(caption unavailable)

* Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens
on the legal profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 92-8556
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JACK DONALD BAXTER, WANDA PEARL BAXTER,
and CHARLENE F. NUNLEY,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
October 15, 1993
Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Jack Donald Baxter, Wanda Pearl Baxter, and Charlene F. Nunley
appeal their convictions of one count of conspiracy to possess
amphetamine with intent to distribute. Finding no error in the
convictions or sentences of Jack Baxter or Nunley, we affirm as to
them. Finding that the evidence was insufficient to support Wanda

-- 1 of 13 --

2
Baxter's conviction, we reverse her conviction.
I.
Cade Warner, an unindicted co-conspirator, was arrested on or
about October 22, 1991. A search of his residence revealed a small
stock of amphetamine, some marihuana, and $18,000 in cash. After
questioning by the Texas Department of Public Safety ("DPS"),
Warner agreed to cooperate with Texas authorities in the investiga-
tion of his source of amphetamine. He named Jack Baxter as his
source and stated that amphetamine from Baxter sometimes was
delivered to Warner by Nunley.
Around December 13, 1991, Warner called Jack Baxter's
residence several times to arrange for the purchase of amphetamine.
Authorities recorded a total of six of these conversations between
Warner and Jack Baxter and between Warner and Nunley. Jack Baxter
told Warner that when the amphetamine was ready, "Charlene" would
make the delivery.
DPS officers then set up a surveillance operation and followed
Nunley. On December 13, 1991, they stopped her four to five miles
away from where she was to meet Warner and, with her consent,
searched her car. In the trunk, they found a paper sack on which
Warner's initials had been written. Inside the sack they found
four heat-sealed plastic packages, each of which contained
approximately twenty-seven grams of amphetamine. They also found
a thermos containing $440 in cash and a memo book containing
Warner's phone number. The DPS officers arrested Nunley.

-- 2 of 13 --

3
The officers then went to Jack Baxter's residence and
requested his consent to a search. Baxter consented and signed a
written consent form. In a workshop building located at the rear
of the property, the officers observed several pieces of glassware,
bottles, and chemical containers. The building contained a strong
odor of amphetamine. In a separate room inside the workshop, they
found the bulk of Jack Baxter's amphetamine production equipment.
While the officers were searching the workshop, Jack Baxter
indicated that he wanted to call his attorney. He did so, then
informed the officers that, on the advice of his attorney, he was
withdrawing consent to their search. The investigating officers
discontinued their search and left to obtain a warrant. They
returned a short time later with a warrant and continued the
search.
The officers recovered $2,400 in cash from the residence;
three plastic bags containing amphetamine from the master bedroom;
one plastic bag containing less than a gram of amphetamine from
Wanda Baxter's purse; eight plastic bags containing amphetamine
from the workshop area; a paper sack containing amphetamine from
inside a red pickup truck parked on the premises; and trace amounts
of amphetamine from a plastic bowl and spatula in the workshop
area. In total, the officers recovered 1,570.72 grams of amphet-
amine from the Baxter property, the pickup truck, and Nunley's
vehicle.
Jack Baxter, Wanda Baxter, and Nunley were all charged with,
and convicted of, conspiracy to possess amphetamine with intent to

-- 3 of 13 --

4
distribute. They were sentenced, respectively, to 240 months', 121
months', and 78 months' imprisonment.
II.
Jack Baxter raises four points of error. He asserts that his
trial was barred by double jeopardy because of previous forfeiture
proceedings; that he was denied his right to a speedy trial; that
his consent to the search was not voluntarily given; and that the
search warrant was not supported by probable cause.
A.
This court reviews de novo Jack Baxter's contention that his
trial constituted double jeopardy. United States v. Botello, 991
F.2d 189, 192 (5th Cir.), petition for cert. filed (U.S. Sept. 2,
1993) (No. 93-5835). Jack Baxter's double jeopardy challenge is
based upon two prior proceedings against him. First, Jack Baxter
was subjected to a federal civil forfeiture proceeding. And
second, he was the defendant in a lawsuit brought by the State of
Texas for failure to pay controlled substances taxes.
In United States v. Halper, 490 U.S. 435, 448-49 (1989), the
Court held that a criminal conviction can bar a subsequent civil
penalty for the same act when the amount of the civil fine bears no
rational relation to the government's loss and is therefore a
second "punishment." We have recognized that the Halper principle
also applies when, as here, the civil penalty precedes the criminal
conviction. United States v. Sanchez-Escareno, 950 F.2d 193, 200

-- 4 of 13 --

1 The Dixon Court was badly fragmented and produced five separate
opinions. Nevertheless, we follow Justice Scalia's opinion abandoning the
"same conduct" test, as it received support from a majority. See generally
Mark A. Thurmon, Note, When the Court Divides: Reconsidering the Precedential
Value of Supreme Court Plurality Decisions, 42 DUKE L.J. 419 (1992).
5
(5th Cir. 1991), cert. denied, 113 S. Ct. 123 (1992). Therefore,
Jack Baxter argues, his prior civil forfeiture liability bars his
criminal conviction for the same acts.
This argument must be rejected on two grounds. First, in
United States v. McCaslin, 959 F.2d 786 (9th Cir.), cert. denied,
113 S. Ct. 382 (1992), the court held that the Halper principle
does not apply to civil forfeitures of the instrumentalities of
crime. "The forfeiture of such instrumentalities," the Ninth
Circuit explained, "is `independent of, and wholly unaffected by
any criminal proceeding in personam.'" Id. at 788. This author-
ity, while not binding on us, is persuasive.
Second, the recent holding in United States v. Dixon, 113 S.
Ct. 2849 (1993),1 has modified the double jeopardy standard. In
Dixon, the Court overruled its prior holding in Grady v. Corbin,
495 U.S. 508 (1990), to the effect that double jeopardy bars any
subsequent prosecution in which the government would have to prove
the same conduct as was the basis for the earlier conviction. In
rejecting Grady's "same conduct" test, the Dixon Court emphasized
that the "same elements" test of Blockburger v. United States, 284
U.S. 299 (1932), was the only hurdle the prosecution had to
overcome to escape a double jeopardy bar.
Under the Blockburger/Dixon "same elements" test, the central
inquiry is whether "each charge requires proof of a fact not

-- 5 of 13 --

6
required for the other." United States v. Liller, 999 F.2d 61, 63
(2d Cir. 1993). Under that standard, since the federal civil
forfeiture proceeding and the criminal conspiracy charge had some
different elements, Jack Baxter faced no double jeopardy when
prosecuted for both offenses. In addition, his double jeopardy
allegation based upon the Texas tax proceeding is barred by the
"dual sovereignty" exception to double jeopardy. See, e.g., Heath
v. Alabama, 474 U.S. 82 (1985); United States v. Harrison, 918 F.2d
469, 474-75 (5th Cir. 1990).
B.
With respect to Jack Baxter's allegation of a Speedy Trial Act
violation, we review the district court's factual findings under
the clearly erroneous standard and its legal conclusions de novo.
United States v. Holley, 986 F.2d 100, 103 (5th Cir.), cert.
denied, 1993 U.S. LEXIS 5042 (U.S. Oct. 4, 1993). Jack Baxter
contends that his federal criminal prosecution is barred by the
Speedy Trial Act, 18 U.S.C. § 3161(b), because the federal charges
were filed more than thirty days after his arrest. This argument
is frivolous. It is well settled, as even Jack Baxter concedes in
his brief, that an arrest by state authorities does not trigger the
Speedy Trial Act's thirty-day clock for filing federal charges.
United States v. Charles, 883 F.2d 355, 356 (5th Cir. 1989), cert.
denied, 493 U.S. 1033 (1990).
Jack Baxter attempts to invoke a purported exception to that
rule when there is "intentional prosecutorial manipulation" of the

-- 6 of 13 --

7
state arrest and federal indictment in order to circumvent the
Speedy Trial Act. He cites no authority binding in this circuit
for the existence of such an exception. Even if we recognized that
exception, though, there is no evidence of "intentional prosecuto-
rial manipulation" here )) indeed, federal authorities had no idea
who Jack Baxter was until well after his arrest by Texas authori-
ties.
C.
Jack Baxter's assertion that he never voluntarily consented to
the search of his property is a question of fact reviewed under a
clearly erroneous standard. United States v. Gonzales, 842 F.2d
748, 754-55 (5th Cir. 1988). Jack Baxter is no stranger to the
criminal justice system. He was no doubt aware of his right to
refuse consent even if the officers had not repeatedly told him he
had the right to refuse. Jack Baxter knew he was not in custody at
the time the request was made. Under the standard for voluntari-
ness stated in United States v. Phillips, 664 F.2d 971, 1023-24
(5th Cir. Unit B Dec. 1981), cert. denied, 457 U.S. 1136 (1982),
the district court did not err in holding that Baxter had volun-
tarily consented to the search.
D.
As to Jack Baxter's assertion that there was no probable cause
to support the search warrant for his property, we review the
district court's factual findings for clear error, and its

-- 7 of 13 --

8
conclusion that those facts were sufficient to constitute probable
cause de novo. United States v. 1988 Oldsmobile Cutlass Supreme 2
Door, 983 F.2d 670, 673 (5th Cir. 1993); United States v. Muniz-
Melchor, 894 F.2d 1430, 1439 n.9 (5th Cir.), cert. denied, 495 U.S.
923 (1990).
After Jack Baxter, on the advice of his attorney, withdrew his
consent to the search, the officers obtained a warrant. Jack
Baxter contends that the warrant was unsupported by probable cause
because the supporting affidavit was based upon information
collected during an involuntary search of his property.
Since we have concluded that the search of Jack Baxter's
property was voluntary, the objection is without merit. Under the
standard that "only the probability, and not a prima facie showing,
of criminal activity is the standard of probable cause," United
States v. Brown, 941 F.2d 1300, 1302 (5th Cir.) (quoting Spinelli
v. United States, 393 U.S. 410, 419 (1969)), cert. denied, 112
S. Ct. 648 (1991), the officers had more than sufficient evidence
to support a warrant.
III.
Wanda Baxter challenges her conviction and sentence on four
grounds. She claims that the evidence was insufficient to support
a conviction; that taped conversations were improperly admitted
into evidence; that the prosecution made improper closing argu-
ments; and that the sentencing court failed to make the requisite
factual findings.

-- 8 of 13 --

9
A.
Since Wanda Baxter filed a motion for judgment of acquittal
after the close of the prosecution's case in chief, we review her
challenge to the sufficiency of the evidence using the standard of
whether a reasonable jury could have found her guilty beyond a
reasonable doubt. United States v. Vaquero, 997 F.2d 78, 88 (5th
Cir. 1993); United States v. Mergerson, 995 F.2d 1285, 1289 (5th
Cir. 1993). The crime of conspiracy, 21 U.S.C. § 846, to possess
amphetamine with the intent to distribute has three elements: (1)
A conspiracy existed; (2) the defendant knew about the conspiracy;
and (3) with that knowledge, the defendant voluntarily became a
part of the conspiracy. United States v. Featherson, 949 F.2d 770,
774 (5th Cir. 1991), cert. denied, 112 S. Ct. 1771 (1992). The
government must prove each element beyond a reasonable doubt. We
find the evidence lacking regarding Wanda Baxter's voluntary
participation in the conspiracy.
The government asks us to infer Wanda Baxter's knowledge that
the conspiracy existed from the facts that she lived with Jack
Baxter and that a small quantity (less than one gram) of amphet-
amine was found in her purse. To infer her knowledge from those
facts does not seem unreasonable, and the government is entitled to
that inference in support of the verdict.
The government also asks us to infer, from those same facts,
Wanda Baxter's voluntary participation in the conspiracy. That
inference is not supported by the evidence. "The government must
show beyond a reasonable doubt that the defendant had the deliber-

-- 9 of 13 --

10
ate, knowing, and specific intent to join the conspiracy, and this
court will not `lightly infer a defendant's knowledge and acquies-
cence in a conspiracy.'" United States v. Gordon, 712 F.2d 110,
114 (5th Cir. 1983) (citations omitted). The government must prove
intent to participate in the illegal objectives of the conspiracy.
"A showing that the defendant merely associated with those
participating in a conspiracy is insufficient." United States v.
Jackson, 700 F.2d 181, 185 (5th Cir.), cert. denied, 464 U.S. 842
(1983).
The government offered no proof that Wanda Baxter involved
herself in the conspiracy in any way. She is never heard speaking
on any of the taped conversations the government recorded between
Warner and both Nunley and Jack Baxter. There is no evidence that
she was involved in the manufacture of amphetamine, nor that she
ever served as a courier or handled the proceeds of the illicit
drug sales. Her presence in the same house as Jack Baxter is not
sufficient to establish participation in a conspiracy, see, e.g.,
United States v. Onick, 889 F.2d 1425, 1432 (5th Cir. 1989), and
the government's informant, Cade Warner, testified that he believed
Wanda Baxter was uninvolved in the conspiracy.
The only evidence is the small quantity of amphetamine taken
from Wanda Baxter's purse. This fact merely establishes that she
may have used the drug; it does not establish her knowing partici-
pation in a conspiracy to possess the drug with intent to distrib-
ute it. On these facts, it is difficult to see on what basis a
reasonable jury could have reached the conclusion, beyond a

-- 10 of 13 --

11
reasonable doubt, that Wanda Baxter "voluntarily became a part of"
the conspiracy. Because the evidence does not support the verdict,
Wanda Baxter's conviction must be reversed and, as she may not be
retried, her indictment must be dismissed. Consequently, we do not
address her other claims.
IV.
Nunley challenges her conviction on the ground that the
evidence was insufficient to support her conviction. She also
contends that the district court erred in setting her base offense
level and not giving her a downward adjustment for her minor role
in the conspiracy.
A.
Because she filed no motion for acquittal, this court reviews
Charlene Nunley's challenge to the sufficiency of the evidence to
support her conviction for plain error, with the conviction to be
upheld unless doing so would result in a manifest miscarriage of
justice. United States v. Hernandez, 962 F.2d 1152, 1156 (5th Cir.
1992); United States v. Hall, 845 F.2d 1281, 1283 (5th Cir.), cert.
denied, 488 U.S. 860 (1988). We find that ample evidence supports
her knowing participation in the conspiracy. Nunley spoke with
Warner when he was soliciting the purchase of amphetamine from Jack
Baxter. She told Warner about Baxter's need to "do another cook,"
a reference the government relies upon to show her knowledge of the
slang of the amphetamine trade. She also transported amphetamine

-- 11 of 13 --

12
manufactured by Jack Baxter on at least two previous occasions, not
including the incident of December 13, 1991, when she was stopped
en route to make a delivery to Warner. A reasonable jury could
have found that Nunley conspired to distribute amphetamine.
B.
Nunley challenges, on two grounds, the district court's
setting of her base offense level. First, she contends that the
court erred in adopting the presentence investigation report
("PSR"), which recommended that her liability be based upon the
entire quantity of amphetamine involved in the conspiracy. Second,
she contends that the district court erred in holding her liable
for the entire amount of amphetamine involved in the conspiracy.
As to her first contention, the district court expressly
adopted the factual findings from the PSR, as it was free to do
without further explanation in the absence of contrary evidence or
any objection from Nunley. United States v. Mir, 919 F.2d 940, 943
(5th Cir. 1990); United States v. Mueller, 902 F.2d 336, 346 (5th
Cir. 1990). As to her second contention, it is apparent from the
taped conversations and from her previous deliveries of amphetamine
that Nunley knew Jack Baxter was involved in the production of the
drug. The district court did not abuse its discretion, therefore,
in concluding that the entire quantity involved in the conspiracy
was foreseeable to Nunley and that her sentence therefore could be
based upon the entire amount involved in the conspiracy.

-- 12 of 13 --

13
C.
We review the district court's refusal to grant Nunley a
downward adjustment under a clearly erroneous standard. United
States v. Vaquero, 997 F.2d 78, 88 (5th Cir. 1993); United States
v. Bethley, 973 F.2d 396, 401 (5th Cir. 1992), cert. denied, 113 S.
Ct. 1323 (1993). Nunley challenges the district court's refusal to
reduce her base sentence level for being a "minor participant" in
the conspiracy. This court in United States v. Bethley, 973 F.2d
396, 401 (5th Cir. 1992), cert. denied, 113 S. Ct. 1323 (1993),
indicated that a "`mule' or transporter of drugs may not be
entitled to minor or minimal status" under the Sentencing Guide-
lines.
Nunley's role was not limited to a single delivery of drugs.
The district court, accordingly, did not err in refusing to find
her a "minor participant" in the conspiracy and adjust her sentence
downward accordingly.
V.
For the foregoing reasons, we AFFIRM the convictions of Jack
Baxter and Nunley. We REVERSE the conviction of Wanda Baxter and
REMAND her case to the district court with instruction to enter a
judgment of acquittal.
AFFIRMED IN PART and REVERSED and REMANDED in part.

-- 13 of 13 --