United States of America v. BENJAMIN Y. OWUSU (98-3356), LARRY LATHAM (98-3847), and ANTHONY LATHAM (98-3850)

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0003P (6th Cir.)
File Name: 00a0003p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
BENJAMIN Y. OWUSU
(98-3356), LARRY LATHAM
(98-3847), and ANTHONY
LATHAM (98-3850),
Defendants-Appellants.
;>

1
Nos. 98-3356/
3847/3850
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 97-00030—James L. Graham, District Judge.
Argued and Submitted: October 26, 1999
Decided and Filed: January 5, 2000
Before: JONES, MOORE, and GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Stephen E. Maher, Columbus, Ohio, Keith E.
Golden, GOLDEN & MEIZLISH, Columbus, Ohio, for
Appellants. Gary L. Spartis, OFFICE OF THE U.S.

-- 1 of 16 --

2 United States v.
Owusu, et al.
Nos. 98-3356/3847/3850
1To avoid any confusion between Anthony and Larry Latham, we
depart from our general practice and refer to each by his first name.
ATTORNEY, Columbus, Ohio, for Appellee. ON BRIEF:
Paul R. Hensley, FEDERAL PUBLIC DEFENDER’S
OFFICE, Columbus, Ohio, for Appellant in 98-3356. Terry
K. Sherman, Columbus, Ohio, for Appellant in 98-3847.
Keith E. Golden, GOLDEN & MEIZLISH, Columbus, Ohio,
for Appellant in 98-3850. Gary L. Spartis, David J. Bosley,
OFFICE OF THE U.S. ATTORNEY, Columbus, Ohio, for
Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. This appeal
involves three individuals who were part of a conspiracy to
distribute drugs in Columbus, Ohio. Larry Latham and
Benjamin Owusu were the primary participants in the
conspiracy, and Anthony Latham was involved in the chain of
distribution. Owusu pleaded guilty to conspiracy to distribute
and cooperated with the government. After a jury trial,
Anthony and Larry Latham were convicted of several federal
drug violations.1 Anthony appeals: (1) the district court’s
refusal to grant him a mitigating role adjustment to his
offense level under U.S. S ENTENCING GUIDELINES M ANUAL
(U.S.S.G.) § 3B1.2; (2) the district court’s calculation of the
amount of drugs attributable to him; (3) the district court’s
application of an enhanced sentencing penalty for the
distribution of “crack” cocaine pursuant to U.S.S.G. § 2D1.1;
and (4) the district court’s denial of his motion for a new trial
based on the government’s alleged violations of 18 U.S.C.
§ 201(c)(2). We AFFIRM each of these district court
decisions.
Larry’s counsel raises the following issues on appeal: (1)
the district court’s denial of his motion for judgment of

-- 2 of 16 --

Nos. 98-3356/3847/3850 United States v.
Owusu, et al.
3
acquittal of Counts 1, 2, 3, and 11 of the indictment; (2) the
district court’s calculation of the quantity of drugs attributable
to him; (3) the district court’s enhancement of his sentence for
his leadership role in the conspiracy under U.S.S.G.
§ 3B1.1(a); and (4) the district court’s enhancement of his
sentence for possession of a firearm pursuant to U.S.S.G.
§ 2D1.1(b)(1). In addition, Larry makes several pro se
arguments. We REVERSE the district court’s denial of
Larry’s motion for judgment of acquittal of Count 2 and
AFFIRM the rest of the district court’s decisions.
Finally, Owusu, who has AIDS, appeals the district court’s
refusal to grant a downward departure in his sentence for “an
extraordinary physical impairment” under U.S.S.G. § 5H1.4.
We DISMISS the appeal of this determination because the
district court was aware of its authority to grant such a
departure and thus its decision is nonreviewable.
I. FACTS AND PROCEDURE
In 1988, Owusu and Larry decided to pool their money
together to purchase cocaine from a supplier Owusu knew in
New York City. They would travel to New York to buy the
drugs, split the drugs evenly, and then independently
distribute them in Columbus, Ohio. They were both arrested
on September 5, 1988, by a New Jersey state trooper who
discovered two kilograms of cocaine and two guns in the car
in which they were traveling. Owusu and Larry were
convicted of drug and weapons charges in New Jersey state
court, sentenced to five years of imprisonment, and placed on
bond pending the appeal of their convictions. They then left
the state of New Jersey without ever serving their sentences;
New Jersey has outstanding warrants for their arrest. Owusu
and Larry were able to begin purchasing from Owusu’s
connection and distributing again in 1989, when Larry
received a disability check for approximately $5,000. The
amounts of cocaine they bought grew larger and larger over
time. This arrangement continued until 1992 or 1993, when
Larry and Owusu had a falling out. Larry then developed his

-- 3 of 16 --

4 United States v.
Owusu, et al.
Nos. 98-3356/3847/3850
own connection for cocaine but still continued to receive
some cocaine through Owusu.
Anthony also was involved in the conspiracy. He received
powder and crack cocaine from his brother Larry and then
distributed it to street-level dealers. Anthony Peoples was
Larry’s right-hand man in distributing drugs. Velma
Broomfield was Owusu’s girlfriend. She sometimes acted as
a courier to transport the drugs from New York to Ohio, and
also helped test, store, and distribute the drugs. Sonyini
McGraw and Larry Walton were street-level distributors who
received their cocaine from Larry and Anthony Latham.
Owusu, Peoples, Broomfield, McGraw, and Walton
cooperated with the government and testified against Larry
and Anthony at trial. A jury convicted both of them of Count
1, conspiracy to distribute and to possess with the intent to
distribute over five kilograms of cocaine, over 50 grams of
crack cocaine, and heroin in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(ii) & (iii), and 21 U.S.C. § 846.
The jury also found Anthony guilty of Counts 4, 5, 7, 8, and
9, charging him with distribution of and possession with
intent to distribute crack cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B)(iii). The jury concluded that
Larry also was guilty of Counts 2, 3, and 11, charging him
with distribution of and possession with intent to distribute
heroin and crack cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(iii). The district court sentenced
Anthony to 168 months of imprisonment followed by five
years of supervised release. It sentenced Larry to life
imprisonment on Counts 1 and 11 and to 240 months of
imprisonment on Counts 2 and 3, to run concurrently with his
life sentence.
Owusu pleaded guilty to Count 1 of the indictment,
conspiracy to distribute and to possess with the intent to
distribute over five kilograms of cocaine, over 50 grams of
crack cocaine, and heroin in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(ii) & (iii), and 21 U.S.C. § 846.
Nos. 98-3356/3847/3850 United States v.
Owusu, et al.
29
The district court’s questions and analysis were based on
this court’s analysis and holding in Thomas and show that it
knew it had the authority to grant Owusu a downward
departure under U.S.S.G. § 5H1.4. The district court also was
aware of Owusu’s medical condition, but decided in its
discretion that the condition was not sufficiently severe to
warrant a downward departure for an extraordinary physical
impairment. Therefore, the district court’s determination is
not reviewable. See United States v. Coleman, 188 F.3d 354,
357 (6th Cir. 1999) (en banc).
III. CONCLUSION
For the reasons stated above, we AFFIRM the district
court’s decisions with respect to Anthony Latham. We
REVERSE the district court’s denial of Larry Latham’s
motion for judgment of acquittal of Count 2 and REMAND
to the district court solely for the purpose of correction of the
judgment to eliminate conviction of Count 2. We AFFIRM
the rest of the district court’s decisions with respect to Larry
Latham. Finally, we DISMISS Owusu’s appeal of the district
court’s refusal to grant a downward departure in calculating
his sentence.

-- 4 of 16 --

28 United States v.
Owusu, et al.
Nos. 98-3356/3847/3850
49 F.3d at 260-61 (quoting United States v. DePew, 751 F.
Supp. 1195, 1199 (E.D. Va. 1990), aff’d on other grounds,
932 F.2d 324 (4th Cir.), cert. denied, 502 U.S. 873 (1991)).
In Thomas, the court concluded that a defendant was not
entitled to a downward departure for an extraordinary
physical impairment because his HIV had not progressed into
advanced AIDS. See 49 F.3d at 261. In this case, the district
court judge asked Owusu and his attorney to describe
Owusu’s current physical limitations. Owusu complained of
a skin condition, lack of energy, and confusion, while his
attorney focused on his reduced life expectancy. The district
court then decided that Owusu did not qualify for a downward
departure based on the following reasoning:
I’m not sure that Mr. Owusu’s condition has progressed
to the point where a downward departure would be
legally justifiable. He does suffer from AIDS, but he is
able to function in the normal prison population. He
appears to be in fairly good health as he stands before the
Court today. But even if his condition should constitute
an extraordinary physical impairment, the Court does not
feel that a departure downward would be appropriate in
this case, considering the seriousness of his offense and
also considering his current physical condition, which
while he may have a significantly reduced life
expectancy, is not one of debilitation or extreme
disability at this point. He is not in the terminal stages of
his disease as he stands before the Court today.
J.A. at 79-80.
In the district court’s written imposition of Owusu’s
sentence, it again explained that Owusu’s motion for this
downward departure was denied because he had not yet
reached a terminal stage of the disease and “there is no
evidence that he is currently experiencing any significant
health problems.” J.A. at 46.
Nos. 98-3356/3847/3850 United States v.
Owusu, et al.
5
2We have frequently stated that we review denials of mitigating role
adjustments for clear error. See, e.g., United States v. Miller, 56 F.3d
719, 720 (6th Cir. 1995); United States v. DeFranco, 30 F.3d 664, 669
(6th Cir.), cert. denied, 513 U.S. 942 (1994); United States v. White, 985
F.2d 271, 274 (6th Cir. 1993). Recently, however, in United States v.
Gort-DiDonato, 109 F.3d 318, 320 (6th Cir. 1997), we announced a two-
part standard of review in the context of aggravating role adjustments.
Under this standard, a district court’s factual findings are reviewed for
clear error, while a district court’s legal conclusions regarding the
application of U.S.S.G. § 3B1.1 to the facts are reviewed de novo. The
Gort-DiDonato standard seems equally appropriate for mitigating role
adjustments as it is for aggravating role adjustments. Since we would
affirm the district court under either standard, we need not resolve this
matter today.
He was sentenced to 144 months of imprisonment, followed
by five years of supervised release.
II. ANALYSIS
A. Anthony Latham
Anthony’s appeal involves four different issues: (1) the
district court’s refusal to grant him a mitigating role
adjustment to his offense level; (2) the district court’s
calculation of the quantity of drugs attributable to him; (3) the
district court’s application of an enhanced sentencing penalty
for the distribution of “crack” cocaine; and (4) the district
court’s denial of his motion for a new trial based on the
government’s promises of more lenient sentences in exchange
for witnesses’ testimony in alleged violation of 18 U.S.C.
§ 201(c)(2).
1. Mitigating Role Adjustment
We review a district court’s denial of a mitigating role
adjustment to a defendant’s offense level under the
Sentencing Guidelines for clear error. See United States v.
Latouf, 132 F.3d 320, 332 (6th Cir. 1997), cert. denied, 118
S. Ct. 1542 (1998).2 Under U.S.S.G. § 3B1.2, a defendant’s
offense level may be decreased by two levels if he was a

-- 5 of 16 --

6 United States v.
Owusu, et al.
Nos. 98-3356/3847/3850
“minor participant in any criminal activity.” To qualify for
this reduction, a defendant must be “‘less culpable than most
other participants’” and “‘substantially less culpable than the
average participant.’” United States v. Lloyd, 10 F.3d 1197,
1220 (6th Cir. 1993) (quoting U.S.S.G. § 3B1.2 commentary,
applic. note 3 & background), cert. denied, 511 U.S. 1043
(1994). This determination is “‘heavily dependent upon the
facts,’” and the defendant must prove a mitigating role by a
preponderance of the evidence. Id.
Anthony argues that he is substantially less culpable than
the other participants in the conspiracy because he was only
an end user of drugs who occasionally supplemented his
income by selling drugs to others and was no more culpable
than the unindicted street-level dealers involved in the
conspiracy. The sentencing court agreed that Anthony was
less culpable than the primary coconspirators, Larry and
Owusu. Comparing his activities to all of the people who
participated in the conspiracy’s illegal activity, however, the
court concluded that Anthony was more culpable than the
street-level dealers because he was at a higher level in the
chain of distribution. Sonyini McGraw testified that Larry
supplied drugs to Anthony, who then distributed them to
McGraw to sell at a crack house in 1988 and 1989. McGraw
also testified that after he was released from jail in 1993 and
wanted to begin selling drugs on the street again, Anthony
“fronted” him for several months by supplying him with
approximately an ounce of crack per week, which Anthony
had obtained from Larry.
Anthony argues that he was in jail in 1988 and 1989 and
thus could not have been selling drugs to McGraw at that
time. Anthony testified before the sentencing court, however,
that he was out of jail for over two months in 1988 and nine
months in 1989. Anthony also argues that McGraw’s entire
testimony is suspect because the sentencing court concluded
that part of McGraw’s testimony -- where he saw Larry give
Anthony approximately 500 grams of cocaine in a pizza box
in the pizza store located next door to Anthony’s barbershop
Nos. 98-3356/3847/3850 United States v.
Owusu, et al.
27
C. Benjamin Owusu
Owusu appeals the district court’s denial of his motion for
a downward departure of his sentence for “an extraordinary
physical impairment” under U.S.S.G. § 5H1.4. A defendant
may appeal his sentence if it was “imposed in violation of
law” or “imposed as a result of an incorrect application of the
sentencing guidelines.” 18 U.S.C. § 3742(a)(1)-(2).
Ordinarily, however, a court’s refusal to exercise its discretion
and grant a downward departure is not reviewable. See
United States v. Landers, 39 F.3d 643, 649 (6th Cir. 1994).
We may review a denial of a downward departure only if the
district court incorrectly believed it lacked the authority to
grant such a departure as a matter of law. See United States
v. Coleman, 188 F.3d 354, 357 (6th Cir. 1999) (en banc). A
district court judge has no duty “to state affirmatively that he
knows he possesses the power to make a downward
departure, but declines to do so.” United States v. Byrd, 53
F.3d 144, 145 (6th Cir. 1995). Moreover, “an appellate court
should be reluctant to ‘treat as ambiguous’ a ruling which
does not affirmatively state that the judge knew he could
depart downward but failed to do so.” Id. (quoting United
States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert.
denied, 510 U.S. 937 (1993)). We should therefore assume
that a district court is exercising its proper discretion when it
concludes that a downward departure is unwarranted. See id.
Based on the record, the district court understood that it had
the authority to grant Owusu a downward departure under
U.S.S.G. § 5H1.4. Owusu filed a sentencing memorandum
with the district court requesting a departure under this
provision, citing to the most relevant and controlling Sixth
Circuit case, United States v. Thomas, 49 F.3d 253 (6th Cir.
1995), and attaching a letter from a physician describing
Owusu’s medical condition. During the sentencing hearing,
the district court judge discussed the Thomas decision and its
adoption of a Virginia district court’s analysis and conclusion
that AIDS alone is not an extraordinary physical impairment
under U.S.S.G. § 5H1.4. J.A. at 78-79 (discussing Thomas,

-- 6 of 16 --

26 United States v.
Owusu, et al.
Nos. 98-3356/3847/3850
guns were found in the car along with the cocaine, and a
rational fact finder could conclude that Larry was aware of
their presence. Therefore, Owusu’s possession would be
reasonably foreseeable to Larry and could be imputed to him.
Under these circumstances, the district court did not clearly
err in adding two points to Larry’s base offense level for
possession of a firearm under U.S.S.G. § 2D1.1(b)(1).
5. Pro Se Arguments
Finally, Larry filed a supplemental pro se brief claiming: (1)
his due process right to a fair trial was violated by the district
court’s treatment of his counsel and its denial of his motion
for mistrial; (2) the prosecution improperly vouched for the
credibility of its witnesses in its closing statement; (3) the
district court’s jury instructions regarding conspiracy were
erroneous; and (4) the government did not prove that Larry
distributed “crack” cocaine in Count 11 under U.S.S.G.
§ 2D1.1. We have carefully reviewed the record and
conclude that Larry’s due process right to a fair trial was not
violated because he did not identify any district court errors
that prejudiced his substantial rights. In addition, we find that
the government did not commit reversible prosecutorial
misconduct because any comments which could be construed
as improper vouching for a witness were not flagrant, the
government provided significant evidence of Larry’s guilt,
and Larry failed to object to the comments at trial. We also
hold that the district court properly gave a multiple-
conspiracy jury instruction because a jury could have decided
that more than one conspiracy existed since Larry worked
with Owusu and also developed his own drug connection in
1992 and 1993 after he had a falling out with Owusu. Finally,
Larry’s argument that the government did not prove that he
was involved in the distribution of “crack” in accordance with
the Sentencing Guidelines must fail because the district court
did not hold Larry accountable for any crack cocaine in
calculating his sentence.
Nos. 98-3356/3847/3850 United States v.
Owusu, et al.
7
in 1993 -- was not a sufficient basis to attribute drugs to
Anthony. The district court reasoned that McGraw’s
testimony was unclear as to the exact amount of drugs
involved and whether the transaction involved powder or
crack cocaine. The court did not, however, conclude that
McGraw was lying about the events. Rather, the district court
determined that McGraw was a “very significant witness.”
J.A. at 663. It found his testimony credible, noting that
McGraw identified various people that he purchased
drugs from. He didn’t lay all of the blame on Tony
Latham by any means. I can’t see any reason why he
would have made up the part about Tony. It’s consistent
with the testimony of other witnesses about Tony’s
involvement in distributing drugs for Larry. It’s
consistent with what we know about the facts that Tony
Latham did distribute drugs from the barbershop or from
the pizza shop next door.
J.A. at 708-09. McGraw’s testimony is consistent with other
testimony describing Anthony’s role in the conspiracy. Larry
Walton testified that from 1993 to 1995 he would buy a
quarter or half an ounce of crack two or three times a week
from Anthony, which Walton then would sell on the street.
In addition, Anthony Peoples testified that Larry gave him
powder and crack cocaine to give to Anthony Latham on
several different occasions.
Although Anthony was less culpable than the primary
coconspirators, Larry and Owusu, he was not less culpable
than the other participants or substantially less culpable than
the average participant in the conspiracy. The evidence
shows that he was more than an end user and occasional
street-level seller of drugs. Anthony obtained powder and
crack cocaine from his brother Larry and then actively sold it
to McGraw and Walton, street-level suppliers, on a regular
basis. Therefore, the sentencing court did not err in refusing
to apply a mitigating role adjustment to his offense level
under U.S.S.G. § 3B1.2.

-- 7 of 16 --

8 United States v.
Owusu, et al.
Nos. 98-3356/3847/3850
2. Quantity of Drugs Involved
We review for clear error a sentencing court’s calculation
of the quantity of drugs for which a defendant is accountable.
See United States v. Berry, 90 F.3d 148, 152 (6th Cir.), cert.
denied, 519 U.S. 999 (1996). A sentencing court may hold a
defendant accountable for a specific amount of drugs only if
the defendant is more likely than not responsible for a
quantity greater than or equal to that amount. See United
States v. Walton, 908 F.2d 1289, 1302 (6th Cir.), cert. denied,
498 U.S. 906 (1990). If the exact amount of drugs involved
is uncertain, the court may make an estimate supported by
competent evidence in the record. See United States v. Ward,
68 F.3d 146, 149 (6th Cir. 1995), cert. denied, 516 U.S. 1151
(1996). The evidence “‘must have a minimal level of
reliability beyond mere allegation,’” and the court should err
on the side of caution in making its estimate. See United
States v. Baro, 15 F.3d 563, 569 (6th Cir.) (quoting United
States v. West, 948 F.2d 1042, 1045 (6th Cir. 1991)), cert.
denied, 513 U.S. 912 (1994). Testimonial evidence from a
coconspirator may be sufficient to determine the amount of
drugs for which another coconspirator should be held
accountable. See United States v. Pruitt, 156 F.3d 638, 647
(6th Cir. 1998), cert. denied, 119 S. Ct. 846 (1999). We defer
to a district court’s credibility determinations unless they have
no foundation. See id.
The district court held Anthony accountable for 195 grams
of crack cocaine, resulting in a base offense level of 34.
Anthony argues that the district court should not have
included 56.7 grams of crack cocaine in that total amount
because it was based on unreliable testimony from McGraw.
McGraw testified that Anthony sold him an “eighth of a key,
2 ounces” of crack cocaine to sell at a crack house several
different times in 1988 and 1989. J.A. at 326. McGraw also
testified that Anthony “fronted” him by supplying him with an
ounce of crack “every week or so” for two to three months in
1993. J.A. at 335-36. Anthony makes the same arguments
here as in the previous section challenging the credibility of
Nos. 98-3356/3847/3850 United States v.
Owusu, et al.
25
weapon in a gym bag in the trunk. Larry claims this
enhancement was improper because Owusu was in exclusive
possession and control of the .32 caliber gun found under his
seat. The gun was registered to Owusu’s sister, and Larry
asserts that Owusu had secreted himself on the floor of the
back seat to have access to the gun while Larry was sitting
passively in the front passenger seat during the stop. The
New Jersey state trooper testified, however, that he saw the
front seat passenger, Larry, make a furtive movement as the
car was pulling over, in which he appeared to be leaning back
and then forward and then back as if he was reaching into the
back seat and “either hiding something or retrieving
something.” J.A. at 110. This evidence strongly suggests
Larry placed or helped place the gun beneath his seat and thus
had control and constructive possession over the gun.
In addition, in United States v. Duncan, 918 F.2d 647, 651
(6th Cir. 1990), cert. denied, 500 U.S. 933 (1991), the court
reviewed the case law in this and other circuits and
concluded, “The cases are all consistent in that they recognize
that enhancement is appropriate if a weapon is found . . . in
the automobile that facilitated the drug transaction.” In that
case, possession was found when a gun was located on the
front passenger seat of the defendant’s car during drug sales
carried out in and about the car. When Larry and Owusu were
stopped by the state troopers, they were returning to Ohio
from New York where they had purchased two kilograms of
cocaine they were planning to sell in Columbus as part of
their conspiracy to distribute drugs. Because the guns were
found in the car facilitating their conspiracy, the district court
could have found Larry had constructive possession of the
guns during this offense. Moreover, even if the weapons were
in Owusu’s exclusive possession, this possession occurred in
connection with the conspiracy between Larry and Owusu to
distribute drugs. We have held that where a defendant knew
his coconspirator was trafficking drugs with a gun in the car,
possession was reasonably foreseeable and could be imputed
to him. See United States v. Perkins, 994 F.2d 1184, 1192
(6th Cir.), cert. denied, 510 U.S. 903 (1993). Here, the two

-- 8 of 16 --

24 United States v.
Owusu, et al.
Nos. 98-3356/3847/3850
than five individuals, the district court did not err in
concluding that Larry’s offense level should be increased by
four levels under U.S.S.G. § 3B1.1(a).
4. Possession of a Firearm
We review a district court’s factual finding of possession of
a firearm for enhancement of a defendant’s sentence under
U.S.S.G. § 2D1.1(b)(1) for clear error. See United States v.
Elder, 90 F.3d 1110, 1133 (6th Cir.), cert. denied, 519 U.S.
1016 (1996). The Sentencing Guidelines provide that the
base offense level of a defendant convicted of a drug offense
should be increased by two levels “[i]f a dangerous weapon
(including a firearm) was possessed.” U.S.S.G.
§ 2D1.1(b)(1). This enhancement “should be applied if the
weapon was present, unless it is clearly improbable that the
weapon was connected with the offense.” U.S.S.G. § 2D1.1
commentary, applic. note 3. The government must prove by
a preponderance of the evidence that “(1) the defendant
actually or constructively ‘possessed’ the weapon, and (2)
such possession was during the commission of the offense.”
United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.), cert.
denied, 519 U.S. 858 (1996). Constructive possession may be
established if the defendant has ownership, dominion, or
control over the weapon. See id. If the offense committed is
part of a conspiracy, however, the government does not have
to prove that the defendant actually possessed the weapon, but
instead may establish that a member of the conspiracy
possessed the firearm and that the member’s possession was
reasonably foreseeable by other members in the conspiracy.
See United States v. Sanchez, 928 F.2d 1450, 1459 (6th Cir.
1991).
The district court enhanced Larry’s sentence under this
provision because Larry, Owusu, and Kevin Ardister were
arrested on September 5, 1988, in connection with a traffic
stop by a New Jersey state trooper who found a .32 caliber
semi-automatic pistol under the front passenger seat of their
car and two kilograms of cocaine and another semi-automatic
Nos. 98-3356/3847/3850 United States v.
Owusu, et al.
9
McGraw’s testimony. As discussed in Part II.A.1 supra, these
arguments must be rejected. Moreover, the district court’s
determination that McGraw’s testimony was credible is not
without foundation because McGraw had no reason to single
Anthony out for these transactions and because his testimony
regarding Anthony’s activities was consistent with other
testimony in the record. Based on this specific evidence, the
sentencing court properly erred on the side of caution and
estimated that Anthony should be held accountable for only
two ounces of crack cocaine, or 56.7 grams. Therefore, it was
not clear error to include the 56.7 grams of crack cocaine in
his total attributed amount of 195 grams.
3. Determination that Drugs Were Crack Cocaine
Anthony also argues that the district court incorrectly
determined that the drugs attributable to him were “crack”
when it applied the enhanced penalty associated with this
form of cocaine base under the Sentencing Guidelines. At
sentencing, the government has the burden of proving by a
preponderance of the evidence that the drugs involved were
the “crack” form of cocaine base, as defined under U.S.S.G.
§ 2D1.1. See United States v. Jones, 159 F.3d 969, 981-82
(6th Cir. 1998). Whether a drug is crack or another form of
cocaine base is a question of fact for the sentencing court to
determine, which we review for clear error. See id. at 982.
Although neither party has addressed this issue, it appears that
Anthony did not specifically contest the type of drugs
attributed to him before the district court. Therefore, this
argument is reviewed for plain error. See FED . R. C RIM. P. 52
(b). The plain error analysis has four steps:
First, we are to consider whether an error occurred in the
district court. Absent any error, our inquiry is at an end.
However, if an error occurred, we then consider if the
error was plain. If it is, then we proceed to inquire
whether the plain error affects substantial rights. Finally,
even if all three factors exist, we must then consider
whether to exercise our discretionary power under Rule

-- 9 of 16 --

10 United States v.
Owusu, et al.
Nos. 98-3356/3847/3850
52(b), or in other words, we must decide whether the
plain error affecting substantial rights seriously affected
the fairness, integrity or public reputation of judicial
proceedings.
United States v. Thomas, 11 F.3d 620, 630 (6th Cir. 1993),
cert. denied, 511 U.S. 1043 (1994).
According to § 2D1.1, “‘Cocaine base,’ for the purposes of
this guideline, means ‘crack.’ ‘Crack’ is the street name for
a form of cocaine base, usually prepared by processing
cocaine hydrochloride and sodium bicarbonate, and usually
appearing in a lumpy, rocklike form.” U.S.S.G. § 2D1.1(c)
note D. Anthony argues that because the government did not
prove that the drugs attributable to him were actually
processed with sodium bicarbonate, they should not be
considered “crack” under this provision. We have expressly
held, however, that the use of sodium bicarbonate is not a
necessary prerequisite for a district court’s factual
determination that a particular drug is “crack.” See Jones,
159 F.3d at 982-83. This provision “does not attempt to
define crack as being manufactured in any particular way.
The definition, through the use of the word ‘usually,’ serves
merely to illustrate a common method of conversion.” Id. at
982. Thus, the government was not required to prove that the
crack cocaine for which Anthony was held accountable was
manufactured with sodium bicarbonate.
A preponderance of the evidence supports the district
court’s finding that the drugs attributed to Anthony were the
crack form of cocaine base. Part of the attributed drugs came
from purchases an undercover police agent and informant
made from Anthony on several different occasions in June,
July, and October 1994 and from seizures made in connection
with Anthony’s arrest in October 1994. A police analyst
testified that she performed laboratory tests on the drugs
purchased and seized from Anthony and concluded that they
were cocaine base. It is important to note that this testimony
did not establish that these drugs were in fact the crack form
Nos. 98-3356/3847/3850 United States v.
Owusu, et al.
23
began receiving anywhere from ten to twenty-five kilograms
of cocaine per month from this new source.
This evidence shows that Larry and Owusu were both
leaders of this drug conspiracy. Although Owusu initially had
the drug connection, they shared decisionmaking authority.
In 1988, they jointly decided to pool their money together to
purchase the cocaine in New York. Larry supplied the entire
amount of money in 1989 to start up the distribution again
after they were arrested in New Jersey in 1988. They jointly
arranged the trips to New York to obtain the drugs, and Larry
had his car customized to have secret compartments in which
the drugs could be hidden for these trips. Once Larry and
Owusu obtained the cocaine, they would split it evenly and
each would distribute his half independently. Larry directed
Peoples and McGraw in distributing his share of the cocaine.
In a similar factual situation, we upheld a district court’s
finding that a defendant was a leader or organizer where he
had an equal role with two other individuals in providing
drugs to several dealers and a gang, where the defendant’s
activities included determining when to order the drugs,
contacting a supplier in New York, negotiating a price, and
arranging couriers to transport the drugs from New York back
to Ohio. See United States v. Bingham, 81 F.3d 617, 629-30
(6th Cir.), cert. denied, 519 U.S. 900 (1996). Like the
coconspirators in Bingham, Larry was an organizer or leader
of the conspiracy.
Larry argues that because Peoples was the only individual
he could have arguably led or directed, he was not leading
five individuals. It is not necessary, however, for a defendant
to have led or directed five individuals to receive this
sentencing enhancement. It may apply “[i]f the defendant
organized or led at least one participant, and if the activity
involved five or more people or was otherwise extensive.”
Ward, 68 F.3d at 151. In this case, the drug conspiracy
involved more than five participants, including Owusu, Larry,
Anthony, McGraw, Peoples, and Broomfield. Because Larry
was an organizer or leader of a conspiracy involving more

-- 10 of 16 --

22 United States v.
Owusu, et al.
Nos. 98-3356/3847/3850
seized in New Jersey in September 1988, Larry and Owusu
were out of money and drugs and had to start all over again.
In 1989, Larry received a disability check for approximately
$5,000, which he gave to Owusu, who traveled to New York
to purchase a quarter of a kilogram of cocaine. Starting in
1989, they would use Velma Broomfield as a courier. Up
until 1992, they would pool their money and split the cocaine
from New York, never disclosing to each other to whom they
were distributing their share. As discussed in Part II.B.2
supra, Larry and Owusu purchased and distributed a
minimum of 150 kilograms of cocaine.
The government presented evidence that Larry had
individuals distributing cocaine for him. McGraw testified
that Larry supplied him with crack cocaine to sell on the street
and then arranged for him to sell the drugs out of a crack
house in which Larry’s mother had once lived. Larry also
supplied crack to the other sellers working out of the crack
house every day or every other day. McGraw would receive
drugs from Larry through Anthony and through Peoples. He
testified that for approximately five years, Larry and Peoples
were together all of the time and that Peoples was Larry’s
right-hand man. During this time period, when McGraw
wanted to purchase drugs, he would talk to Larry and then
would obtain the drugs from Peoples.
Peoples also testified that he was Larry’s right-hand man.
He and Larry would cook cocaine into crack for distribution.
Peoples would do the actual distributing, based on who Larry
told him to go and see. They sold to low-level dealers in their
public housing project and in other places. On several
different occasions, Larry asked Peoples to deliver drugs to
Anthony. Peoples also testified that to assist in the
conspiracy’s efforts, Larry built hidden compartments into his
car to hide the drugs from New York, bought a vacuum-seal
machine to seal the drugs they packaged, and bought a
money-counting machine. He also stated that in 1993, Larry
developed another connection, in addition to Owusu, and
Nos. 98-3356/3847/3850 United States v.
Owusu, et al.
11
3The drugs from one purchase, executed on July 14, 1994, were
accidentally destroyed. The police agent testified, however, that he had
examined them and concluded that they were in fact crack cocaine.
of cocaine base as required by Jones. The government,
however, provided additional evidence that the drugs were
crack. The police agents who had purchased and seized the
drugs from Anthony testified that they had performed field
tests on the drugs which revealed that they were crack
cocaine. In addition, the drugs were admitted into evidence
at trial and a police agent described them as having an
opaque, rock-like appearance, a characteristic of crack
cocaine.3 The government may rely on police laboratory
results and testimony from field agents to establish that seized
cocaine is crack cocaine. See Jones, 159 F.3d at 982
(affirming the district court’s determination that the drugs
involved were crack cocaine based on testimony from a
forensic scientist, a police field agent, and taped
conversations referring to crack). In addition, evidence that
the cocaine is in rock form indicates that the substance is in
fact crack cocaine. See Wright v. United States, 182 F.3d 458,
468 (6th Cir. 1999) (affirming district court’s conclusion that
drugs were crack based in part on testimony that the seized
drugs were a “‘chunky hard substance,’” a characteristic of
crack cocaine). Therefore, the district court did not err in
concluding the drugs purchased and seized from Anthony by
the police were crack cocaine.
Anthony alleges that the rest of the crack cocaine, which is
attributed to him based on transactions described in
McGraw’s testimony, cannot conclusively be determined to
be crack. The government may establish the identity of a drug
by circumstantial evidence. See United States v. Wright, 16
F.3d 1429, 1439 (6th Cir.), cert. denied, 512 U.S. 1243
(1994). Expert testimony is not necessary, and a lay witness
who has personal experience with crack cocaine can establish
that a substance is crack. See id. at 1439-40 (affirming the
district court’s finding that the substance involved was crack

-- 11 of 16 --

12 United States v.
Owusu, et al.
Nos. 98-3356/3847/3850
cocaine based on testimony from several government
witnesses who had seen the defendant “cutting” crack or had
seen the substance and knew it was crack based on their
personal experience). In this case, McGraw specifically
testified that Anthony sold him the crack form of cocaine base
in 1988 and 1989. He also testified that Anthony supplied
him with crack cocaine for several months in 1993. McGraw
appears to have based his conclusions that these transactions
involved crack on his personal experience. He had observed
Larry cook crack cocaine on several different occasions in
1989, 1990, and 1994, and therefore could differentiate crack
from other forms of cocaine base. Because McGraw had
sufficient experience to make this determination, the district
court did not err in relying on this testimony to conclude that
the drugs Anthony sold McGraw were crack under U.S.S.G.
§ 2D1.1.
4. 18 U.S.C. § 201(c)(2)
Finally, Anthony argues that the district court should have
granted him a new trial because the government allegedly
violated 18 U.S.C. § 201(c)(2). He relies on United States v.
Singleton, 144 F.3d 1343, 1350-51 (10th Cir. 1998), which
held that the government violates this provision when it
impermissibly promises witnesses something of value, such
as a more lenient sentence, in exchange for testimony. This
decision, however, was vacated and reversed by the Tenth
Circuit in an en banc decision. See United States v. Singleton,
165 F.3d 1297 (10th Cir.) (en banc), cert. denied, 119 S. Ct.
2371 (1999). Moreover, we expressly rejected this analysis
and holding in United States v. Ware, 161 F.3d 414, 419-24
(6th Cir. 1998), cert. denied, 119 S. Ct. 1348 (1999) (holding
that this provision does not apply to the government based on
a thorough examination of canons of statutory construction,
historical practice, the prosecutor’s established prerogatives,
and legislative history). Because 18 U.S.C. § 201(c)(2) does
not apply to the government, Anthony’s argument must be
rejected.
Nos. 98-3356/3847/3850 United States v.
Owusu, et al.
21
review. See United States v. Gort-DiDonato, 109 F.3d 318,
320 (6th Cir. 1997). Under the Sentencing Guidelines, a
defendant’s offense level may be increased by four levels if he
“was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise
extensive.” U.S.S.G. § 3B1.1(a). If the court concludes 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,” it may
increase his offense level by three levels. U.S.S.G.
§ 3B1.1(b). A court should consider the following factors in
making its determination:
the exercise of decision making authority, the nature of
participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree of
control and authority exercised over others. There can,
of course, be more than one person who qualifies as a
leader or organizer of a criminal association or
conspiracy.
U.S.S.G. § 3B1.1 commentary, applic. note 4. The
government must prove this finding by a preponderance of the
evidence. See United States v. Ward, 68 F.3d 146, 151 (6th
Cir. 1995), cert. denied, 516 U.S. 1151 (1996).
The district court concluded that Larry was the organizer or
leader of this conspiracy, which involved over five people and
was extensive. The conspiracy began in 1988 when Owusu
told Larry that he had a cocaine supplier in New York and
they agreed to pool together $150 to purchase cocaine. In the
beginning, they traveled together to New York to obtain the
drugs and then each took half to sell on their own once they
were back in Ohio. With their profits, they continued to pool
their money together to purchase increasing amounts of
cocaine. After they were arrested and their cocaine was

-- 12 of 16 --

20 United States v.
Owusu, et al.
Nos. 98-3356/3847/3850
two kilograms of cocaine. In 1989, they began purchasing in
New York again starting with a quarter of a kilogram of
cocaine. They worked up to five to seven kilograms of
cocaine within approximately six months. For approximately
one year they purchased five to seven kilograms in New York
twice a month. In 1991 and 1992, they were buying five to
ten kilograms of cocaine twice a month. Owusu also testified
that Larry would receive one to three kilograms of cocaine per
week in 1993 and 1994. Based on this testimony, 150
kilograms is a conservative estimate for the amount of
cocaine distributed through this conspiracy.
Larry argues that this testimony is not credible because it is
vague. Testimony from Peoples, McGraw, Velma
Broomfield, and Derrick Russell, however, provided similar
evidence of large amounts of cocaine attributable to Larry
through the conspiracy. Peoples, for instance, testified that in
1988 Larry and Owusu had worked up to purchasing five to
ten kilograms every couple of weeks and they were
purchasing ten to fifteen kilograms three to four times a
month in 1989 and 1990. This testimony also establishes
more than 150 kilograms of cocaine for which Larry could be
held accountable. Larry also argues that this testimony is
tainted because the witnesses expected to receive more lenient
sentences in exchange for their cooperation in violation of 18
U.S.C. § 201(c)(2). As already discussed in Parts II.A.4,
II.B.1.a, and II.B.1.d supra, this argument must be rejected.
Larry has not identified any other reason to find that the
sentencing court lacked foundation in concluding Owusu’s
testimony was credible. Therefore, the district court did not
clearly err in holding Larry accountable for 150 kilograms of
cocaine.
3. Leadership Role
We review a sentencing court’s factual findings regarding
a defendant’s role in a conspiracy for clear error. Whether
these facts warrant a sentence enhancement pursuant to
U.S.S.G. § 3B1.1(a) is a legal conclusion subject to de novo
Nos. 98-3356/3847/3850 United States v.
Owusu, et al.
13
4Larry’s attorney properly made a Rule 29 motion following the close
of all evidence with respect to Counts 1, 2, 3, and 11, which the district
court denied. This motion was not renewed within seven days of the jury
verdict as allowed under Rule 29. See F ED . R. C RIM . P. 29(c). Before
sentencing, Larry filed a motion for leave to file a motion for judgment of
acquittal based on the Tenth Circuit’s Singleton decision. The district
court denied the motion for leave because grounds existed upon which
Larry could have renewed his motion within the proper time frame.
Assuming arguendo that the court did grant leave, it still would have
dismissed a Rule 29 motion based on Singleton because it concluded that
the decision was contrary to existing Sixth Circuit law.
B. Larry Latham
Larry’s counsel raises the following issues on appeal: (1)
the district court’s denial of his motion for judgment of
acquittal of Counts 1, 2, 3, and 11 of the indictment; (2) the
district court’s calculation of the quantity of drugs attributable
to him; (3) the district court’s enhancement of his sentence for
his leadership role in the conspiracy under U.S.S.G.
§ 3B1.1(a); and (4) the district court’s enhancement of his
sentence for possession of a firearm pursuant to U.S.S.G.
§ 2D1.1(b)(1). Larry makes several additional arguments in
his supplemental pro se brief.
1. Motion for Judgment of Acquittal of Counts 1, 2, 3,
and 11
Larry claims the district court improperly denied his motion
for judgment of acquittal of Counts 1, 2, 3, and 11 pursuant to
Rule 29(c) of the Federal Rules of Criminal Procedure.4 We
review a district court’s denial of a motion for judgment of
acquittal on the basis of insufficient evidence by examining
“whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979); United States v. Gorman, 807 F.2d 1299, 1303 (6th
Cir. 1986), cert. denied, 484 U.S. 815 (1987). This review is
“quite limited.” United States v. Morrow, 977 F.2d 222, 230

-- 13 of 16 --

14 United States v.
Owusu, et al.
Nos. 98-3356/3847/3850
(6th Cir. 1992) (en banc), cert. denied, 508 U.S. 975 (1993).
This court does not weigh evidence, make credibility
determinations, or substitute its judgment for that of the jury.
See United States v. Hilliard, 11 F.3d 618, 620 (6th Cir.
1993), cert. denied, 510 U.S. 1130 (1994).
a. Count 1
Larry claims the government did not submit sufficient
evidence that he was involved in a conspiracy to possess with
intent to distribute over five kilograms of cocaine, 50 grams
of crack cocaine, and heroin under 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(ii) & (iii), and 21 U.S.C. § 846. The
government’s only evidence of conspiracy, he asserts, was
provided by individuals who had been charged with or
convicted of federal drug offenses and who testified in
expectation of a more lenient sentence. Larry argues that
because the government’s actions violate 18 U.S.C.
§ 201(c)(2), this testimony should be excluded under United
States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). As
discussed in Part II.A.4 supra in response to a similar
argument by Anthony, the Singleton decision was vacated and
reversed by the Tenth Circuit, and we have expressly rejected
its analysis and holding. See United States v. Ware, 161 F.3d
414, 419-24 (6th Cir. 1998), cert. denied, 119 S. Ct. 1348
(1999); see also United States v. Singleton, 165 F.3d 1297
(10th Cir.) (en banc), cert. denied, 119 S. Ct. 2371 (1999).
Therefore, the district court properly denied Larry’s motion
for judgment of acquittal of Count 1 on this basis.
b. Count 2
Larry asserts that the government failed to present sufficient
evidence to support Count 2, that he was involved in a sale of
heroin on April 17, 1992, in violation of 21 U.S.C.
§ 841(a)(1). Police Detective Enoch White testified that he
was working undercover with an informant at that time, and
they went to a house on Miami Avenue to buy drugs from
Larry. They were waiting in a front room of the house for
Nos. 98-3356/3847/3850 United States v.
Owusu, et al.
19
properly denied Larry’s motion for judgment of acquittal of
Count 11.
2. Quantity of Drugs Involved
We review a sentencing court’s calculation of the quantity
of drugs for which a defendant is accountable for clear error.
See United States v. Berry, 90 F.3d 148, 152 (6th Cir.), cert.
denied, 519 U.S. 999 (1996). Under the Sentencing
Guidelines, “a defendant is accountable for all quantities of
drugs with which he was directly involved and, in the case of
joint criminal activity, all reasonably foreseeable quantities.”
United States v. Ledezma, 26 F.3d 636, 646 (6th Cir.), cert.
denied, 513 U.S. 942 (1994). See also U.S.S.G.
§ 1B1.3(a)(1). The government must prove the quantity by a
preponderance of the evidence. See United States v. Walton,
908 F.2d 1289, 1302 (6th Cir.), cert. denied, 498 U.S. 906
(1990). As we explained in Part II.A.2 supra, if the exact
amount of drugs involved is uncertain, the court may make an
estimate supported by competent evidence in the record.
Larry argues that the district court erred in relying
exclusively on Owusu’s testimony in holding him accountable
for over 150 kilograms of cocaine. At sentencing, the district
court reviewed all of the evidence, including the amount of
drugs attributable from the testimony provided by the various
witnesses. In actually calculating Larry’s offense level, the
court only considered the drugs referred to in Owusu’s
testimony because that quantity already exceeded 150
kilograms of cocaine, which corresponds to the highest base
offense level in the Sentencing Guidelines. The sentencing
court concluded that Owusu was “a very credible witness”
before relying on his testimony for this purpose. J.A. at 654.
Owusu testified that he and Larry began in early 1988 by
purchasing a quarter of a kilogram of cocaine in New York
and then bringing it back to Ohio for distribution. They
continued by purchasing a half of a kilogram, then one
kilogram, and quickly moved up to two kilograms. On
September 5, 1988, they were arrested in New Jersey with

-- 14 of 16 --

18 United States v.
Owusu, et al.
Nos. 98-3356/3847/3850
eventually met up with him at Peoples’s grandmother’s house.
Once they arrived at the house, Peoples went directly to the
kitchen where Larry was sitting at the kitchen table. Wilson
followed him, but Larry and Peoples told him not to come
into the kitchen. Wilson stood in the adjoining living room
but could see part of the kitchen through a reflection from a
mirror and observed Peoples walking toward Larry. Peoples
then left the kitchen and asked Wilson to go out to the front
porch of the house with him. Peoples told Wilson how much
money Larry wanted for the crack cocaine, they haggled over
the price, Peoples took the money inside the house, and then
Peoples returned to the porch with 57 grams of crack.
Larry argues that Wilson’s testimony does not establish that
Larry was involved in this transaction because the crack
cocaine was purchased from Peoples on the porch of the
house without Larry present. Although Wilson saw Peoples
walking toward Larry, he did not see any drugs being
exchanged between them. In addition, Larry also questions
the credibility of Wilson’s testimony. However, we do not
make credibility determinations in evaluating the sufficiency
of evidence. See Hilliard, 11 F.3d at 620. Moreover,
Wilson’s testimony was corroborated and supplemented by
Peoples’s testimony. Peoples testified that on the night of
October 27, 1994, he met with Larry in the kitchen of his
grandmother’s house, and Larry gave him a couple of ounces
of crack cocaine. Peoples then sold the crack to Wilson on
the front porch of the house and gave the money to Larry.
Larry argues that Peoples’s testimony should be excluded
because it was provided in expectation of a more lenient
sentence in violation of 18 U.S.C. § 201(c)(2). As discussed
in Parts II.A.4 and II.B.1.a supra, this is not a valid argument.
Taken together, the testimony from Wilson and Peoples
provides sufficient evidence upon which a rational juror could
conclude beyond a reasonable doubt that Larry was directly
involved in the sale of 57 grams of crack cocaine to White on
October 27, 1994, satisfying the elements of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A)(iii). The district court thus
Nos. 98-3356/3847/3850 United States v.
Owusu, et al.
15
Larry to arrive for approximately twenty minutes when a
white automobile pulled up to the front of the house. Larry
and another man, Charles Smith, stepped out of the car and
walked directly to the kitchen area located in the back of the
house. The informant then went to the back of the house,
while White remained in the front room. The informant
returned to the front room with Smith, who was holding one
gram of heroin. Smith gave the heroin to the informant, who
gave it to White. White paid Smith $500 in cash, talked
about possible future deals, and then Smith returned to the
back area of the house. White admits that Larry never came
to the front of the house and that he only dealt with Smith and
the informant during this transaction.
Larry argues that this evidence is not sufficient to establish
that he was involved in this sale of heroin because White
never saw Larry with any drugs and did not have any direct
contact with him. The applicable statute states, “it shall be
unlawful for any person knowingly or intentionally — (1) to
manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance.”
21 U.S.C. § 841(a)(1). The government appears to argue that
Larry remained in the kitchen while Smith carried out the
transaction on his behalf by bringing the drugs from the
kitchen and then taking the money back to him, and,
therefore, Larry knowingly and intentionally distributed drugs
to White. The government did not, however, submit any
additional evidence to support this argument, to prove that
Larry was actually involved in this deal, or to show that he
routinely had Smith carry out his transactions. Because
sufficient evidence did not exist from which a rational juror
could conclude beyond a reasonable doubt that Larry was
guilty of this offense, the district court erred in denying his
motion for judgment of acquittal of Count 2. Therefore, we
reverse the district court’s denial of Larry’s motion for
judgment of acquittal of Count 2.

-- 15 of 16 --

16 United States v.
Owusu, et al.
Nos. 98-3356/3847/3850
c. Count 3
Larry also claims the government presented insufficient
evidence to find him guilty of Count 3, distribution of heroin
on May 7, 1992, in violation of 21 U.S.C. § 841(a)(1).
Detective White testified that he went to the informant’s
house at 62 North Waverly on that date to purchase drugs. He
arrived at the house at the same time as Larry and two other
individuals. White went inside to the front area of the house,
while Larry and the informant went to the kitchen area for
approximately three or four minutes. White was then called
to the kitchen area and asked to show that he had $1,000 cash
to purchase two grams of heroin. After displaying the money,
Larry told White that he did not have the drugs on him and
had to go get them. Larry left the house and was gone for
approximately ten minutes. When Larry returned, he went to
the kitchen area while White remained in the front room.
White was able to see what was happening in the kitchen
through a reflection from the front of the microwave, and he
observed Larry pulling something out of his pocket. Five
minutes later, White was called into the kitchen and a package
containing two grams of heroin was on the kitchen table.
White picked it up and put the money on the table, as
instructed by Larry. He did not see Larry pick up the money.
White then went upstairs with the informant, who gave him
an ounce of heroin which was to be “fronted” to him by Larry.
White never ended up paying Larry for this “fronted” heroin,
even though he attempted to do so on several occasions.
Larry argues that White’s testimony is not sufficient for a
rational fact finder to conclude that he sold the heroin to
White because White only saw a package of heroin on the
table and never actually saw Larry with the drugs. However,
Larry told White he could get heroin for him and departed for
ten minutes. White saw Larry pull something out of his
pocket, and then a package of heroin was on the table, which
Larry allowed White to take once he put his money on the
table. This is sufficient evidence upon which a rational juror
could find beyond a reasonable doubt that Larry knowingly
Nos. 98-3356/3847/3850 United States v.
Owusu, et al.
17
and intentionally distributed the heroin to White. With
respect to the “fronted” heroin, the informant gave it to White
when they were alone upstairs, out of Larry’s presence.
White did not have any further contact with Larry after that
night, and Larry never accepted payment for this heroin
because he claims he was not involved in that transaction.
White testified that the heroin was fronted by Larry, but
White did not explain this assertion any further, and the
government did not produce any other evidence to support it.
Because Larry cannot be tied to this heroin, there was
insufficient evidence for any rational fact finder to conclude
that Larry knowingly and intentionally distributed this
“fronted” heroin. Therefore, the district court should have
granted Larry’s motion for judgment of acquittal regarding the
“fronted” heroin in Count 3. Because there was sufficient
evidence for the first transaction, this is harmless error and
Larry’s conviction of this count is not vacated. See FED . R.
C RIM. P. 52(a). In addition, no heroin was included in Larry’s
base offense level for sentencing purposes because he had
already reached the highest offense level under the Sentencing
Guidelines on the basis of cocaine attributable to him through
the conspiracy offense. Therefore, it is unnecessary to
remand the case for resentencing for any heroin improperly
attributed to him under Counts 2 and 3.
d. Count 11
Larry also argues that the government submitted
insufficient evidence of Count 11, that he distributed more
than 50 grams of crack cocaine on October 27, 1994, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii).
Federal agent Paris Wilson testified that he went undercover
and befriended a man named Hyman Dixon, who helped
make arrangements for him to purchase drugs from different
individuals, including Anthony Peoples. On October 27,
1994, Dixon told Peoples that Wilson wanted to purchase an
eighth of a kilogram of crack cocaine, and Peoples said he
would have to obtain that amount from Larry. Wilson and
Peoples made several attempts to get in touch with Larry and

-- 16 of 16 --