUPPRESSION HEARING
During the trial, it became apparent that there was an error in the search warrant affidavit, leading Angle’s counsel to move to suppress all evidence and the fruits thereof discovered during the search. The court interrupted the trial and held an extensive suppression hearing. That hearing revealed that the warrant named a trailer to be searched which was not in fact the one intended to be searched, though the two traders were located in close proximity to one another. The intended trailer
The court found that an innocent mistake had been made in the affidavit for the séarch warrant, stemming from problems associated with communications between law enforcement agencies in Statesville, and Cleveland, North Carolina, and the Rowan and Iredell Counties’ Sheriffs Offices, all of which agencies were attempting to keep informed as to the search and its progress.
The court concluded that the mistaken identity of the trailer was an honest error, that the affidavit had been prepared and tendered in good faith, that the trailer intended to be searched was in fact the trailer which was searched, was the trailer occupied by Corey Angle, the intended target of the search, and was the trailer in which incriminating evidence was found.
The court concluded that the suppression motion should not be granted.
C. SENTENCINGS
Both Phifer and Angle were sentenced on August 19, 1996, and the district court filed their judgment and commitment orders on September 23, 1996. At both sentencing proceedings, the government relied on a thorough and detailed presen-tence report (“PSR”) prepared by Probation Officer Christine S. Nickel. The pre-sentence reports’ estimates of the drug quantities and drug types reasonably foreseeable to both Angle and Phifer were based on systematic analyses of the testimony of the witnesses and the admitted evidence.
At Phifer’s sentencing, the district court accepted the PSR’s total offense level of 40 (a base offense level of 38 for the drug quantity with a two-point enhancement for possession of a firearm). The district court reduced the criminal history category to Category I from the PSR’s recommendation of Category II. Phifer faced an adjusted sentencing range of 292 to 365 months and the district court sentenced him to 292 months.
At Angle’s sentencing, the district court reduced the recommended base offense level from 38 to 34. With a two-point enhancement for the possession of a firearm, Angle’s total offense level was 36. The government conceded to a criminal history category reduction from Category III to Category II because of confusion over Angle’s criminal record. This reduced Angle’s sentencing range from 360 months to life to 210 to 262 months. The district court sentenced Angle to 210 months.
On August 26 and 27, 1996, Angle and Phifer, respectively, filed timely notices of appeal of their convictions and sentences. On March 20, 1998 and again on March 3, 1999, the district court denied Phifer’s motions for a new trial. Also on March 3, 1999, Phifer noted his appeal of the district court’s denial of his new trial motions.
On appeal, the defendants make various challenges to their convictions and sentences. First, Phifer alleges that the district court abused its discretion in failing to instruct the jury on the statute of limitations issue regarding the drug conspiracy. Second, Angle alleges that the district court committed reversible error in denying his motion to suppress evidence derived from a search of his residence. Third, Angle contends that the district court erred in admitting into evidence photocopies of marked currency. Fourth, Phifer argues that the district court was clearly erroneous when it failed to make specific findings in determining the drug quantity and drug type attributed to Phi-fer at his sentencing. Finally, Angle also alleges that the district court erred in determining the drug quantity and drug type attributed to Angle at his sentencing. Again, after carefully considering the record in this case, the briefs, and the parties’ argument, this court affirms the district court’s rulings in part but vacates and remands in part with respect to Phifer and Angle’s sentencings.
Defendant Phifer first contends that the district court erred in failing to instruct the jury on the statute of limitations on the drug conspiracy charge. A district court’s refusal to charge the jury on an instruction requested by a defendant constitutes reversible error only when the requested instruction: (1) is correct, (2) is not substantially covered by the court’s charge to the jury, and (3).deals with some point in the trial so important that failure to give the requested instruction seriously impairs the defendant’s ability to conduct his defense. See United States v. Lewis, 53 F.3d 29, 32 (4th Cir.1995). Further, for a court’s refusal to give an instruction that involves a theory of defense to be reversible error, there has to be a foundation in the evidence for that theory. See Mathews v. United States,
Phifer argues that the issue of whether an offense occurred within the statute of limitations period is an issue for the jury to decide. By failing to instruct the jury on the statute of limitations, Phifer argues, he was deprived of his ability to argue a key theory of his defense — that if the drug conspiracy existed at all, it had terminated more than five years before December 6, 1994.
The statute of limitations for a conspiracy charged pursuant to 21 U.S.C.
§ 846 is five years. See 18 U.S.C. § 3282. The government, however, is not required to prove an overt act to demonstrate the existence of a § 846 conspiracy. See United States v. Shabani,
In the present case, the district court expressly instructed the jury that to convict Phifer of Count I, the drug conspiracy charge, it “should first determine whether or not the conspiracy existed as alleged.” (J.A. 632.) Because Count I alleged that the conspiracy existed from 1987 through “the present” — or the date of the original indictment, December 6, 1994 — and because the prosecution occurred within the five year period following December 6, 1994, it is not barred by any statutory limitation. The district court’s instructions, taken as a whole, covered the point of law which Phifer complains the district court misinstructed. Phifer’s allegation of error is without merit.
III.
Defendant Corey Angle contends that the district court erred in failing to suppress the evidence discovered during a search of his home pursuant to a search warrant. Specifically, he sought to suppress the photocopy of the money seized which had been found in his dresser drawer. Angle contends that the officer knowingly made materially false representations to the issuing magistrate regarding the mobile home to be searched.
As set forth above, at the suppression hearing during the middle of trial, the district court denied Angle’s motion to suppress and was correct in doing so. In United States v. Leon,
None of the four situations outlined in Leon which would cause an officer’s reliance on the validity of a search warrant to be unreasonable is applicable under the facts of this case. See id. at 923,
Under Leon, the proper test of an officer’s good faith is “whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Id. at 922 n. 23,
As the district court found, it was objectively reasonable under the circumstances for the officer to have believed he had described the correct mobile home to search, and he did in fact search the correct mobile home. The officer knew that Angle was the target of the sting, and knew where Angle’s mobile home was located. The district court’s denial of Angle’s motion to suppress is affirmed.
IV.
Corey Angle also contends that the district court erroneously admitted into evidence photocopies of marked money given to the undercover agent and of the seized money from the dresser drawer in Angle’s residence under the best evidence rule. This court reviews the district court’s evidentiary rulings for abuse of discretion. See Supermarket of Marlinton, Inc. v. Meadow Gold Dairies, Inc.,
The best evidence rule requires the admission of the “original” of a “writing” or “recording” to prove the content of the writing or recording. See Fed.R.Evid. 1002. The best evidence rule, however, also permits the admission of duplicates “unless (1) a genuine question is raised as to the authenticity or continuing effectiveness of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” Fed. R.Evid. 1003.
The photocopy of the marked money that the detective made before she turned the money over to the undercover officer for use in the sting operation was the actual piece of evidence that she kept in her custody. She photocopied the $2400 and, in her own handwriting, wrote the date of July 15, 1994, on the photocopy. After she gave the money to the undercover officer, she faxed her photocopy to the Rowan County Sheriffs Office, and also gave to that office another copy of the original photocopy.
Both the fax and the extra copy were used to compare the serial numbers of the money seized from Corey Angle’s dresser drawer with the serial numbers of the money that was turned over to the undercover officer for use in the sting operation. On $2150 of the $2400, the serial numbers were identical. Before the seized money was transferred, a photocopy of the seized money was made to keep for the records of the transferring office.
The photocopy identified and introduced at trial as Exhibit 30 was in fact the “original” document that the detective used to convey the serial numbers of the marked money. Thus, the original writing as prepared by the detective, the photocopy of the marked money with the date written on the photocopy, was properly introduced into evidence and the trial court did not abuse its discretion.
Angle has not raised any question of doubt about the authenticity or accuracy of the photocopy of the seized money, labeled
V.
Both Phifer and Angle challenge the district court’s findings in determining the drug quantity and drug type attributed to each of them at sentencing. Angle invokes the new Supreme Court case of Apprendi v. Neto Jersey,
The Court announced as a constitutional rule in Apprendi a principle that had been suggested as one in Jones v. United States,
In McMillan v. Pennsylvania, 477 U.S. 79,
Turning to the present matter, the issue presented is whether the different drug quantities attributed to Phifer and Angle at sentencing were elements that should have been proven to a jury beyond a reasonable doubt, or sentencing factors that were properly found by the district court judge by a preponderance of the evidence.
Phifer and Angle were convicted of The Attempt and Conspiracy statute, 21 U.S.C. § 846, which makes the penalty for conspiring to commit certain offenses the same as the penalty for those offenses. Generally, 21 U.S.C. § 841(a) defines the crime that was the object of the conspiracy: namely, making it unlawful for any person, knowingly or intentionally, to manufacture, distribute, or dispense controlled or counterfeit substances. The penalties for violating § 841(a) are set forth in 21 U.S.C. § 841(b), which lists terms of imprisonment in § 841(b)(l)(A)-(D). The fallback imprisonment penalty for certain drug types is § 841(b)(1)(C), which states that “In the case of a controlled substance in schedule I or II ... except as provided in subparagraphs (A), (B), and (D), such person shall be sentenced to a term of imprisonment of not more than 20 years.... ” Thus, under § 841(b)(1)(C), regardless of the quantity of schedule I or II drug, a defendant convicted of a violation of § 841(a) is eligible for a term of imprisonment ranging from zero to twenty years.
Historically, this court and all of her sister circuits have held that drug quantity is a sentencing factor, not an element of the crime. See United States v. Powell,
One of the traditional reasons for refusing to consider quantity as an element of a drug offense was based on the determination that, by listing the quantities in 21 U.S.C. § 841(b), labeled “penalties,” rather than in 21 U.S.C. § 841(a), entitled “unlawful acts,” Congress intended quantity to be a sentencing factor, not an element of the crime. However, the Court in Apprendi made clear that labels are an unacceptable solution to making the “constitutionally novel and elusive distinction between ‘elements’ and ‘sentencing factors.’ ”
Phifer and Angle’s convictions for violating § 846 make the penalties listed in § 841(b) applicable to them. There was no drug quantity charged in the indictment (J.A. 52) or submitted to the jury (J.A. 626-27). Accordingly, applying Apprendi, the jury’s finding of a violation of § 846 authorizes sentences for the defendants under § 841(b)(1)(C) to terms of not more than twenty years.
Pursuant to Apprendi, in order for imprisonment penalties under §' 841(b)(1)(A) or (B) to apply to the defendants, such that findings of particular drug quantities could expose them to imprisonment terms greater than § 841(b)(l)(C)’s catch-all statutory maximum of twenty years, the drug quantity must be treated as an element: charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt. Where no drug quantity is charged in the indictment or found by a jury, but a jury has found a violation of § 841(a), the standard statutory term of imprisonment is not more than twenty years. See § 841(b)(1)(C). In these cases, where the quantity is not charged, the drug amount is still a proper aggravating or mitigating factor to be considered by the judge in determining a sentence át or below the statutory maximum sentence. See Apprendi
Angle received a sentence of 210 months for his violation of § 846. (J.A. 512.) Because Angle’s sentence is not more than twenty years, the sentence comports with § 841(b)(1)(C), which is the applicable penalty for this case, as explained above. Contrary to Angle’s position on appeal, consideration by the district court judge of the quantity of drugs in determining the appropriate sentence at or below the statutory maximum was proper under Appren-di also explained above. However, notwithstanding the finding that the district court was in compliance with Apprendi when it sentenced Angle, as detailed in the
Phifer received a sentence of 292 months for his violation of § 846.
The district court’s finding of the quantity of drugs attributable to Phifer suggested a term of imprisonment under the Sentencing Guidelines that increased Phifer’s term of imprisonment beyond the applicable statutory maximum. Under Apprendi, such factor must be found by a jury beyond a reasonable doubt if it is to be acted upon, or, pursuant to U.S.S.G. § 5Gl.l(a), the statutory maximum shall be considered the guideline sentence. Although the district court judge did not have the benefit of Apprendi at the time of sentencing, the error of exceeding the twenty year statutory maximum is not harmless and must be corrected on re-sentencing. Phifer’s sentence for the conviction of § 846 is vacated in light of Apprendi and the case is remanded for re-sentencing consistent with this opinion.
VI.
Finally, defendant Angle contends that his sentence should be vacated and his case remanded for re-sentencing with instructions that the district court make specific findings of fact proved by a preponderance of the evidence as to the type and amounts of cocaine attributable to him. The PSR recommended that Angle be held responsible for at least 6.5 kilograms of cocaine powder and 3 kilograms of cocaine base, having a marijuana equivalency of 61,300 kilograms. Angle’s PSR contains the exact same factual findings as the PSR compiled for Phifer, including reference to “several individuals previously prosecuted for illegal drug distribution” who named Phifer as their source of cocaine, a description of how their testimony resulted in the number of grams of cocaine attributed to Phifer by Special Agent Boone, and specif
Angle objected to the findings in the PSR with respect to its drug quantity determination, arguing that the testimony by the government’s witnesses was unreliable. At his sentencing hearing, the district court heard argument from Angle challenging the drug quantity determination and the evidence relied upon by the probation officer in making those determinations. After hearing the response of the government, the district court stated that “on examination of the evidence and the preponderance thereof, the Court finds the amount of drugs attributable to the Defendant in this matter would give him a Level 34 base level instead of 38. Consequently, that changes the Guidelines.” (J.A. 456.) In its “Statement of Reasons” form attached to Angle’s criminal judgment, the district court stated it adopted the factual findings and guideline application in Angle’s PSR except that it sustained “defendant’s objection to drug quantity and finds a base offense level of 34 rather than 38; finds criminal history category III overstates defendant’s history and finds appropriate Criminal History to be II.” (J.A. 517-18.)
Unlike at Phifer’s sentencing, the district court did not impliedly adopt the factual findings in the Angle’s PSR regarding attributable drug weight, but instead determined that Angle deserved a lower base offense level than recommended in the PSR. However, the court did not specify the exact quantity nor the identity of the drugs involved, nor how it came to the conclusion that the defendant should have a base offense level of 34. Thus, with respect to defendant Angle, this court cannot conduct an effective appellate review of the district court’s drug quantity determinations according to the proper standards. See, e.g., United States v. Cook,
VII.
Upon review -of the record in this case, the briefs, and the parties’ argument, this court concludes that the district court did not abuse its discretion in failing to instruct the jury on the statute of limitations issue regarding the drug conspiracy. Second, the district court did not commit reversible error in denying defendant Angle’s motion to suppress evidence derived from a search of his residence. Third, the district court did not err in admitting into evidence photocopies of marked currency and seized currency. Fourth, although the district court properly attributed drug quantities to Phifer establishing a base offense level of 38, it is error under Ap-prendi to allow judicial findings of quantity to cause the penalty to exceed the applicable statutory maximum penalty. Accordingly, Phifer’s sentence with respect to the § 846 conviction must be vacated and remanded for re-sentencing in light of Ap-prendi and in accordance with this opinion. Finally, the district court failed to determine the drug quantity and drug type attributed to Angle at his sentencing. Defendant Angle’s case is remanded to the district court to make the necessary findings as to drug quantity and type.
Notes
. The court notes that, although § 841(b)(1)(C) authorizes imprisonment for not more than thirty years where death or serious bodily injury occurs and in particular cases of recidivism, these are not issues in the present case and the court does not address how Apprendi may apply in such cases. Accordingly, in this opinion the court refers to the statutory maximum of § 841(b)(1)(C) as not more than twenty years.
. Phifer also was sentenced to 240 months on each count under 18 U.S.C. § 1956(a)(l)(B)(i), to run concurrently with one another and with the sentence Cor the drug count. (J.A. 504-05.) These sentences are unaffected by this decision.