Opinion for the Court filed by Circuit Judge WALD, Circuit Judge SILBERMAN, and Circuit Judge ROGERS.
According to a 115-eount superseding indictment, appellants McKinley Board, Gregory Thomas, Donnell Williams, Andre Williams, and Derrin Perkins, and nineteen others were players in a sizable conspiracy (the “R Street Crew”) to distribute marijuana, PCP, and cocaine around the intersection of R Street and Lincoln Road in Northeast Washington, D.C. On December 23, 1991, Judge Revercomb divided the 24 defendants into four groups for separate trials; the convictions of the first group, which included the three principal leaders of the gang still alive (Anthony Nugent, Kevin Williams-Davis, and Darryl Williams), were affirmed on appeal in
United States v. Williams-Davis,
I. Background
A. The Organization
Viewed in the light most favorable to the government, the evidence introduced at trial established that by 1983 the R Street Crew had established a single coordinated drug distribution network selling principally PCP and marijuana. Following the familiar pattern,
see Williams-Davis
at 494;
United States v. Childress,
The organization maintained, and the leaders and lieutenants supervised activities at, a number of locations in the R Street area where drugs were packaged for distribution (one such location was known as “the shop”), as well as several “stash houses” in which packaged drugs were stored to later resupply runners on the street. Search warrants executed from 1983 to 1991 at these locations, many of which were the residences of relatives and friends of members of the R Street Crew, disclosed extensive evidence of drug activity, including large quantities of marijuana, PCP, and cocaine, guns and ammunition, and packaging materials and paraphernalia.
The R Street Crew’s activities included bloody and sometimes deadly clashes with rival drug-peddling gangs and others over control of the neighborhood: Alton Clea, a member of a rival gang, was shot and killed, while another member of the Clea group was shot and wounded; Thomas stabbed a rival dealer in the back; a rival drug dealer was shot the day after a dispute with Thomas; members of the organization “shot up” an auto-body repair shop owned by rival gang members, killing one person and wounding others; Board shot a rival gang member from a car in which Donnell Williams was also riding; Board, accompanied by Donnell Williams, attempted to kill another rival gang member; upon discovering cash missing from a room, Board and another member of the organization pointed guns at other members’ heads and forced each member to return singly to the room to return the money; and Donnell Williams and others staged an armed robbery of two women prepared to purchase five kilograms of cocaine. Guns were thus a constant in the organization— among other things, in 1987, a senior member of the Crew attempted to buy guns from an undercover agent of the Bureau of Alcohol, Tobacco, and Firearms, and Board was involved in supplying the organization with guns. The R Street Crew was, not surprisingly, also a target of violence.
Each of the appellants was heavily involved in the gang’s drug distribution activities. Thomas was originally one of many runners selling for the organization on a daily basis and was arrested in 1988 for attempted distribution of PCP. By 1988 or 1989 Thomas had become involved in managing runners, and, as noted above, was also involved in the R Street Crew’s use of violence against rival distributors. Board began his involvement with the organization as a runner, but soon was managing runners, and packaging drugs for sale. Board was arrested for possession with intent to distribute cocaine and PCP in 1985 and 1986, and in 1990 and 1991, a government informant made several tape-recorded drug purchases and one gun purchase from Board. Board was actively involved in the group’s use of violence to control the R Street neighborhood.
Donnell Williams was eleven when the organization first began distributing drugs in 1983, and was fifteen when he was first arrested for selling drugs in 1987. He was arrested four times between May 1988 and March 1990 for selling drugs, and participated’ in a staged armed robbery and several drive-by shootings which targeted rival gang members. Donnell Williams turned eighteen on December 21, 1989. Andre Williams (the younger brother of Darryl Williams and a cousin of Williams-Davis) was fifteen when he was first arrested in 1984 for selling drugs in the Lincoln Road-R Street area. During 1985 and 1986, Andre Williams continued to sell drugs, was involved in bringing drugs to the stash houses, and supplied drugs to runners. In 1988, Andre Williams was involved in mixing marijuana and PCP, and continued to sell and manage runners. Andre Williams turned eighteen on May 15, 1987. Perkins was selling drugs in the Lincoln Road-R Street area by 1984. Perkins continued to sell marijuana and PCP for the organization until 1986; in 1987, he branched out on his own and the organization became a source from which he purchased large quantities of drugs, which he then resold through his own runners.
*237
The demise of the R Street Crew began in 1990 after a member of the gang robbed a New York go-between of his cocaine, prompting the go-between (caught between the R Street Crew and his Colombian suppliers) to turn FBI informant.
See Williams-Davis,
B. Replacement of Trial Judge and Jury Verdict
Shortly after the close of the government’s case, Judge Revercomb became too ill to continue, and Judge Hogan was assigned to continue the case pursuant to Fed. R.Crim. P. 25(a). To familiarize himself with the ease, Judge Hogan had a lengthy telephone conversation with Judge Revercomb; was briefed by Judge Revercomb’s law clerk; read all 44 volumes of the trial transcript; and reviewed all pre-trial and trial motions and motions rulings, some of the physical evidence, Judge Revercomb’s chamber notes, and some transcripts from the trial in Williams-Davis. Appellant Board objected, arguing that Judge Hogan should have read all of the transcripts from the first trial as background material and, even if he were to do so, Judge Hogan still would not have been in a position to judge the demeanor of the witnesses. Taking the objection on behalf of all defendants, Judge Hogan denied it, stating that his review of the materials satisfied Rule 25(a).
On February 11, 1993, the jury returned its verdicts. The jury convicted each appellant of conspiracy to distribute and possess with intent to distribute various drugs (the drug conspiracy), 21 U.S.C. §§ 841, 846, and of conspiracy to participate in a racketeer influenced corrupt organization (the RICO conspiracy), 18 U.S.C. § 1962(d). The jury found Board guilty of a substantive RICO violation, 18 U.S.C. § 1962(c), but acquitted the other appellants on this charge.
The jury also found Board guilty of six counts of distribution or possession with intent to distribute drugs, 21 U.S.C. §§ 841(a)(1), (b)(1); four counts of use of a communication facility in connection with the drug offenses, 21 U.S.C. § 843(b); one count of employing juveniles to distribute drugs, 21 U.S.C. § 845b (now § 861); assault with intent to kill while armed, D.C.Code §§ 22-501, 22-3202; possession of a firearm during that offense, D.C.Code § 22-3204(b); and unlawful shipment, transportation or receipt of a firearm, 18 U.S.C. § 924(b). Donnell Williams was convicted of one count of distribution of drugs and one count of use of a communication facility in connection with that offense, and Thomas and Perkins were convicted of one count each of employment of juveniles to distribute drugs. The jury acquitted Andre Williams of the four non-conspiracy counts with which he was charged. 1
C. Sentencing
In separate hearings held from November 1, 1993, to April 21, 1994, Judge Hogan sentenced eaeh of the appellants to concurrent terms of life in prison without parole and sentenced Board to additional terms in prison for other offenses. Judge Hogan relied on the presentence reports to calculate the total amount of drugs involved in the conspiracy. Specifically, each report calculated the total amount involved — the equivalent of over 1,000,000 kilograms of marijuana — in the same way:
• 150 kilograms of crack cocaine supplied by Alvin Buckhalter [the gang’s Los Angeles supplier] to the conspiracy, converted to 30,000 kilograms of marijuana;
• 500 kilograms of cocaine supplied by Claude Jiggins [the gang’s New York supplier] to the conspiracy, converted to 100,000 kilograms of marijuana; and
• 1,000 kilograms of PCP/marijuana distributed by the conspiracy, converted to 1,000,000 kilograms of marijuana per the Sentencing Guidelines tables.
The presentence reports arrived at this last figure as follows:
Testimony reflects that the organization sold quantities of liquid PCP, marijuana laced with PCP, cocaine, and on occasion, cocaine base, approximately 12 hours per *238 day, seven days per week, and practically every day of the year. Participants testified that between 1984 and 1990, the organization sold on an average of $9,000 to $30,000 worth of PCP lids (lids = 1 to 1& ounces of PCP) per night. A lid sold for approximately $150, and a one ounce bottle of liquid PCP sold for approximately $300. On the basis of the aforementioned, it is therefore estimated that the organization distributed over 1,000 kilograms of PCP and marijuana.
Although the presentence report does not specify how the figure of 1,000 kilograms was calculated, the government offers an explanation in its brief: $9,000 per day (the lowest dollar amount for a single day), divided by $150 per one ounce lid, equals 60 ounces per day; 60 ounces distributed 200 days per year is approximately 340 kilograms per year (one ounce = 28.35 grams); 340 kilograms per year for seven years is 2,380 kilograms— more than twice the amount arrived at in the presentence reports. None of the appellants directly challenge the calculation of the total amount of drugs involved in the conspiracy.
We consider first appellants’ challenges to their convictions and then address their sentencing claims.
II.
A. Donnell Williams’ Jurisdictional Challenge
Appellant Donnell Williams argues that because he was a juvenile when he became embroiled in the R Street Crew conspiracy and remained a juvenile for most of the time that he was engaged in illegal activity, the Federal Juvenile Delinquency Act (“FJDA”), 18 U.S.C. § 5031 et seq., forbade his prosecution as an adult absent compliance with its procedural requirements for transfer to the adult criminal system. The FJDA provides that
[a] juvenile alleged to have committed an act of juvenile delinquency, ... shall not be proceeded against in any court of the United States unless the Attorney General ... certifies to the appropriate district court of the United States that ... (3) the offense charged is a crime of violence that is a felony or an offense described in [21 U.S.C. § 841] ... and that there is a substantial Federal interest in the case or offense to warrant the exercise of Federal jurisdiction.
18 U.S.C. § 5032. A “juvenile” under the FJDA is a “person who has not [yet] attained his eighteenth birthday, or for the purpose of proceedings and disposition under [the FJDA] for an alleged act of juvenile delinquency, a person who has not attained his twenty-first birthday____” 18 U.S.C. § 5031. “[Jjuvenile delinquency” is “the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult.” Id.
Viewing the evidence in the light most favorable to the government, Donnell Williams was eleven years old when he began participating in the illegal activities of the R Street Crew. He turned eighteen on December 18, 1989, and was nineteen when he was indicted for his involvement in the conspiracy and for various related substantive offenses. He was convicted of RICO conspiracy (Count 2), narcotics conspiracy (Count 3), unlawful distribution of narcotics on October 22, 1990 (Count 93) and unlawful use of a communications facility on October 22, 1990 (Count 94). The two substantive offenses were acts in furtherance of the narcotics and RICO conspiracies, but they constitute separate crimes from the conspiracy offenses.
See United States v. Felix,
Under established circuit precedent, a defendant charged with conspiracy may be tried as an adult even if he first became involved in the conspiracy while still a minor, so long as he continues to participate in the conspiracy after reaching the age
*239
of eighteen.
See United States v. Strothers,
B. Derrin Perkins’ Challenges to Convictions
Appellant Derrin Perkins was convicted of RICO conspiracy, pursuant to 18 U.S.C. § 1962(d) (1984) (Count 2); narcotics conspiracy, pursuant to 21 U.S.C. §§ 846, 841(a)(1) & 841(b)(l)(A)(ii)(II), (b)(l)(A)(iv), (b)(l)(A)(iii), (b)(l)(B)(i) & (b)(1)(D) (1984) (Count 3); and employment of juveniles to distribute drugs, pursuant to 21 U.S.C. §§ 845(b), (a)(1) (1984) (now 21 U.S.C. § 861 (1996)), 841(a)(1) & 841(b)(l)(A)(iv) & (b)(1)(D) (Count 11). On appeal he contends that his convictions must be reversed because the government failed to introduce sufficient evidence to support his conspiracy convictions, there was a material variance between the charged conspiracy and the evidence presented at trial, he was substantially prejudiced by prosecutorial misconduct during opening argument to the jury, and the district court refused to instruct the jury on his theory of defense. We find no basis for reversal of his convictions.
1. Sufficiency of the Evidence for Narcotics Conspiracy Conviction
Perkins contends that the government’s evidence of drug activity established only that he participated in illegal drug activity independent of the R Street Crew, and that there was no evidence that he served as a manager, director, or member of the conspiracy for which he was convicted. Viewing the evidence in the light most favorable to the government, as we must, 2 Perkins had long and intricate ties to the R Street Crew. Numerous witnesses testified that Perkins purchased drugs from several of the R Street operators and also sold drugs for them.
*240 The government’s evidence included, for example, testimony from Dale Webster who stated that she saw “drug activity” in late 1984 on the corner of Lincoln and R Streets by “a lot of the guys that grew up in the neighborhood,” including Kevin Williams, Anthony Nugent, Darryl Williams, Andre Williams, and Perkins. Kenneth Sparrow testified that in 1985, runners wanting coke would say, “go find Derrin, or something like that.” While Perkins also worked alone in 1986 on Lincoln Road between Quincy and R Streets, and “was a boss of his own,” Sparrow testified that Perkins also sold drugs in 1985 for Andre Jackson, who worked for Williams-Davis and Nugent. Dax Nelson, a long-time drug dealer in the R Street area, confirmed that Andre Jackson and Perkins sold cocaine at Lincoln and R Streets, that he and Perkins sold drugs at First and Quincy Streets every day in 1988 and 1989, and that together they made a lot of money. Nelson further testified that when he began selling PCP in 1988 or 1989, while he normally obtained drugs from Kevin Williams-Davis and others, on one occasion Williams-Davis had run out of PCP and Nelson bought a 16-ounce bottle from Perkins for $2,500. Although Nelson did not always know who sold Perkins his drugs, on one occasion it was Odenga Dyson, who worked for Williams-Davis.
The government’s evidence also revealed that Perkins had obtained drugs from the R Street Crew that he sold on his own. Witherspoon testified that after selling drugs for the R Street Crew in 1987, he moved to a different location and was introduced to Perkins and began to sell drugs for him. In the summer of 1988, and for six months thereafter, Witherspoon acted as Perkins’ lookout. Witherspoon recounted Perkins’ various drug-related activities, including an occasion when he saw Perkins give Darrell Williams a large wad of money and was told that Perkins and Darrell Williams were going to the “warehouse,” and an occasion when Perkins told Witherspoon that Anthony Nugent wanted Witherspoon to “do something,” and thereafter Witherspoon made a $5,000 delivery of cocaine to a customer, for which Nu-gent paid him.
Other witnesses confirmed Perkins’ relationship with the R Street Crew. Frankie Pelham testified that in 1988, when he decided to branch out on his own, he bought sixteen ounces of PCP and half an ounce of cocaine from Perkins. Stephoun Hartwell testified that he accompanied Pelham to Perkins’ house to buy cocaine twice; the second time, Pelham went into Perkins’ house and reported that Perkins was “cooking it up.” Rosalind Cherry testified that on about ten occasions she accompanied Odenga Dyson, her boyfriend, to deliver bottles of PCP to Perkins. Cherry also saw Dyson receive a bag of money from Perkins. Maurice Brooks claimed that Perkins told him that he had taken a bullet out of Williams-Davis’ leg after a shootout that occurred as part of the R Street Crew’s attempt to put a competitor out of business. Charles Smith testified that he saw Perkins at 319 Rock Creek Church Road, the home of Andre Williams and a central location where the R Street Crew stored and packaged drugs, 3 and that he once saw Perkins speaking with Darryl Williams.
There was also testimony that Perkins owned several expensive cars and hid his ownership. Sparrow testified that Perkins drove a Volkswagen Cabriolet and a green Mercedes Benz. Nelson claimed that Perkins’ “Benz” was a 300-E and that Perkins also owned a white Nissan 300Zx. At least three other witnesses confirmed Perkins’ ownership of these cars. Nelson also testified that Perkins had registered the Mercedes Benz in someone else’s name. In addition, a salesman at a local Mercedes Benz dealer testified that Perkins had paid in cash for an expensive auto repair.
Finally, there was evidence that Perkins sponsored health club memberships for Nu-gent, Williams-Davis, and Jeffrey Williams, *241 and there were photographs showing Perkins with the leaders of the R Street Crew.
Based on this evidence, the government maintains that a reasonable jury could find that Perkins was selling drugs for his own account as well as being part of the hierarchy of the R Street Crew in 1984-85, and further, that his association with the Crew in later years showed that he was part of the drug and RICO conspiracies. Perkins maintains that the evidence showed only that he was an independent dealer, who was “universally described” as not being a member of the R Street Crew. He contends that no inference can be drawn from Dale Webster’s testimony that Perkins sold with the R Street Crew during the early stages of the conspiracy in 1983 and 1984, and that Webster’s testimony on cross-examination demonstrated that he had merely seen Perkins talking with others on a street comer where drugs were sold in a neighborhood in which Perkins had lived most of his life. He also contends that although the R Street Crew targeted rival drug sellers with violence, certain members, including Perkins, were not involved in such attacks. Perkins emphasizes that only Rosalind Cherry testified about his link to R Street Crew drug deliveries and that this activity occurred only during the summer of 1989. He further maintains that Wither-spoon’s testimony confirmed that Perkins and the R Street Crew operated in “eompetiti[on]” with one another. To support his contention that he operated independently, Perkins relies in part on Frankie Pelham’s testimony that when he bought drugs from Perkins in 1988, rather than from Nugent or Williams-Davis, he was confident that the R Street Crew would not become aware of his purchases. Finally, Perkins maintains that Witherspoon’s testimony “contradicts the government’s theory of hierarchical control over a monolithic drug organization,” because, according to Witherspoon, directions and payment for a delivery he made for Nugent and Williams-Davis while “on loan” from Perkins came directly from Nugent, rather than through Perkins.
Although a jury could view the evidence as Perkins suggests, it was not required to do so and the evidence, as the government contends, was sufficient for a reasonable jury to find that Perkins repeatedly bought drugs from R Street Crew members, sold in the R Street Crew’s turf without being targeted for retaliation as were the Crew’s rivals, and shared at least one runner with the R Street Crew. Further, contrary to Perkins’ contention that the evidence showed only that he maintained a buyer-seller relationship with the R Street Crew, a reasonable jury could find that his relationship was more extensive and involved the R Street Crew’s overall drug operations. While a mere buyer-seller relationship is insufficient to show conspiratorial activity, where the evidence shows that a buyer procured drugs with knowledge of the overall existence of the conspiracy, he may be found to have entered into the conspiratorial agreement.
See United States v. Theodoropoulos,
*242 2. Sufficiency of the Evidence for RICO Conspiracy Conviction
Perkins’ challenge to his RICO drug conspiracy conviction is no more persuasive. Under 18 U.S.C. § 1962(c), it is unlawful for an individual “employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate directly or indirectly in the conduct of such enterprise’s affairs through a pattern of racketeering activity....” An “enterprise” includes “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(d).
See also United States v. Turkette,
Perkins does not dispute that the government presented sufficient evidence to show the existence of the RICO enterprise, namely the R Street Crew, but rather contends that the evidence was insufficient to convict him of RICO conspiracy because the government failed to prove the two predicate offenses and that he participated in the direction and control of the enterprise. Perkins’ first contention is meritless because the government presented sufficient evidence to prove his involvement in the drug conspiracy. His second contention rests on the proposition that the direction and control requirements set forth in
Reves v. Ernst & Young,
In
Reves,
the Supreme Court held that to be convicted of a substantive RICO offense under § 1962(c), “one must participate in the operation or management of the enterprise itself.”
Id.
at 185,
The four circuits that have confronted the contention that the management and control test set forth in
Reves
should apply to RICO conspiracy charges brought under § 1962(d) have split. Prior to
Reves,
a majority of the circuits had held that § 1962(d) is violated when a defendant agrees to join in the commission of a substantive RICO offense, regardless of whether he agrees to commit personally two predicate acts.
See, e.g., United States v. Pryba,
The view that the usual legal standards applicable to criminal conspiracy should apply to § 1962(d) is in accord with this court’s pr
e-Reves
statement in
Danielsen v. Burnside-Ott Aviation Training Center, Inc.,
Regardless of which approach this circuit adopts, Perkins’ challenge to his RICO conviction fails. Under the pr
e-Reves
approach noted in
Danielsen,
3. Material Variance Between Indictment and Evidence at Trial
Perkins also contends that he was prejudiced by a material variance between the
*244
indictment and the evidence at trial, maintaining that the evidence demonstrated the existence of multiple conspiracies and not simply the one drug conspiracy charged in the indictment.
See, e.g., Kotteakos v. United States,
Perkins confuses two independent claims, neither of which has merit. His contention that witnesses failed to establish that he was aware of the R Street Crew or that his own narcotics dealings were dependent upon that network simply rephrases his sufficiency challenge to his drug conspiracy conviction, which we have concluded is meritless. His second contention, that the government’s failure to prove the existence of an overarching conspiracy resulted in a material and prejudicial variance between the indictment and the proof presented at trial, is unpersuasive because Perkins has neither defined nor identified the several conspiracies that he claims the evidence showed. Even if, as Perkins maintains, Sparrow’s testimony “illuminated the ups and downs of the ‘R’ Street [Crew],” that the organization’s strength and activities may have varied over time does not negate evidence of the existence of an overarching conspiracy. The cases on which Perkins relies are distinguishable because each involved evidence showing the existence of identifiable multiple conspiracies.
See, e.g., United States v. Durades,
4. Jury Instmction
Perkins further contends that the district court erred in refusing to instruct the jury on his theory of defense that the government’s evidence showed multiple conspiracies and possible drug activity by him that was unconnected to the R Street Crew. In his view, the jury instructions failed to address two points essential to his defense: first, that proof of a buyer-seller relationship is insufficient evidence of a conspiratorial agreement, and second, that to convict of conspiracy, the jury had to find, in addition to evidence of the existence of a conspiracy, that he was a member of the same conspiracy charged in the indictment. As a general rule, the refusal to give an instruction requested by the defendant is reversible error only if the instruction is substantively correct, not already substantially covered in other instructions given to the jury, and concerns an important point in the trial such that the failure to give it seriously impairs the defendant’s ability to present effectively his defense.
See United States v. Taylor,
Perkins requested the district court to instruct the jury that:
It is the position of the defendant Derrin Perkins that he is not a member of the drug or RICO conspiracy that is alleged by the government in this indictment. He has denied any illegal association or agree *245 ment with any of the persons the government claims are co-conspirators. He has denied the commission of all of the predicate acts upon which the RICO charge is based.
The government has presented several witnesses who claimed to have knowledge of Mr. Perkins’ drug activities. You are instructed that a single sale, distribution or transaction does not constitute the crime of conspiracy to distribute drugs. You are also instructed that a simple buyer-seller relationship alone does not furnish the requisite evidence of a conspiratorial agreement. Thus, you are instructed that if you find that Mr. Perkins committed a single act and nothing more, you must acquit him of the charge of drug conspiracy.
If, on the other hand, you find that the defendant Perkins did engage in actions consistent with his membership in a criminal conspiracy, you must find that he was a member of the same conspiracy alleged in this indictment in order to convict him in this case. However, if you find that he was a member of another conspiracy, albeit a conspiracy with the same methods and goals, you must acquit Mr. Perkins of that charge.
The district court agreed to give the first paragraph of Perkins’ proposed instruction, but ruled that the second and third paragraphs were covered by other instructions. Perkins responded that he did not want the court to give only the first paragraph of the instruction; if the court was unwilling to give the remaining paragraphs, Perkins stated that he did not want the first paragraph to be included in the jury instructions.
Perkins’ requested instruction misstated the law on buyerseller relationships in narcotics conspiracies, and hence the district court properly refused to include it in the instructions to the jury. Instead, the district court properly instructed the jury on the role of buyer-seller relationships in narcotics conspiracies.
5
Perkins proposed that the jury be told that “a simple buyer-seller relationship alone does not furnish the requisite evidence of a conspiratorial agreement,” without also being advised that a buyer may be found to be a member of a conspiracy if he is aware of the structure of the conspiracy and the participation of third parties, and if he profits from and intends to further the conspiracy.
See, e.g., Sobamowo,
*246 kins’ theory of defense was properly presented in the jury instructions, he fails to show reversible error.
C. Andre Williams’ and Derrin Perkins’ Prosecutorial Misconduct Claims
Appellants Derrin Perkins and Andre Williams contend that their convictions must be reversed because of prosecutorial misconduct during opening argument to the jury. The touchstone of a prosecutorial misconduct claim is prejudice: the court must consider “the probable effect the prosecutor’s [statements] would have on the jury’s ability to judge the evidence fairly.”
United States v. Young,
As to both appellants, the prosecutor’s opening statement to the jury stated that the government would present evidence that would implicate the defendant in certain criminal activities, no evidence of which was ultimately produced at trial. Regarding Williams, the prosecutor told the jury that the government would show that he was involved in the murder of Joel Mays, a drug operator who was a rival of the R Street Crew. 7 The murder of Joel Mays was charged solely as a racketeering act in the RICO counts in the indictment. When the government failed to present any evidence relating to this murder, the district court dismissed the racketeering act at the close of the government’s case. Williams contends on appeal that he was prejudiced by the government’s statement that it would present evidence to show his role in the Joel Mays murder when no such evidence was introduced at trial. In denying Williams’ motions for a mistrial, the district court found that there was no evidence of bad faith by the prosecutor, who explained that he was unable to present the evidence because the witness upon whom he was relying was uncertain whether Andre Williams or Darryl Williams was present at the murder. The district court also noted that a substantial period of time had lapsed between the time of the opening statement and the time that the jury commenced its deliberations. Finally, the court offered to instruct the jury, if Williams so desired, to disregard the prosecutor’s references to the Joel Mays murder during the opening argument because no evidence on the matter was introduced at trial. During closing argument, Williams’ counsel argued to the jury that the government’s case lacked credibility in light of the government’s failure to produce evidence of Williams’ alleged role in the Mays murder. The district court, in turn, instructed the jury that opening state *247 ments were not evidence, and that the jury was not to consider “in any way that allegation [relating to the Joel Mays murder] against Andre Williams. You should not even discuss that allegation during your deliberations.”
Regarding Derrin Perkins, the prosecutor stated in his opening argument to the jury that the government would prove sixteen facts at trial to show that Perkins began selling drugs on the street like the other members of the Crew, and rose in the ranks to work at the drug stash house, eventually playing a key role in enabling the conspiracy to continue after other leaders were jailed and enhancing its financial success through a money laundering scheme involving the leasing of expensive automobiles under the names of nominees. 8 Perkins contends that the government provided no evidence regarding some of these facts at trial; as to others, Perkins contends that any evidence of illicit activity was unconnected to him. Most prejudicial, Perkins contends, was the prosecutor’s statement to the jury that after Perkins’ arrest he confessed to an FBI agent that he was guilty of most of the conduct that was later charged in the indictment. In denying Perkins’ motions for judgments of acquittal at the close of the government’s ease-in-chief and at the close of all the evidence, the district court ruled that the prosecutor had represented in opening argument what he in good faith had thought he could prove, that some of the facts could reasonably be inferred from evidence at trial, that in closing argument defense counsel had seized upon the government’s failure to prove the facts promised in the prosecutor’s opening statement, and that, as a result, Perkins suffered no prejudice in light of the evidence introduced by the government at trial.
On appeal, the government concedes, as it must, that it failed to produce evidence supporting its opening statement. In
Williams-Davis,
which involved the trial of high-level members of the R Street Crew, the court characterized similar errors as “severe misconduct.”
It is true, as the government points out, that during closing arguments the defense is free to call to the jury’s attention the fact that the government has failed to present evidence that it promised, and to that extent its case is suspect, being weaker than the jury might originally have thought based on the prosecutor’s opening statement. But this approach places an unfair burden on the defense in cases like Williams’ where, as the district court noted, defense counsel may wish to avoid reminding the jury of activities for which no evidence was offered at trial. Defense counsel might well have preferred to avoid referring to the Joel Mays murder out of concern that doing so would only serve to engrain Williams’ link to this violent act. Given the other evidence of Williams’ involvement with the R Street Crew and its penchant for violence against rival drug operations, defense counsel would undoubtedly be concerned that a special instruction would remind the jury that another murder had occurred and that Williams was likely implicated as a result of the evidence of his working relationship with the R Street Crew. To avoid such difficulties, an opening statement to the jury should be carefully phrased to avoid overstatement, and the prosecutor should refrain from pledging to present highly inculpatory evidence of a defendant’s guilt, unless the prosecutor has carefully cheeked the government’s witnesses to be as certain as is reasonably possible that the promised evidence will be forthcoming at trial. See id. at 507. The prosecutor’s failure to exercise such restraint with respect to the Joel Mays murder is particularly troubling because the prosecutor in the first of the R Street Crew drug conspiracy eases, involving high-level members of the organization, was faulted on precisely the same point, failure to deliver on a promise of evidence that a defendant was implicated in the Joel Mays murder. See id. at 506-07. Moreover, while Williams has not presented any basis for the court to disturb the district court’s finding that there was no evidence of bad faith by the prosecutor, in Perkins’ case, insofar as we are aware, the government easily could have called the FBI agent to testify about Perkins’ confession and it is unclear why the government failed to do so. Any prejudice to Perkins was, arguably, compounded by the number of failures of proof.
Having said this, we recognize that the complexity of large, multiple defendant drug conspiracy trials means that prosecutors may overstate their promises of evidence because of genuine confusion about which defendants are implicated in particular conspiratorial activities and as result of the unreliability or equivocation of certain witnesses.
See id.
(citing
Frazier v. Cupp,
While we do not doubt the severity of the misconduct by the prosecutor during the opening statement nor ignore the potential prejudice it may have caused, given the overwhelming evidence of Williams’ and Perkins’ involvement in illegal drug sales and related illegal activities of the R Street Crew, we conclude that the prosecutor’s failures to produce evidence to support the opening statement were harmless.
See United States v. Young,
D. Failure to Inform Jury of Andre Williams’ Juvenile Acquittal
The district court refused to permit Andre Williams to cross-examine a police officer concerning his acquittal in juvenile court for the conduct that was the subject of Racketeering Act 5, which charged him with possession with intent to distribute PCP, marijuana and cocaine on November 14, 1984. Appellant asserts that the court’s decision violated his Fifth, Sixth and Fourteenth Amendment rights and denied him the opportunity to present his theory that while he may have been in the presence of individuals engaged in drug activity, he was not a part of it. Appellant cites
Washington v. Texas,
The district court “enjoys wide discretion to control cross-examination.”
Harbor Ins. Co. v. Schnabel Found. Co., Inc.,
We find it difficult to conceive how evidence of appellant’s acquittal in juvenile court supports the proposition that, although he “hung out” with friends engaged in drug dealing, he was not himself involved in the illegal conduct. According to appellant’s description of the juvenile proceeding, none of the other juveniles with whom he was tried were convicted in juvenile court; thus the outcome of the juvenile proceeding does not suggest that Andre was a good guy even though the people around him were breaking the law. We see no relevant, non-hearsay purpose for testimony he sought to elicit and we conclude that the district court did not abuse its discretion in excluding the testimony.
In his briefs, appellant suggests that the transcript of the juvenile proceeding could have been used to impeach the police officer who testified about the offense during the adult conspiracy trial. Because this argument was not raised below, we consider it waived.
E. The Validity of Andre Williams’ RICO Conspiracy Conviction
The jury convicted Andre Williams of RICO conspiracy and found that he committed four predicate acts to the RICO conspiracy. One of the predicate acts was Racketeering Act 40, which alleged maintenance of a premise for the purpose of unlawfully manufacturing, storing, distributing and using PCP. The government has conceded that the jury was not instructed on the elements of that offense and that it cannot serve as a predicate act for appellant’s RICO conspiracy conviction. The jury verdict with respect to Racketeering Act 40 therefore is vacated.
Appellant argues that Racketeering Act 5, which charged him with possession with intent to distribute PCP, marijuana and cocaine on November 14,1984, should also be vacated because he was found not guilty of the same offense after a juvenile proceeding in the Superior Court for the District of Columbia. Because appellant’s claim rests on his prior acquittal of the offense reproduced in Racketeering Act 5, his claim is one of collateral estoppel, which “bars relitigation between the same parties of issues actually determined at a previous trial____”
Ashe v. Swenson,
A conviction for RICO conspiracy requires that a defendant have agreed to a pattern of racketeering activity, which means at least two acts of racketeering activity. 18 U.S.C. §§ 1961(5), 1962. With Racketeering Act 40 vacated and, assuming for the moment that Racketeering Act 5 also is vacated, Andre Williams’ conviction for RICO conspiracy still rests on two predicate acts: Racketeering Act 1, which charged appellant with conspiracy to distribute and possess with intent to distribute a controlled substance, and Racketeering Act 33, which charged him with possession with intent to distribute PCP and marijuana on March 24, 1988. Appellant contends that the conduct that formed the basis for Racketeering Act 33 also formed the basis for a substantive offense charged in Count 24 of the indictment, of which the jury *251 acquitted Andre Williams. Appellant argues that once Racketeering Acts 5 and 40 are vacated, the inconsistent verdicts with respect to Racketeering Act 33 and Count 24 leave only one certain conviction for a predicate act and, therefore, require reversal of the RICO conspiracy conviction.
Although superficially appealing, appellant’s argument places far too much significance on the meaning of inconsistent verdicts. The Supreme Court has explained that “inconsistent verdicts — even verdicts that acquit on a predicate offense while convicting on the compound offense should not necessarily be interpreted as a windfall to the Government at the defendant’s expense.”
United States v. Powell,
The burden of jury lenity falls on the government, which cannot challenge an inconsistent acquittal because of the Double Jeopardy Clause of the Constitution. On the other hand, where there has been an inconsistent verdict, the criminal defendant is protected against jury irrationality and error by a review of the sufficiency of the evidence.
United States v. Vastola,
In this case appellant has not challenged the sufficiency of the evidence for his conviction of Racketeering Act 33. Thus, even assuming that the verdicts are inconsistent, we see no reason to depart from the established rule that inconsistent verdicts rendered in the same proceeding ordinarily cannot be upset.
United States v. Powell,
F. McKinley Board’s and Gregory Thomas’ Conflict of Interest Claims
Board, joined by Thomas, argues that the trial court erred when it refused to grant Board’s motion for a mistrial, and later when it denied his motion for a new trial, because Board’s attorney had previously represented a witness (Kenneth Sparrow) who testified on the government’s behalf.
Bernard Grimm represented Board throughout this trial, and had previously represented Thomas in 1988 on charges stemming from a drug arrest. In April 1991, Sparrow testified before the R Street grand jury. In September 1991, following Sparrow’s arrest for carrying a pistol without a license, Grimm began representing Sparrow. Grimm did not know that Sparrow had testified before the grand jury; indeed, Grimm asked Sparrow if he had testified, but Sparrow lied — supposedly because he did not trust Grimm to keep his confidence. Grimm withdrew from his representation of Sparrow in June 1992, when Sparrow initially appeared as a witness in the first R Street trial.
When Sparrow took the stand on October 28, 1992, to testify in this trial, Grimm (still representing Board) objected because of his prior representation of Sparrow, and Thomas’ counsel objected on the ground that Sparrow may have learned facts about the R Street Crew from Grimm. Judge Revercomb initially decided to sever Board from the trial because of the risk that Grimm might have to appear as a witness, but at the prosecutor’s urging, Judge Revercomb brought Sparrow in for voir dire. Sparrow was represented by counsel and, after waiving any attorney-client privilege he may have had with respect to his dealings with Grimm, testified that Grimm had not asked him any questions about other R Street defendants, and that he did not discuss activities on R *252 Street with Grimm. Grimm confirmed the accuracy of Sparrow’s testimony.
On the basis of this testimony, Judge Revercomb reversed his decision to sever Board and directed that the jury hear Sparrow’s testimony. At the close of that day’s evidence, Judge Revercomb directed Grimm to check his files for “any matters” having “any relationship at all to a possible conflict in this case,” but Grimm never brought anything else to the judge’s attention. Although Judge Revercomb instructed Sparrow not to mention his previous representation by Grimm, Sparrow later mentioned in front of the jury the fact that he had been represented by Grimm.
A defendant can prevail on a conflict of interest claim — a type of ineffective assistance of counsel claim — under
Cuyler v. Sullivan,
The government contends that Grimm 9 did not have a conflict of interest because “[g]iven the attorney-client waiver by Sparrow, it is not obvious, to say the least, what constraints attorney Grimm’s prior representation of Sparrow could have put on Grimm’s examination of that witness.” In other words, because Sparrow waived the privilege, Grimm was not placed in the position of having to choose between the interests of different clients.
But Board puts the alleged conflict a different way:
[T]he government’s use of Sparrow and the district court’s failure to sever Appellant Board created a “Catch 22” for [Grimm]. Once [Sparrow] waived the privilege he had had with [Grimm], [Grimm] was theoretically in a position to impeach [Sparrow] with [Sparrow’s] he to him over the period of his representation. Although any other, non-involved attorney, once learning of the lie, might have impeached [Sparrow] with it, this attorney could not touch the issue without endangering Board, whose defense was to distance himself from the alleged co-conspirators.
And, the argument goes, if testimony reflected that Board and Sparrow had been represented by the same attorney, the jury would have thought that “Board and Sparrow were interrelated to the extent that they had the same lawyer at the same time, ‘Mafia Style.’ ” Thus, Grimm was placed in a dilemma: either impeach Sparrow (about his lie to Grimm) through Grimm’s own testimony and possibly create a connection between Board and Sparrow, or not impeach and lose an opportunity to discredit Sparrow, a key government witness.
It is not clear how Board’s characterization of the dilemma manifests an actual conflict of interest. Grimm was faced with a strategic decision that lawyers are often faced with: placing a perhaps unfavorable witness (Grimm) on the stand. But having to make a difficult strategic decision is not the same thing as being faced with a choice between the client’s interest and someone else’s. Even under Board’s characterization of the alleged “conflict,” Grimm had only Board’s interest to advance.
*253
There is, to be sure, another way to characterize the conflict. At trial, Judge Revereomb was principally concerned with making Grimm a witness in the trial; in fact, he made every effort to avoid it. It could be thought that Grimm’s adverse interest lay in not testifying
at all;
that is, he may have had an independent reason for not testifying (such as a fear of perjury or unfavorable treatment from the judge) which prevented him from wanting to impeach Sparrow. The conflict would thus have been between Board’s possible interest in having Grimm testify and Grimm’s interest in not testifying. But Board has not demonstrated that Grimm had any such personal interest; the only asserted interest is Board’s strategic interest in not linking Board with Sparrow. Board simply “has failed to demonstrate that [Grimm] ever advanced his own, or another client’s, interest to the detriment of [Board].”
Bmce,
Without any conflict of interest, Board is left asserting a standard ineffective assistance claim under
Strickland,
G. McKinley Board’s Challenge to RICO Convictions
Board also claims that his substantive RICO and RICO conspiracy convictions should be vacated because, under
United States v. Lopez,
III.
Appellants also raise various joint and individual claims to their sentences. We consider first appellants’ objection to the replacement of the trial judge, then lay out the general legal framework for attributing drug amounts to conspirators, and consider individual sentencing claims.
A. Replacement of Trial Judge
Appellants jointly argue that Judge Hogan improperly sentenced them because the “case lasted three months ... many of the government witnesses contradicted not only each other, but themselves as well, and ... the sentencing court could not make any credibility determinations because the sentencing judge saw none of the government’s case____ [T]he sentencing judge was not in *254 a position to determine each individual’s criminal liability based solely on a reading of the transcript.” (Emphasis added). Insofar as this is an argument that Judge Hogan could not sentence appellants because he did not preside over the entire trial or because he did not sufficiently familiarize himself with the record, it does not provide a basis for reversal.
Rule 25 provides:
(a) During Trial. If by reason of death, sickness or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court, upon certifying familiarity with the record of the trial, may proceed with and finish the trial.
(b) After Verdict or Finding of Guilt. If by reason of absence, death, sickness or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting in or assigned to the court may perform those duties; but if that judge is satisfied that a judge who did not preside at the trial cannot perform those duties or that it is appropriate for any other reason, that judge may grant a new trial.
Fed. R.Crim. P. 25. Although we have not directly addressed the scope of review of a decision to proceed under Rule 25(a), we have declined to find an abuse of discretion in a decision
not
to substitute a new judge under Rule 25(a),
United States v. Lynch,
Although the complexity of a case and the abundance of evidence typically determine the extent of the review necessary to familiarize a successor judge with the record,
compare United States v. Makes Room,
At the heart of appellants’ argument is the contention that the credibility of the government’s witnesses was of paramount importance and that Judge Hogan was incapable of assessing the credibility of these witnesses. But Judge Hogan found, in sentencing Andre Williams, that to the extent that witnesses contradicted one another, “they eonflict[ed] with each other because they were talking about different aspects of the case and because of the different levels of involvement they themselves had.” Appellants have not contested this finding, nor have they identified on appeal any specific inconsistencies. Judge Hogan did not abuse his discretion in the manner in which he replaced Judge Revercomb.
B. Relevant Conduct
Under the Sentencing Guidelines, the district court determines a defendant’s base offense level by delineating his “relevant conduct,” U.S.S.G. § 1B1.3; in drug-related offenses the base offense level depends on the amount of drugs involved in the “relevant conduct.”
See
U.S.S.G. Ch. 2, Pt. D. In the case of jointly undertaken criminal activity, “there are two substantive limita
*255
tions on a defendant’s responsibility for acts undertaken by eo-conspirators: Those acts must be ‘in furtherance of the same conspiracy to which the defendant has agreed, and they must be reasonably foreseeable to the defendant.”
Childress,
A district court cannot simply assume reasonable foreseeability or scope; rather, the district court is required to make “particularized findings” about both the scope of the agreement and “the basis on which it finds the amount of drugs reasonably foreseeable to th[e] individual defendant.”
Id.
(citing
United States v. Edmond,
C. Derrin Perkins
For purposes of sentencing, the district court assigned Derrin Perkins a base offense level of 43 by attributing to him all of the drugs handled during the duration of the conspiracy, from 1983 to 1991, and adding one level for the employment of a person under 18 years of age to distribute a controlled substance. See U.S.S.G. §§ 2Dl.l(a)(3)(c)(l), 2D1.2(a)(3) (1992). The court added a two-level enhancement for possession of a firearm, see id. § 2D1.1(b)(1), and a two-level enhancement for participation as a manager or supervisor in the conspiracy. See id. § 3Bl.l(c). Perkins’ total offense level was 47, which was treated as 43 under the Guidelines, pursuant to U.S.S.G. Ch. 5, Pt. A. With a criminal history category of II, the Guidelines sentencing range for all three of Perkins’ convictions was life imprisonment, and the district court sentenced him to three concurrent life sentences. On *256 appeal, Perkins challenges the amounts of drugs attributed to him pursuant to his relevant conduct in the conspiracy and the weapons enhancement. We conclude that his challenges lack merit.
Perkins maintains that the district court failed to examine the scope of his conspiratorial agreement and to determine whether the amount of drugs attributed to him was reasonably foreseeable to him, as required by
Childress,
The district court addressed each of Perkins’ contentions and concluded that “[t]he recitation of the conduct of the organization in which Mr. Perkins was found to be involved by the Jury ... seems to support ... the findings in the presentence report that [Perkins] was engaged in these activities.” The court referred, by name, to the testimony of Witherspoon, Cherry, and Brookholder 14 with regard to the amount of drugs involved in the conspiracy and its link to Perkins, and found that Perkins “was engaged in a conspiracy with the others and was engaged in substantial distribution activities along with Odenga Dyson for distributing PCP.” The court relied upon the evidence of Perkins’ use of the green Mercedes Benz at a time when he was unemployed, and referred to the testimony of several witnesses to the effect that Perkins associated with the other defendants socially as well as conspiratorially. The court found the testimony of Rosalind Cherry regarding the ten drug deliveries to be “particularly telling,” and noted the testimony of Officer Kenneth Parker that Perkins was tied to the R Street Crew, as well as testimony of other witnesses who referred to Odenga Dyson’s delivery of drugs to Perkins. Although the district court concluded that Perkins was not one of the major directors of the R Street Crew on a level with Anthony Nugent or Kevin Williams-Davis, the court concluded that he was substantially involved with the organization’s distribution of drugs, even though at times Perkins “was off on his own selling drugs.” The court specifically found that:
[T]here is evidence that Mr. Perkins was engaged in the distribution of drugs back in ’85 from Lieutenant Melvin Scott and right through ’89, as the Jury found, with the use of juveniles to distribute drugs and Dax Nelson’s testimony that Mr. Perkins was a distributor and a supplier of major amounts of PCP and cocaine to several people at different locations.
*257 It seems to the Court this is the kind of evidence that makes it clearly foreseeable to the Defendant that the amount of drugs that had been assessed in this drug ring are fairly attributable to the Defendant.
In addition, the district court referred to Sparrow’s testimony in concluding, “independently of the Jury’s verdicts,” that all the drugs distributed by the conspiracy, as calculated in the presentence report, were reasonably foreseeable to Perkins, given his position and the fact that the drags were being sold constantly in the area in which he operated. The court noted that, in order to assure the success of the R Street Crew, Perkins assisted in making deliveries and selling drags, and that he also used the organization for his own benefit, by purchasing drugs wholesale and reselling them for personal profit.
The district court’s findings were more extensive than those found to be inadequate in
Childress,
and more thorough than those in
United States v. Anderson,
Although the attribution of such large quantities of drags may suggest need for detailed findings, we conclude on balance that the district court’s findings adequately addressed Perkins as an individual conspirator and did not simply lump him together with other members of the R Street Crew. Having captured the nature of his individual activity, both within and outside the conspiracy, the district court’s findings adequately addressed the scope of Perkins’ conspiratorial agreement and the reasonable foreseeability to him of all the drags distributed by the R Street Crew.
See Booze,
Perkins also challenges the two-level enhancement of his sentence for use of firearms in the conspiracy. The district court found that “[t]here was no question that there were firearms used during the conspiracy, Dyson supplied [Perkins] with PCP directly, was armed, and [Perkins] was aware of that.” The court also found that “[g]uns were reasonably foreseeable,” and that Perkins had actual knowledge that guns were used during the course of the conspiracy.
Perkins can hardly dispute that there was abundant evidence demonstrating that he handled large quantities of drags' and that the R Street Crew engaged in violent activity involving guns when the organization sought to crash rival drag operations. Although there was no direct evidence that Perkins knew that Odenga Dyson was armed when he delivered drags to Perkins, direct evidence was not required.
See United States v. Salamanca,
D. Andre Williams
Andre Williams was convicted of RICO conspiracy (Count 2) and narcotics conspiracy (Count 3). The district court assigned him a base offense level of 42 by attributing to him all of the drugs handled by the conspiracy during its duration from 1984 through 1990, see U.S.S.G. § 2Dl.l(a)(3)(c)(l), then added a three-level enhancement for participation as a manager or supervisor in the conspiracy and a two-level enhancement for possession of a firearm. See U.S.S.G. §§ 2Dl.l(b)(l), 3Bl.l(b). His total offense level was 47, which is treated as 43 under the Guidelines. U.S.S.G. Ch. 5, Pt. A, comment, to the Sentencing Table (note 2). With a criminal history category of I, the Guidelines imprisonment range for both RICO conspiracy and narcotics conspiracy was life imprisonment and appellant was sentenced to two concurrent life sentences.
Andre Williams challenges (1) the attribution to him as relevant conduct of all the drugs handled throughout the R Street Crew’s six-year existence; (2) the enhancement of his base offense level for his role as a manager or supervisor in the conspiracy; (3) the attribution as relevant conduct of all drugs handled by the conspiracy before he turned eighteen years old, an objection joined by Donnell Williams; (4) the attribution as relevant conduct of drugs handled by the conspiracy after he allegedly withdrew from the conspiracy; and (5) the district court’s refusal to grant him a downward departure based on his youthful lack of guidance.
1. Attribution of Drugs as Relevant Conduct
The district court held Andre Williams accountable for all of the criminal conduct of the R Street Crew, specifically relying on (1) the jury’s guilty verdicts for narcotics conspiracy, RICO conspiracy and the RICO conspiracy predicate act involving maintenance of drug premises, (2) the testimony of Margaret R. Williams and other cooperating witnesses, (3) appellant’s excessive spending, and (4) appellant’s involvement in the murder of Joel Mays and in various street crimes.
The district court found that the jury verdicts showed “the defendant’s involvement in the racketeering offense conspiracy ... as well as the narcotics offense” and that “he was involved in the maintenance of a stash house in the home of Margaret R. Williams, his aunt, as charged.” 4/21/94 Tr. at 38. The court inferred from “the jury’s conduct alone ... that the jury believed [Andre Williams] was involved at an important level in the operation of the narcotic and RICO conspiracy____” Id. Appellant contends that reliance on the jury verdicts for the purpose of determining the amount of drugs that should be attributed to him as relevant conduct was clear error because the jury was instructed that a defendant need not be a major player in order to be convicted of the conspiracy counts and because the jury was never instructed on the elements of the offense of maintaining a premise.
It is indeed true that, according to the instructions delivered to the jury, Andre Williams could have been convicted of the conspiracy offenses without the jury finding that the conduct of his co-conspirators was foreseeable. A sentencing court may in appropriate circumstances consider a jury verdict,
see Childress,
The district court’s erroneous consideration of these verdicts does not automatically require us to remand the case for resentencing, however.
United States v. Root,
In addition to mentioning the convictions, the district court recounted how cooperating witness Margaret R. Williams
observed [Andre Williams] in drug transactions ... early on in this matter [and] stored drugs for them____ [S]he had seen [Andre Williams] in the home in connection with drug trafficking. Although she never said that he went down apparently to the basement and actually packaged the drugs, [she testified] that he was there when others were packaging and would speak to them about what was going on.
4/21/94 Tr. at 39. The court determined that “[t]here is no question her home was a center for the storage and manufacture of large quantities of drugs, both PCP and marijuana____” Id. The court also referred to testimony by Margaret R. Williams that “[Andre Williams] went forward for several years in this operation, and even toward the end, after he had a job and perhaps you could hope that he had gotten out of the situation, he went and talked to Margaret [R.] Williams concerning her proposed testimony____” Id. at 41. The district court relied on Margaret R. Williams’ testimony as evidence of appellant’s conduct, his relationship to and knowledge of the conspiracy and the duration of his involvement in the conspiracy.
Appellant challenges the court’s reliance on Margaret R. Williams’ testimony to support any inference that he was involved in witness intimidation on behalf of the conspiracy. 15 We see no error in the district court’s mention of appellant’s discussion with Margaret R. Williams. The district judge did not characterize the discussion as evidence of witness intimidation, but rather evidence that Andre Williams continued to associate with members of the conspiracy and remained concerned about the conspiracy’s affairs for its entire duration.
The district court also explained that the collective testimony of Kenneth Sparrow, Maurice Brooks, Charles Smith, and Dax Nelson
establishes that Mr. Andre Williams was identified as an operator of this ring along with his brothers on a lesser level than as a leader, that is at the top supervisory level, but certainly as a lieutenant, where he went from selling drugs to delivering drugs to collecting monies to enjoying the success of the ring by engagement of the Mercedes-Benz, and to helping to enforce the ring’s operational areas in the sense of the Joel Mays involvement ... having ammunition in his room and guns in the house ... to protect the stash and the monies. There’s also evidence that he directed the operation for a short time when his brothers were out of town.
*260 4/21/94 Tr. at 40. Appellant challenges the court’s reliance on the testimony of these government witnesses because it did not tie him to a specific quantity of drugs and because the witnesses made conflicting statements.
Appellant’s contention that the witnesses did not connect him to a specific quantity of drugs sold by the conspiracy misses the point of the relevant conduct inquiry. A defendant need not have touched every gram of PCP-laced marijuana and cocaine base in order for it to be attributed to him as relevant conduct. The court relies on evidence of a defendant’s relationship to and involvement with the conspiracy in order to draw permissible inferences regarding his knowledge and agreement to be part of a drug or RICO conspiracy and the foreseeability of his co-conspirators’ conduct. The court’s findings concerning the nature and extent of the defendant’s relationship to the conspiracy are used as a basis for a conclusion about whether he should be held vicariously liable for the conduct of his co-conspirators. In a chain conspiracy such as the R Street Crew, extensive involvement in the conspiracy over the life of the operation could lead the court to conclude that one member should be held accountable for all of the drugs sold by the entire conspiracy. Thus, for example, the district court’s reference at sentencing to the presence of guns in appellant’s house is not intended to link him to any particular quantity of drugs, but rather to describe appellant’s relationship to the conspiracy, his level of involvement and his knowledge of the conspiracy’s activities. Similarly, the sentencing court’s description of Williams’ “purchase of a Mercedes automobile at a very young age, paying over $12,000 in repairs for it in cash, at least that, almost $14,000 within a year,” 4/21/94 Tr. at 39, and “the trips he’s taken to Las Vegas and Atlantic City as a very young man, a teenager,” id, may not be directly traceable to the sale of a particular quantity of drugs, but it does support the district court’s inference that Andre Williams, a teenager with no source of income except the sale of drugs, was receiving profits from the conspiracy.
Appellant argues that the testimony of the cooperating witnesses in this trial, however, was either internally inconsistent or in conflict with the testimony of other witnesses and, because the district court did not actually hear the testimony of the government’s witnesses, it should have been wholly disregarded. The specific testimonial conflict identified by appellant involves some witnesses calling him a seller, some calling him a runner, some calling him a lieutenant and some saying that he was not involved at all. Our review of the sentencing record shows that the district court did not rely in assessing Williams’ accountability on the “title” that the various witnesses used to describe his involvement with the R Street Crew. The court’s findings refer rather to specific activities in which witnesses observed Andre Williams engaging and which, in the court’s judgment, led to the conclusion that Andre Williams was a significant player in the R Street Crew’s operation for many years. Appellant has identified no conflicting testimony about these actions described by the witnesses and we find no error in the court’s reliance on their uncontradicted testimony to show Andre Williams’ role in the conspiracies.
Finally, in discussing Williams’ involvement, the court referred to appellant’s “history of [] arrests on the street along with others who were identified as co-conspirators in this case in distributing of drugs, ... [and] his history of involvement with the Joel Mays matter, the killing____” 4/21/94 Tr. at 39. Appellant objects to the district court’s mention of the Joel Mays murder because the government did not present any evidence regarding the murder at trial. Andre Williams’ presentence report recounts that on March 26, 1988, Joel Mays was approached by Neil Hilliard, Ronnie Isler and Andre Williams and was told that he could not distribute drugs in their area. According to the report, when Mr. Mays refused to comply Mr. Isler got a gun and shot Mr. Mays. In connection with the murder Andre Williams entered a plea, without admitting his guilt, to the charge of simple assault and possession of a prohibited weapon.
See North Carolina v. Alford,
To sum up: our assessment of the district court’s sentencing determination indicates that the court made one error; it inferred a higher level of involvement in the conspiracy from the jury verdicts than was permissible. Nevertheless, any conclusions that the district court erroneously drew from the jury verdicts could properly be drawn from the other evidence relied on by the court. That evidence proved by a preponderance of the evidence that Andre Williams was involved in the selling, storage and distribution of drugs and the protection of inventory and territory, that he enjoyed the conspiracy’s profits, that he communicated with upper-level members of the Crew and that he was involved in managerial activities. Extensive involvement of this kind over the life of the conspiracy supports the sentencing court’s conclusion that Andre Williams agreed to participate to the fullest extent in the R Street Crew conspiracy and that, accordingly, the drug dealing conduct of his co-conspirators was reasonably foreseeable and should be attributed to him.
2. Managerial Enhancement
The Sentencing Guidelines provide for an enhancement of the base offense level if the district court finds that “the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive....” U.S.S.G. § 3Bl.l(b). In considering whether a defendant was a manager or supervisor, the sentencing court looks at the defendant’s exercise of decision-making authority, the nature of his partic-
ipation in the commission of the offense, his recruitment of accomplices, any claimed right to a larger share of the fruits of the crime, the degree of his participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control or authority he exercised over others. U.S.S.G. § 3B1.1, comment, (note 4). The district court enhanced Andre Williams’ base offense level after determining that he functioned as a lieutenant with managerial responsibilities. In applying the enhancement to Williams, the court referred to the same evidence that it relied on for its relevant conduct determination.
Appellant objects that the court cannot conclude that he supervised others because the jury acquitted him of Count 18, which charged him with employment of persons under the age of eighteen for the purpose of distributing drugs. Appellant insists that the acquittal demonstrates that the jury rejected testimony concerning his role as a supervisor. The Sentencing Guidelines instruct the sentencing court to consider the numerous factors listed above, no one of which is determinative. An acquittal on any one count concerning supervisory conduct proves only that the government did not prove that particular count beyond a reasonable doubt. It does not mean that the court cannot draw on the evidence presented at trial in support of that count to determine by a preponderance of the evidence under the enumerated factors that Andre Williams was a lieutenant or manager in the R Street Crew.
United States v. Watts,
— U.S. -,-,
3. Attribution of Drugs Handled by the Conspiracy Prior to Appellants’ Eighteenth Birthdays
Andre Williams, joined by Donnell Williams, contends that the Sentencing Guidelines do not permit him to be held vicariously liable for the conduct of co-conspirators in furtherance of the R Street Crew conspiracy that took place prior to his reaching the age of eighteen. Andre Williams joined the conspiracy in 1984 when he was fifteen years old. He turned eighteen on May 15, 1987, and was twenty-two years old when the original indictment in this case was filed. Donnell Williams became a member of the conspiracy when he was eleven years old. He turned eighteen on December 18, 1989, and was nineteen when he was indicted for this offense.
Appellants cite Application Note 2 to U.S.S.G. § 1B1.3, which states that “a defendant’s relevant conduct does not include the conduct of members of a conspiracy prior to the defendant
joining
the conspiracy, even if the defendant knows of that conduct.” (emphasis added). The agreement to join is central to conviction for a drug conspiracy because neither common law nor the drug conspiracy statute require proof of any overt act by a conspirator in furtherance of the conspiracy.
United States v. Shabani,
Appellants analogize the agreement to join a conspiracy to the agreement to be bound by a contract and point out that, under generally recognized legal principles, individuals under the age of eighteen are not considered to have the “capacity” to enter a contract. Restatement (Second) op Contracts §§ 12, 14 (1981). Because interpretive Guidelines’ commentary ordinarily is considered authoritative,
Stinson v. United States,
The application note relied on by appellants was added to the Guidelines in 1994 in order to
clarifly] the operation of § IB 1.3 with respect to the defendant’s accountability for the action of other conspirators prior to the defendant joining the conspiracy. The amendment is in accord with the rule stated in recent case law.
See, e.g., United States v. Carreon,
U.S. Sentencing Guidelines Manual app. C, amend. 503 (1995). Although appellants were sentenced under a version of the Guidelines issued prior to 1994, a “clarifying” amendment to the Guidelines generally has retroactive application.
See, e.g., United States v. Carrillo,
Nor do we find support in the common law or relevant legislation for the proposition that the legal fiction employed in contract law to protect minors from their immaturity and inexperience in commerce, and from the snares of unprincipled people who would exploit them, applies as well to their engagement in criminal activity. In criminal cases at common law age was only relevant in the application of legal presumptions. It was conclusively presumed that a child under the age of seven years could entertain no criminal intent and thus was incapable of committing a felony.
Allen v. United States,
The FJDA carved out an exception to these common law principles in order to encourage rehabilitation of juveniles, but the Act did not change the common law conception that a juvenile was capable of committing a criminal act. Under the FJDA, violations of law committed by a person younger than eighteen are considered acts of juvenile delinquency rather than crimes. A person not yet twenty-one who committed such an act ordinarily may not be prosecuted as an adult in federal court and generally is placed into state juvenile court systems or proceeded against in a juvenile delinquency proceeding in the district court. 18 U.S.C. § 5032. This is because he is considered still rehabilitatable outside the regular criminal process. Such defendants receive special rights and immunities, are shielded from publicity, are confined apart from adult criminals and are protected from certain consequences of adult conviction.
See In re Sealed Case,
There is no question, however, that juveniles may be prosecuted for juvenile delinquency based on violations of federal law that would constitute crimes of conspiracy if committed by adults.
E.g., United States v. De Leon,
*264
While we disagree in the main with appellants as to the application of U.S.S.G. § IB 1.3 Note 2 to their situation, we do conclude that in the case of a defendant younger than twenty-one at the time of the indictment who joined a conspiracy prior to reaching eighteen, the government must either obtain a transfer of the defendant to adult status or prove that the defendant personally engaged in some affirmative act in furtherance of the conspiracy after turning eighteen before the court may attribute to him as relevant conduct drugs sold by co-conspirators before he reached age eighteen. Although Andre and Donnell Williams were prosecuted for violations of federal conspiracy law committed before as well as after reaching age eighteen, neither one was accorded any of the procedural protections guaranteed by the FJDA. The fact that Andre had reached his twenty-second birthday by the time that he was indicted for offenses arising out of his membership in the R Street Crew placed him outside of the Act’s protection. 18 U.S.C. § 5031;
United States v. Hoo,
Under piior circuit precedent, the fact that Donnell continued to participate in the R Street Crew after reaching age eighteen permitted his prosecution as an adult for membership in the conspiracy
See Strothers,
The circuits have not ruled uniformly, however, about whether a defendant like Donnell Williams, who continues to participate in the conspiracy after age eighteen may be held liable as an adult for the illegal acts he committed during the juvenile period of his participation in the conspiracy without an FJDA transfer proceeding. This issue, in turn, has a strong bearing on the question before us as to whether such a defendant can be held liable for the conduct of co-conspirators at the time he was a juvenile. For, if a post-eighteen defendant who ratifies in any way his earlier participation in a conspiracy may be held liable as an adult for those earlier juvenile acts, then there can be little question but that under conspiracy doctrine he can be held liable for co-conspirators’ acts during the juvenile period as well.
Cf. Cruz,
The Fourth Circuit first confronted the issue in an autotheft conspiracy case in which Rusty Spoone, Jr., the son of the scheme’s ringleader, was convicted of a single conspiracy count.
Spoone,
The Eleventh Circuit, in
United States v. Cruz,
The Sixth Circuit followed Spoone’s reasoning and explicitly held that the government must prove post-majority acts in furtherance of the conspiracy in order to convict a person whose involvement in the conspiracy commenced prior to her eighteenth birthday. The court stated that “a defendant cannot be held liable for pre-eighteen conduct, but such conduct can, of course, be relevant to put post-eighteen actions in proper context.”
Maddox,
The FJDA requires certification by the Attorney General as well as a hearing and specific findings of fact by a district judge before a juvenile may be transferred into adult court. Thus, juvenile non-criminal treatment is the rule for wrongful acts including conspiracy committed prior to age eighteen and adult criminal treatment the exception which must be governed by the particular factors of each juvenile’s individual case.
Cf. Harling v. United States,
The FJDA nowhere specifically addresses the treatment to be accorded a juvenile whose involvement in a conspiracy spans his or her eighteenth birthday. The only rationale that any court has offered for ignoring the FJDA totally when a defendant continues to participate in a conspiracy after turning eighteen years old is the
Cruz
court’s “common sense” notion that “Congress did not intend to bifurcate the prosecution of any continuing offense which began prior to the defendant’s reaching the age of eighteen and continued thereafter.”
Cruz,
In the case of Donnell Williams, the jury was not given a limiting instruction and evidence of his juvenile conduct was admitted at trial as evidence of guilt. We have previously held in
Strothers,
Once it is determined that Donnell Williams was properly prosecuted and convicted in adult court of narcotics and RICO conspiracy, we reach the final question of how the Sentencing Guidelines are applied to a conviction for a conspiracy that straddled the defendant’s eighteenth birthday. Our decision today rests on the premise that adult involvement in such a conspiracy permits the district court to assert adult jurisdiction over the offense without there being an FJDA transfer hearing. The adult conduct ratifies the juvenile agreement to join the conspiracy and the juvenile participation in the conspiracy.
See Maddox,
4. Withdrawal From Conspiracy
Appellant Andre Williams contends that the absence of any evidence at trial that he sold, packaged, processed, or distributed drugs or that he otherwise participated in the R Street Crew conspiracy after October 22,1990, when he commenced employment at the Government Printing Office demonstrate that he had withdrawn from the conspiracy and should not be held accountable for drugs handled by the conspiracy after that date. He points to no evidence, however, that demonstrates an affirmative effort to withdraw from the conspiracy by communicating that intent to his co-conspirators.
A conspiracy is an “ongoing offense that lasts, absent one’s affirmative withdrawal from the enterprise, as long as
any
coconspirator continues to further common ends____”
Childress,
5. Downward Departure for Youthful Lack of Guidance
A sentence must be within the applicable Guideline range unless the court “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b). Departures from the presumptively applicable Guideline range are discretionary.
United States v. Sammoury,
Appellant requested a downward departure based on youthful lack of guidance. The mitigating circumstance of lack of youthful guidance may exist when “a past condition ... may have led a convicted defendant to criminality.”
United States v. Floyd,
[h]e was raised in a household with a mother and stepfather present. Even though there were concerns of drug dealing with him, there’s no indication that he was abused or neglected as a child. He did eventually obtain employment. There’s no indication he couldn’t have left and gone away from this as he became an adult, and therefore I don’t see any basis for any departure under the Ninth Circuit cases cited by the defendant. United States v. Floyd,945 F.2d 1096 , a 1991 Ninth Circuit case, because of the defendant’s youthful lack of guidance had a significant effect on both his past criminality and on his commission of the instant offense, according to that court.
.... I am cognizant of the fact he missed a majority of time in his tenth [sic] grade. He did very poorly in school, but that relates to his being out drug dealing, and I don’t think that follows that he had a youthful lack of guidance, where he’s had some stable family members in his home, *269 and I think as he got more mature and became a little older, he had plenty of time therefore to strike out on his own, but chose not to.
4/21/94 Tr. at 44^15.
Appellant argues that the court’s factual findings were clearly erroneous because the court found that his drug-dominated environment was stable. Although we recognize the significant — arguably overwhelming — negative influences in appellant’s childhood environment, we cannot find the district court’s findings clearly erroneous. The court recognized that it had the authority to grant a departure for youthful lack of guidance, acknowledged the involvement of virtually every member of appellant’s family in drug activity, yet decided not to depart from the ordinary Guideline range. While another decision would have been entirely legitimate, the district court has virtually unreviewable discretion not to depart and, accordingly, we do not disturb its decision here.
E. Donnell Williams
For sentencing purposes, the district court assigned appellant Donnell Williams 20 a base offense level of 42 by attributing to him all of the drugs handled during the conspiracy. 21 See U.S.S.G. § 2Dl.l(a)(3)(e)(l). The court added a two-level enhancement for possession of a firearm. See id. § 2D1.1(b)(1). Agreeing with Williams’ objection to the suggestion in the presentenee report that he receive a supervisory role enhancement, see id. § 3Bl.l(b), the district court applied a total offense level of 44, which is treated as 43 under the Guidelines pursuant to U.S.S.G. Ch. 5, Pt. A. With a criminal history category of I, the sentencing range under the Guidelines for Williams’ conspiracy convictions was life imprisonment. The district court sentenced Williams to life imprisonment on both conspiracy counts, to 240 months imprisonment for drug distribution, and to 48 months imprisonment for the use of a communications facility in connection with drug transactions, all sentences to run concurrently. Williams challenges the drug quantities attributed to him as a result of his relevant conduct in the conspiracy and the weapons enhancement; neither challenge has merit. 22
Williams contends that the district court failed to make individualized findings at sentencing regarding the scope of his conspiratorial agreement and the reasonable foreseeability of the drug quantities to him. Because Williams fails to demonstrate that any failure by the district court to enter sufficiently particularized findings at sentencing could be harmful, the alleged failure cannot result in a remand. See Childress, 58 F.3d at 724. The evidence of Williams’ involvement in the R Street Crew was overwhelming. He was a runner throughout the conspiracy, engaged with the leaders of the organization both as to his pay and the organization’s retaliatory activities against rival drug operations, and personally and repeatedly participated in the organization’s acts of violence. For example, Dax Nelson testified that Williams, along with Sparrow and Maurice Brooks, sold drugs at Lincoln and R for Darryl Williams in 1987 and 1988. Chris Smith testified that Williams sold drugs on R Street in 1987, worked for Darryl Williams, Jeffrey Williams, and Andre Williams, and went on several occasions to *270 the “shop” 23 to mix PCP. Sparrow testified that in late 1988 and early 1989, Williams was one of several runners selling drugs under his supervision, and sometimes went with Sparrow to turn in money to Darryl Williams; Sparrow paid Williams $400-500 per week. Moreover, Sparrow recounted that once he paid Williams less than he thought he deserved and Williams complained to Jeffrey Williams, who gave him additional money.
Several other witnesses testified regarding Williams’ high level of involvement with the R Street Crew. Witherspoon testified that when he began selling for the R Street Crew in 1987, Williams was already selling for the organization at Lincoln and R. Frankie Pelham, who began working for the R Street Crew in 1988, testified that Williams and several others sold at Lincoln and R Streets every day, and that they all worked for Darryl Williams and Jeffrey Williams, reporting to several intermediate lieutenants. Rosalind Cherry testified that Williams worked for Odenga Dyson and McKinley Board, and that in the summer of 1989, she saw Williams and the other runners selling drugs on R Street. Maurice Brooks testified that Williams was still selling drugs on R Street in early spring 1989, and continued to sell drugs for Darryl Williams and Jeffrey Williams throughout the summer of 1989. Brooks also testified that when someone “shot up” R Street, he and Williams and other runners met with McKinley Board, and when Board discovered money missing from his room, he and Dyson threatened the runners with guns and forced them to return the money.
Brooks also testified about a staged robbery he and Williams committed for Darryl Williams. Stephoun Hartwell testified that he sold drugs with Williams on R Street under the supervision of Board and Dyson. Williams also was implicated in several of the R Street Crew’s acts of violence. Finally, on two occasions in 1990, undercover officers bought drugs from Williams. 24 Given the overwhelming evidence of Williams’ drug activities throughout the duration of the conspiracy, his Childress claim fails.
Williams’ challenge to his weapons enhancement similarly fails. The evidence demonstrated that on repeated occasions Williams carried a gun in relation to his role in the R Street Crew’s activities, and that Williams was present on several occasions when members of the R Street Crew sought violent retaliation against rival gangs. The district court determined that the two-level increase for use of weapons applied based on the evidence that Williams had participated in the armed robbery of two purchasers from the conspiracy and a taperecorded conversation in which Williams said that he had obtained a .38 caliber pistol. Due to the overwhelming evidence of Williams’ role in the organization’s acts of violence, the district court did not err in enhancing his sentence.
F. Gregory Thomas
As with the other appellants, Judge Hogan attributed the total amount of drugs to Thomas, which yielded a base offense level of 43. See U.S.S.G. §§ 2Dl.l(a)(3)(c)(l), 2D1.2 (1992). Judge Hogan then imposed a three-level increase for Thomas’ managerial role in the conspiracy, U.S.S.G. § 3Bl.l(b); a two-level increase for possessing a firearm on the basis of Thomas’ 1987 Superior Court conviction for possession of a pistol, U.S.S.G. § 2D1.1(b)(1); and a two-level increase because Thomas allegedly had threatened a family member of a government informant, U.S.S.G. § 3C1.1 (obstruction of justice). These increases yielded an adjusted offense level of 50, which under the Sentencing Guidelines is treated as a total offense level of 43.
*271 Thomas raises six challenges to his sentence: (1) the Ex Post Facto Clause and rule of lenity prohibit application of the Sentencing Guidelines to him because his involvement with the conspiracy began before the adoption of the Sentencing Guidelines; (2) the disparity between his actual sentence and the sentences received by government informants constitutes a punishment for his exercise of his right to trial; (3) Judge Hogan improperly attributed the total amount of drugs involved in the conspiracy to him; (4) there was no credible evidence supporting the three-level enhancement for his role as a manager in the conspiracy; (5) there was no evidence that his sentence should have been enhanced for weapons possession; and (6) there was no credible evidence that Thomas had threatened a relative of a government informant. We reject each of these arguments.
1. Application of Sentencing Guidelines to Pre-Enactment Conduct
Thomas (joined by Donnell Williams) argues that the Sentencing Guidelines cannot be applied to his conspiracy convictions without running afoul of the
Ex Post Facto
Clause. In
United States v. Dale,
Thomas also argues that the rule of lenity requires that sentencing be based only on
post-enactment
conspiratorial conduct— particularly where Thomas’ involvement in the conspiracy was already effected by November 1, 1987. Thomas’ argument is that the provision of the Sentencing Act of 1987, Pub.L. No. 100-182, § 2(a), 101 Stat. 1266 (1987), codified at 18 U.S.C. § 3551 note (1994), which provided that the Sentencing Guidelines “shall apply only to offenses committed after” November 1, 1987, is ambiguous as to the applicability of the guidelines to offenses begun before and continuing after November 1, 1987. In support of this position, Thomas cites
United States v. Story,
in which the court found the statutory language ambiguous, but ultimately held that the Guidelines apply to straddling conspiracies.
As the government argues, however, the rule of lenity is only applicable ■ where there is an ambiguity that cannot be resolved through other methods of statutory interpretation. The Supreme Court has stated that:
The rule of lenity, however, is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of the Act, such that even after a court has seize[d] every thing from which aid can be derived, it is still left with an ambiguous statute. The rule comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.
Chapman v. United States,
Thomas argues, again citing Story, that the rule of lenity should apply because the Sentencing Guidelines impose harsher penalties on defendants in drug cases than did the prior sentencing regime. Thomas relies on the following passage from Story:
[T]he interpretation issue we face does not arise in a context in which a new sentencing arrangement always yields higher sentences than the prior system. Were that the case, the rule of lenity might support *272 an interpretation favoring broad application of pre-Guidelines law.
We believe, as the government argues, that since the Sentencing Guidelines apply to “straddling” conspiracies, sentencing should be based on all of the conspiratorial conduct, not just the conduct that occurred post-enactment. As one of our sister circuits put it: “Since the guidelines affirmatively direct the sentencing court to include relevant conduct in furtherance of the conspiracy offense when calculating the guidelines ranges, and since there is absolutely no indication that Congress intended to prohibit the court’s reliance on such conduct simply because it occurred prior to the guidelines’ effective date, we find no merit to appellant’s argument that the court improperly relied on drug deliveries which occurred prior to November 1, 1987.”
United States v. Terzado-Madruga,
2. Sentencing Guidelines as a Sanction on Exercise of Right to Go to Trial
Thomas (again joined by Donnell Williams) argues that he was unconstitutionally punished for going to trial. Thomas rejected a government offer of a plea to the general conspiracy statute, 18 U.S.C. § 371, and a sentence of five years — an offer which required cooperation and testimony from Thomas — and proceeded to trial, after which he was sentenced to life. Thomas does not contend that the district court’s sentencing determination was meant to penalize him for the exercise of his right to go to trial, nor does he offer any evidence that the prosecutor’s initial charging decision was designed to penalize him. Instead, his argument is simply that the difference between the plea bargain sentence of five years (which was received by others who cooperated with the government) and his actual sentence of life imprisonment impermissibly infringed on his “right to go to trial.”
As the government points out, Thomas’ argument is quite similar to the argument made in
Bordenkircher v. Hayes,
*273 Thomas claims that Bordenkircher is inapplicable because the Supreme Court was never confronted with a “robotic sentencing system” which “virtually guarantee[s]” that the decision to proceed to trial will result in a much greater sentence. But Thomas simply does not explain how his situation differed from the defendant’s in Bordenkircher: Thomas was fully aware that he was exposing himself to the possibility of a huge sentence; he points to no evidence that the prosecutor was motivated by a desire to punish him for exercising his right to go to trial; and he knowingly declined a five-year sentence.
3. Drug Attribution, and Managerial and Weapons Enhancements
Thomas argues that the district court erred in attributing the total amount of drugs to him, in imposing a three-level enhancement for his role as a manager, and in enhancing his sentence for weapons possession. 25 As to Thomas’ involvement in the conspiracy, Judge Hogan found that:
There’s no question to the Court’s mind that the evidence supports a finding that Mr. Thomas, as a coconspirator, is responsible for the acts of the other coconspirators and for the quantity of drugs overall that were distributed as a result of this conspiracy.
He was not a runner ... or a mule who delivered some drugs one time. The evidence supports the findings as it goes to his objections about being enhanced as a lieutenant. The evidence supports that he did supervise street sellers, the runners; that he was close to some of the R Street Crew’s leaders; that he was engaged in violent activities of various kinds and as a result of which he was evidently attempted to be murdered by other individuals allegedly involved within the Bailey organization [a rival gang]; that there’s no question in the Court’s mind the evidence supports a finding that he was a lieutenant in the organization. He was trusted with delivery of guns or had proceeds of drugs as well as handled and actively oversaw drug runners on the streets, according to the convictions in this case as well as the other evidence in the case.
Additionally, his assessment for two levels for possession of a handgun, he was convicted of carrying a handgun on August 13, 1987, in the R Street area at the time that there was testimony there was an ongoing situation with the Edmunds group in an attempt to control territory.
It seems to the Court additionally that that is a fair assessment of two levels, because the dangerous weapon was possessed and obviously it occurred during the time of this conspiracy and was in the same area and was testified to as, according to the government’s witness, as being related to the drug organizational work.
Thomas does not offer any reasons for rejecting these findings as clearly erroneous; instead, he simply asserts that there was no evidence supporting them. But this is not the case: the evidence established that Thomas was a runner selling daily for the organization as early as 1985; that Thomas was a partner of the gang’s leaders; that he paid and supervised runners; that he stabbed a rival dealer over gang turf; that he helped organize retaliatory strikes against members of other gangs; that he sold a gun to a member of the organization; and that he was convicted of gun possession in 1987. The evidence clearly supports the attribution of the total amount of drugs to Thomas, the enhancement for his role as manager, and the enhancement for weapons possession.
4. Obstruction of Justice Enhancement
Thomas also contends that there was no credible evidence supporting his obstruction of justice enhancement. At Thomas’ sentencing, Judge Hogan accepted the finding of the Probation Office that Thomas had threatened a family member of a possible government informant. But the pretrial testimony and pleadings relied upon by the Probation Office were simply proffers by the govern *274 ment that Thomas had made this threat; the government never introduced independent evidence of the threat. Although Thomas never introduced evidence rebutting these proffers, he did contest the evidence supporting them, and we do not believe the proffers, without more, support the enhancement. But even without the enhancement, Thomas’ adjusted offense level would have been 48, which is treated as a total offense level of 43, the same total offense level for which he was sentenced. We thus need not remand for resentencing.
Accordingly, we affirm the judgments of conviction.
Notes
. The jury also acquitted a sixth defendant, Steve Williams, of all charges.
. See
United States v. Wynn,
. Sparrow, who lived at 319 Rock Creek Church Road during a period of time in 1987, testified that he and Andre Williams packaged drugs in the basement and delivered drugs to R Street. The police executed search warrants at 319 Rock Creek Church Road on March 24, 1988, recovering liquid PCP and a heat-sealer, and on June 15, 1990, recovering over $11,400 in cash, cocaine, heroin, a money counter, electric scales, two handguns, and other drug packaging paraphernalia.
. By contrast, the First and Second Circuits require the government to prove that a defendant agreed to commit personally two or more predicate crimes to be convicted of RICO conspiracy.
See United States v. Ruggiero,
. The district court instructed the jury, in pertinent part:
You should not base your determination of the guilt or innocence on the extent of a defendant’s participation in the alleged conspiracy. A defendant may be convicted as a conspirator even though he or she plays a minor role in the conspiracy, provided that you find beyond a reasonable doubt that the conspiracy existed, and that the defendant knowingly participated in the conspiracy with the intent to encourage, advise, or assist other conspirators. Similarly, a buyer or customer of a conspiracy's product who knowingly assumes a role instrumental to the success of the conspiracy, including evidence that the buyer was among the selling group's best customers, maintained a close relationship with the selling group and upon whose participation and cooperation the selling group's endeavors in some part depended, may also be deemed a member of the conspiracy.
. The district court instructed the jury that:
In this case, some of the defendants contend that the government’s proof fails to show the existence of only one overall conspiracy. Instead, there may be evidence that there were actually several separate and independent conspiracies with various groups of members. Whether there existed a single unlawful agreement, or many such agreements, or indeed, no agreement at all is a question of fact for you, the jury, to determine in accordance with the instructions I am about to give you.
When two or more people join together to form one common unlawful design or purpose, a single conspiracy exists. By way of contrast, multiple conspiracies exist when there are separate unlawful agreements to achieve distinct purposes.
Proof of several separate and independent conspiracies is not proof of the single, overall conspiracy charged in the indictment, unless one of the conspiracies proved happens to be the single conspiracy described in the indictment.
[I]f you find that the conspiracy charged in the indictment did not exist, you cannot find any defendant guilty of the single conspiracy charged in the indictment ...
[I]f you find that a particular defendant was a member of another conspiracy, and not the one charged in the indictment, then you must *246 thus acquit the defendant of the conspiracy charge.
. In his opening statement to the jury, the prosecutor said:
You will hear that on March 26, 1988, the same day Frankie Pelham will tell you that he was down there selling drugs and was arrested, that another individual by the name of Joel Mays was in the area of Lincoln Road and R Street and he was selling drugs. It is uncertain. The evidence is not clear where he got his drugs.
The evidence will show, ladies and gentlemen, that during the course of that evening, he was confronted by, among other people, Andre Williams, Neal Hilliard, also known as Neal, an indicted member of this conspiracy who is half way down the list here, one of the lieutenants for the R Street conspiracy, and another person by the name of Ronnie Isler, Goobley, also known as Goobley.
You will hear that Mr. Hilliard, Mr. Isler and Mr. Williams told him, you shouldn’t be selling down on R Street. This is our turf. You go down the street. And you will hear that Joel Mays made the same mistake that Alton Clea made. He disrespected the people. He refused to go.
And you will hear testimony and when he did that, Ronnie Isler went to a grey Pathfinder, which you'll hear a lot of testimony about, the Pathfinder nominally owned by a woman named Valerie Williams, but in fact owned by Darryl Williams, went there and got a .38 caliber gun, came back and shot Mr. Mays to death, shooting him six times.
This is the way the evidence will show the R Street organization dealt with any breaches of their organization.
.In his brief, Perkins sets forth the sixteen facts that the government promised but failed to prove:
1. Perkins paid $16,000 for a 1987 Mercedes Benz and that he agreed to pay another $43,000 for this automobile.
2. Perkins brought his friends into the car leasing scheme.
3. Perkins started selling marijuana at North Capitol and Randolph Place.
4. An FBI Special Agent would testify that Perkins confessed to selling marijuana at Lincoln Road and R Street.
5. Perkins started selling drugs on R Street like everybody else.
6. Perkins was one of the people who kept the R Street operation going after the leaders of the Crew were no longer present following the shooting death of Alton Clea, a member of a rival gang.
7. Perkins worked from a stash house at 11 R Street which was known as "Tee-Tee's” apartment.
8. Perkins put juveniles to work selling drugs on S Street.
9. Perkins sold cocaine from his family's house at 137 Quincy Place.
10. Perkins assisted the R Street Crew by being the first person to work out the car purchasing scheme.
11. Perkins was the first person to work out the car scheme in April 1987, and that he was followed by Dariyl Williams, Andre Williams, Anthony Nugent, Kevin Williams-Davis, and Jeffrey Williams.
12. Perkins recruited Christopher Williams to sell drugs at an R Street satellite location at First and Quincy.
13. Perkins was supplied with liquid PCP by Gerard Bailey.
14. Joe McGainey was a runner for Perkins and was arrested while driving a car leased to Tracy Beaty.
15. Tracy Beaty was the person who set up automobile deals so that members of the R Street Crew could have expensive cars.
16. Joe McGainey did not claim the car that he was driving when it was seized, but Perkins did claim it as part of his automobile leasing scheme.
. It is not apparent what conflict of interest Thomas is relying upon; after all, his attorney at trial had never represented Sparrow, and he points to no reason to suspect that his attorney would not have vigorously defended him. (Thomas does not make an individual argument on the conflict of interest claim; he simply joins Board's argument.)
. Board’s reliance on
Derrington v. United States,
.
See, e.g., United States v. Booze,
. The paragraph on Perkins states:
Derrin A. Perkins was a runner for and then an associate of the R Street organization. Information obtained from the Government revealed the defendant was selling marijuana and cocaine for the Organization in 1985. He branched out on his own by 1986 and the R Street organization became a source in which he would purchase large quantities of drugs. The defendant had his own runners in and around Quincy Place, N.E. They were selling marijuana and phencyclidine. Testimony revealed Mr. Perkins was selling cocaine in the R Street area in 1985, as well as marijuana and PCP.
. Perkins also objected to the application of the Sentencing Guidelines to conduct occurring before the Guidelines had become effective, see infra pp. 272-273, and to the failure of the presentence report writer to conduct an independent investigation of the evidence. He does not raise these contentions on appeal.
. This appears to be a reference to the testimony of Alvin Buckhalter, the R Street Crew's Los Angeles narcotics supplier, who testified that he recognized Perkins from having seen him on R Street talking with Kevin Williams-Davis.
. The trial record indicates that Margaret R. Williams described an encounter with Andre Williams’ mother in which the mother recommended that the witness "not say anything” to the government. The following exchange then took place between Ms. Williams and the prosecutor:
Q: ... [D]id you speak to anyone else?
‡ ‡ 5f= 4! Sfc *
A: I believe Andre had came over the next day?
Q: And what was it you said to Mr. Andre Williams?
A: He asked the same thing [ ] what did they ask me, and I told him. He was saying, well, they don’t, you know, have nothing and they don’t have no proof, they don't have no evidence.
Q: And what, if anything, did he advise you to do?
A: He did not advise me to do anything.
11/5/92 Tr. at 62.
. The government contends that the court need not reach this issue with respect to Andre because the drug calculation methodology used in the presentence report and accepted by the district court would result in a sufficiently high calculation of drugs to give Andre a base offense level of 42 solely for his post-majority conspiratorial conduct. We cannot agree because the district court never specified the quantity of drugs handled by the conspiracy prior to Andre’s eighteenth birthday and the quantity handled afterward.
. If the Attorney General certifies to a district court that there is a “substantial Federal interest in the case or the offense” and certain enumerated circumstances exist, the district court must conduct a hearing and make findings of fact in six areas that are considered indicative of the juvenile’s rehabilitative potential before determining whether transfer to adult court is in the interest of justice. 18 U.S.C. § 5032. In certain circumstances the transfer may be mandatory rather than discretionary. Id.
. Rusty originally was charged with three substantive offenses alleged to have been committed prior to his eighteenth birthday. After realizing that the FJDA would preclude an adult trial, the government dropped the charges with respect to the substantive offenses and pursued only the conspiracy offense, which alleged post-majority participation.
. The Guidelines were amended in 1992 to prohibit departures based on youthful lack of guidance. U.S.S.G. § 5H1.12. Because the instant offense occurred prior to the amendment to the Guidelines, and retroactive application of the amendment would violate the
Ex Post Facto
Clause,
United States v. Johns,
. References hereinafter to “Williams” are to Donnell Williams, unless otherwise stated.
. Williams was convicted of RICO conspiracy (Count 2), narcotics conspiracy (Count 3), distribution of five or more grams of cocaine base (Count 93), and use of a communication facility in connection with that offense (Count 94). The district court granted Williams’ motion for judgment of acquittal on the count of substantive RICO (Count 1).
. Williams’ contention that the sentence of life without parole violates the Eighth Amendment, because there is no evidence that he could have reasonably foreseen the distribution of drugs equivalent to 300,000 kilograms of marijuana, is meritless. The district court rejected Williams' Fifth and Sixth Amendment claims, noting that Williams had had an opportunity to enter a plea and chose not to, and was not being assessed special punishment because he chose to go to trial. We find no basis to disturb the district court’s conclusion. To the extent Williams challenges his sentence as violative of due process, it is meritless. See infra pp. 272-273. His Eighth Amendment challenge, if viewed separately, is unsubstantiated and vague.
. The "shop” refers to one of the R Street Crew’s stash houses, belonging to Andre Williams' uncle and aunt. The government presented evidence that beginning in 1987, and continuing for one or two years, the R Street Crew packaged PCP and marijuana in the basement of the shop three times a week.
. An undercover officer for the Metropolitan Police Department purchased crack cocaine from Donnell Williams on March 15, 1990. Another officer testified that he arrested Williams and Hartwell on February 21, 1990, following a lookout broadcast by an undercover officer who had observed them engage in a drug transaction.
. Thomas principally contends that these sentencing determinations were erroneous because they considered conduct occurring before the enactment of the Sentencing Guidelines; as this argument fails, see supra pp. 270-272, we construe these challenges to his sentence as applying to pre- and post-enactment conduct.