UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

MATHIS, EDDIE J.


99-3012a

D.C. Cir. 2000


*	*	*


Karen LeCraft Henderson, Circuit Judge: Appellants  Eddie Mathis,
Walter Mathis and Maurice Lee were convict- ed on a single count of
conspiracy to distribute and possess  with the intent to distribute
heroin and cocaine in violation of  21 U.S.C. s 846. The appellants
challenge their convictions, 


claiming that the government's evidence at trial proved multi- ple
conspiracies and that the variance between the single  conspiracy
charge on which they were indicted and the evi- dence against them
substantially prejudiced them. Addition- ally, Walter Mathis claims
that the district court erroneously  admitted other crimes evidence at
trial and committed two  sentencing errors. Appellants Eddie Mathis
and Lee also  challenge the district court's application of the United
States  Sentencing Guidelines (Guidelines) in sentencing them. Fi-
nally, Lee claims that the district court erroneously admitted  his
handgun and certain legal documents into evidence. We  conclude that
while the government's conspiracy evidence  varied from the conspiracy
charged, the variance did not  substantially prejudice the appellants.
We affirm the district  court in all other respects except for its
application of section  4A1.1(d) of the Guidelines in sentencing
Walter Mathis. Ac- cordingly, we affirm all three appellants'
convictions and  Eddie Mathis's and Lee's sentences but vacate Walter
Math- is's sentence and remand to the district court to resentence 
him in accordance with this opinion.


I.


Viewed most favorably to the government, see United  States v. Thomas,
114 F.3d 228, 244 (D.C. Cir. 1997), the  evidence showed that in about
May 1996 Eddie Mathis, with  his nephew Lee's assistance,
reestablished a preexisting drug  distribution network. Eddie Mathis
obtained cocaine and  heroin from different suppliers and sold it to
Eugene Mat- thews, who then resold it on the streets of the District
of  Columbia (District). On September 18, 1996 Eddie Mathis's 
brother, Walter Mathis, finished his parole term and "be- tween
September and October" of 1996 joined the conspiracy  by delivering an
ounce of heroin to Matthews. Trial Tr.  4/30/98 at 128. During this
time, agents of the Drug Enforce- ment Administration (DEA) were
investigating another co- caine dealer, Robert Andrews (Eddie Mathis's
father-in-law).  By wiretapping Andrews's telephones, DEA agents
learned  that Andrews and Eddie Mathis shared the same New York  drug
supplier, Miguel Franklin Castro. Andrews had intro-


duced Eddie Mathis to Castro's initial courier, Elias Rodri- guez, to
whom Eddie Mathis expressed an interest "in dealing  with heroin."
Trial Tr. 5/6/98 (a.m.) at 56. Andrews and  Eddie Mathis pooled their
money to buy enough cocaine and  heroin from Castro (through
Rodriguez) to make it "worth it  for [Rodriguez] to come" to the
District. Trial Tr. 5/6/98  (p.m.) at 12. Castro's new courier,
Vladimir Perez, at first  delivered the drugs to Andrews's house and
also delivered  cocaine and heroin to Harold Corbett, another drug
dealer  operating in the District. Soon Eddie Mathis himself ordered 


On March 8, 1997 DEA agents, acting undercover, ordered  250 grams of
heroin from Andrews. After Perez delivered  the heroin, the police
arrested both Andrews and Perez.  They pleaded guilty and Perez
identified Castro, Rodriguez  and Eddie Mathis as coconspirators. On
July 9, 1997 DEA  agents arrested Castro as he was preparing to sell
Eddie  Mathis 300 grams of heroin. Castro pleaded guilty to drug 
trafficking charges and cooperated with the DEA by making  several
monitored telephone calls to Eddie Mathis to arrange  a drug deal.
Castro arranged a heroin sale to Eddie Mathis.  Eddie Mathis
dispatched Lee to purchase the heroin and a  DEA agent arrested Lee on
August 20, 1997. DEA agents  were unable to arrest Eddie Mathis before
he went into  hiding but they subsequently filed a complaint against
him  and obtained a warrant for his arrest.


Meanwhile, in July 1997 Eddie Mathis contacted Rodney  Patterson and
Terry Kelton, who were then inmates at the  United States Penitentiary
in Lewisburg, Pennsylvania, about  arranging a drug transaction.
Patterson and Kelton intro- duced Eddie Mathis to Peter Coley, a
fellow inmate. Unbe- knownst to Eddie Mathis, Coley had agreed to
assist DEA  agents in setting up a drug sale to Eddie Mathis. Through 
monitored telephone calls, Coley spoke to Eddie and Walter  Mathis
several times. With the help of DEA agent Samuel  Bates, Coley
arranged a drug transaction at the Landover  Mall in Landover,
Maryland. On November 5, 1997 Bates  and an undercover Baltimore City
Police detective, carrying a  five kilogram package of sham cocaine,


and Dee Smith at the Landover Mall. Walter Mathis then  dispatched
Smith, who drove a gold and tan Geo vehicle, to  pick up Eddie Mathis.
Eddie Mathis arrived at the Mall  fifteen minutes later. Smith then
left the Mall in his Geo.  Bates showed Eddie Mathis the cocaine, who
replied "Okay,"  and DEA agents then arrested both Eddie and Walter
Math- is. Trial Tr. 5/12/98 at 148. Less than an hour later DEA 
agents spotted Smith's gold and tan Geo parked in front of  the
Glenarden Apartments adjacent to the Landover Mall.  Inside an
apartment the officers found and searched Smith,  recovering a
semiautomatic handgun magazine. In the glove  compartment of the Geo
the officers recovered Smith's loaded  semiautomatic handgun. A search
of Smith's apartment un- covered copies of court documents related to
Lee which Lee  had mailed to a Maryland post office box and letters
from  Kelton to Smith regarding Lee's court proceedings.


The government secured a six-count indictment against  Eddie Mathis,
Walter Mathis, Lee and Rodriguez, charging  each of them with one
count of conspiracy to distribute and  possess with the intent to
distribute heroin and cocaine in  violation of 21 U.S.C. s 846.
Additionally, Eddie Mathis was  charged individually with two counts
of possession of heroin  with intent to distribute and one count of
possession of  cocaine with intent to distribute in violation of 21
U.S.C.  s 841(a)(1) & (b)(1)(B)(i); he and Lee were jointly charged 
with one count of possession of heroin with intent to distrib- ute in
violation of 21 U.S.C. s 841(a)(1) & (b)(1)(B)(i). Eddie  Mathis was
also charged with one count of conspiracy to  launder money in
violation of 21 U.S.C. s 841(a)(1) &  (b)(1)(B)(ii). On May 22, 1998 a
jury found Eddie and Walter  Mathis and Lee guilty of conspiracy.1
After the district court  sentenced the appellants, they filed their




__________

n 1 Eddie Mathis was convicted on two counts and Lee on one count  of
possession of heroin with intent to distribute in violation of 21 
U.S.C. s 841(a)(1) & (b)(1)(B)(i). Eddie Mathis was also convicted  of
money laundering in violation of 18 U.S.C. s 1956(a)(1)(B)(i).  The
jury acquitted him on the two remaining counts against him  and also
acquitted Rodriguez of conspiracy.


II.


The indictment charged Eddie and Walter Mathis and Lee  with
participating in a single conspiracy to possess and dis- tribute
cocaine and heroin from "at least in or about May  1996 to on or about
November 5, 1997." Indictment at 1.  The appellants concede that the
evidence establishes a con- spiracy among themselves, Castro,
Rodriguez, Perez and  Matthews (the Mathis-Castro conspiracy) but
contend it end- ed with Lee's arrest on August 20, 1997,2 after which
date all  participants except Eddie and Walter Mathis were under 
arrest. They contend that evidence of the transaction culmi- nating in
the November 5 reverse sting involving Coley and  the Mathises
constituted a separate conspiracy (the Mathis- Coley conspiracy) which
materially varied from the conspira- cy on which they were indicted.
In addition, Eddie Mathis  contends that evidence of Castro's drug
deliveries to Andrews  involved a separate conspiracy (the
Andrews-Castro conspira- cy) from the Mathis-Castro conspiracy.


A. Variance


In order to establish that a variance between the indict- ment and the
evidence requires a reversal of their convic- tions, the appellants
must demonstrate


(1) that the evidence at trial established the existence of  multiple
conspiracies, rather than the one conspiracy  alleged in the
indictment, and  (2) that because of the multiplicity of defendants
and  conspiracies, the jury was substantially likely to transfer 
evidence from one conspiracy to a defendant involved in  another.


United States v. Gaviria, 116 F.3d 1498, 1516 (D.C. Cir. 1997) 
(quotation omitted). To determine whether the evidence  supports a
single conspiracy as opposed to multiple conspira- cies, the court,
viewing the evidence in the light most favor- able to the government,
see Thomas, 114 F.3d at 244, looks at  "whether the defendants shared
a common goal, any interde- pendence among the participants, and any
overlap among the 




__________

n 2 All dates occurred in 1997 unless otherwise noted.


participants in the allegedly separate conspiracies." Gaviria,  116
F.3d at 1533 (citation omitted). The participants shared  a common
goal to distribute drugs for profit in the District.  Furthermore,
Eddie and Walter Mathis's involvement with  participants Castro,
Andrews and Coley established cocon- spirator overlap. See id. at 1533
(overlap satisfied when main  conspirator works with all
participants); United States v.  Gatling, 96 F.3d 1511, 1520 (D.C.
Cir. 1996) (overlap satisfied  when "main figures" are involved in all


The government, however, did not show the participants' 
interdependence in a single conspiracy. It established a  "hub"
conspiracy consisting of appellants Eddie and Walter  Mathis and Lee.3
To further their conspiracy the appellants  obtained drugs from
different suppliers including Castro,  Andrews and Coley. Each
supplier became a separate  "spoke" of the hub.4 But "[w]ithout a rim
to enclose the  spokes, ... the evidence ma[kes] out multiple
conspiracies,  not the single one alleged." United States v.
Tarantino, 846  F.2d 1384, 1392 (D.C. Cir. 1988) (citing Kotteakos v.
United  States, 328 U.S. 750, 755 (1946)). At oral argument the 
government described the rim enclosing the supplier spokes  as the
common goal to sell illegal drugs in the District.  According to the
government, it needed to show interdepen- dence only among the hub
sellers, not among the spoke  suppliers. See Appellee's Br. 24. Our
caselaw, however,  teaches that competing spoke suppliers in a hub
conspiracy  must not only have a connection to the hub sellers5 but




__________

n 3 The "hub" is "the focal, key or central member[s] of a wheel 
conspiracy." United States v. Flood, 965 F.2d 505, 509 (7th Cir.


4 The "spokes" are the hub's "associates" who are involved in 
individual transactions and "know that they are working for the  hub."
United States v. Payne, 99 F.3d 1273, 1279 n.5 (5th Cir.  1996).


5 The government does not dispute that interdependence must  exist
between the spoke suppliers and the hub conspiracy. See  Appellee's
Br. 24.


a rim and constitute a single conspiracy. In United States v.  Graham,
83 F.3d 1466 (D.C. Cir. 1995), the government  established the
operation of the "Newton Street Crew," a  cocaine trafficking
organization consisting of three different  "cliques" or groups of
people selling drugs together. The  three defendants charged with
conspiracy were members of  the same clique but the government used
evidence of the  entire drug operation, including all three cliques,
to establish  the conspiracy. The court analyzed the connections among
 the three drug cliques in concluding that the evidence "was 
sufficient for a reasonable juror to conclude that ... the  cliques
were dependent on each other." Graham, 83 F.3d at  1472; see also
United States v. Anderson, 39 F.3d 331, 347  (D.C. Cir. 1994), rev'd
in part en banc, 59 F.3d 1323 (D.C.  Cir. 1995) (core hub conspiracy
with various unrelated suppli- ers "likely ... varied from the
indictment's conspiracy  count") (citing United States v. Townsend,
924 F.2d 1385,  1395-1402 (7th Cir. 1991) (conspiracy requires
interdependen- cy among competing suppliers)). Although "fairly
minimal"  evidence may establish interdependency, Gatling, 96 F.3d at 
1522, some connection among competing spoke suppliers in a  hub
conspiracy must exist in order to constitute one conspira- cy. With
the foregoing in mind, we must determine whether  spoke suppliers


The evidence supports Andrews's involvement not solely  with Eddie
Mathis but also with Castro. Andrews introduced  Eddie Mathis to
Castro and DEA surveillance of Andrews  uncovered Eddie Mathis's
subsequent connection with Castro.  Furthermore, according to Castro,
Eddie Mathis relied on  Andrews as an initial critical link to order
heroin from Castro.  Finally, Castro delivered drugs to both Andrews
and Eddie  Mathis at Andrews's house. This evidence is more than 
sufficient for a reasonable juror to conclude that Andrews had  the
requisite connection to competing supplier Castro and  thus
participated in the Mathis-Castro conspiracy. See Gra- ham, 83 F.3d at
1471 (finding interdependency among cliques  that purchased and


The evidence does not, however, manifest a connection  between Coley
and either Castro or Andrews. The govern- ment does not point us to
evidence of such a connection,  apparently assuming that
interdependency among suppliers is  not required. With no connection
between Coley and either  Castro or Andrews, however, we conclude that
the Mathis  brothers' transaction with Coley constituted a separate
con- spiracy, the Mathis-Coley conspiracy. Accordingly, the gov-
ernment's evidence regarding Coley and the November 5  reverse sting
varied from the Mathis-Castro conspiracy  charged in the indictment.


In order to reverse their convictions, however, the appel- lants must
show that the variance "substantially prejudiced"  them through
"spillover prejudice." Gaviria, 116 F.3d at  1533. Substantial
prejudice occurs when multiple defendants  are charged with a large
and complex conspiracy and spill- over prejudice confuses the jurors.
See United States v.  Stewart, 104 F.3d 1377, 1382 (D.C. Cir. 1997)
(trial of multiple  defendants increases "danger that, due to
'spillover' effects,  appellant might be found guilty based on
evidence properly  admitted only against someone else"). The record
here does  not suggest such spillover prejudice or jury confusion.
First,  the risk of "spillover prejudice ... is less likely the fewer
the  defendants." Gaviria, 116 F.3d at 1533 (no risk of prejudice 
with four charged defendants); see also Anderson, 39 F.3d at  348 (no
risk of prejudice with ten charged defendants). Here,  as in Gaviria,
the government indicted only four defendants.  Second, the government
introduced tape recordings of con- versations among Eddie Mathis,
Castro and Andrews and  among Eddie and Walter Mathis and Coley. The
govern- ment also used a videotape of Lee selling drugs. The jury, 
therefore, had " 'no need to look beyond each defendant's own  words
in order to convict.' " Gaviria, 116 F.3d at 1533  (quoting Anderson,
39 F.3d at 348). Third, Eddie and Walter  Mathis played roles in both
the Mathis-Castro and the Math- is-Coley conspiracies. See id.
Finally, the district court  instructed the jury that it could convict
only if the evidence  supported one conspiracy instead of two. See
Trial Tr.  5/20/98 at 32. Neither the Mathis brothers nor Lee objected
 to the jury charge, see id., and they therefore bear a "heavy 


burden of showing substantial prejudice" because the "jury is  presumed
to follow a trial court's instructions." United  States v. Jackson,
627 F.2d 1198, 1213 (D.C. Cir. 1980)  (citations omitted). In sum,
although we find a variance  between the indictment charging a single
conspiracy and the  trial evidence indicating more than one
conspiracy, we con- clude the variance did not substantially prejudice
the appel- lants.6


B. Walter Mathis


The indictment charged only one conspiracy (the Mathis- Castro
conspiracy); the government's evidence of the Mathis- Coley conspiracy
therefore constituted "other crimes" evi- dence under Federal Rule of
Evidence 404(b), and, Walter  Mathis claims, was improperly admitted.7
We review the  district court's admission of "other crimes" evidence
for abuse  of discretion. Graham, 83 F.3d at 1472. Evidence of an 
uncharged crime or bad act is admissible if it is relevant,8 




__________

n 6 Eddie Mathis also argues that evidence of Castro's drug sales to 
another dealer, Corbett, established a separate conspiracy. Corbett 
obtained drugs initially from Andrews and later from Castro, see 
Trial Tr. 5/5/98 (a.m.) at 37, thus showing interdependency among  the
Mathis-Castro conspiracy participants. See Graham, 83 F.3d  at 1472.
There is no evidence, however, linking Corbett (as a spoke  or
otherwise) in the Mathis-Castro hub conspiracy including Eddie  and
Walter Mathis and Lee. Assuming without deciding that  Corbett's
involvement with Andrews and Castro indicates a sepa- rate conspiracy,
we conclude that the evidence of that conspiracy  was not
substantially prejudicial to Eddie Mathis. See Anderson,  39 F.3d at


7 Walter Mathis contends for the first time on appeal that,  because of
the variance, the government's indictment joined two  conspiracies and
was therefore duplicative. This argument is  waived, however, because
defenses based on " 'defects in the indict- ment' ... are waived under
[Federal Rule of Criminal Procedure]  12(f) if not raised prior to
trial." United States v. Weathers, 186  F.3d 948, 952 (D.C. Cir. 1999)
(quoting Fed. R. Crim. P. 12(b)).


8 "Relevant evidence" is "evidence having any tendency to make  the
existence of any fact that is of consequence to the determination 


probative of a material issue (such as intent) other than the 
defendant's character9 and its probative value is not substan- tially
outweighed by its prejudicial effect.10 See Gaviria, 116  F.3d at
1532. In a conspiracy prosecution, the government is  usually allowed
considerable leeway in offering evidence of  other offenses "to inform
the jury of the background of the  conspiracy charged, to complete the
story of the crimes  charged, and to help explain to the jury how the
illegal  relationship between the participants in the crime devel-
oped."11 United States v. Williams, 205 F.3d 23, 33-34 (2d  Cir. 2000)
(internal quotation marks and quotation omitted).  Evidence of the
Mathis-Coley conspiracy was relevant to  show Walter Mathis's intent
to act in concert with his brother  Eddie Mathis to possess drugs with
the intent to distribute  them. Furthermore, the probative value of
the Mathis-Coley  conspiracy is not "substantially outweighed" by its
prejudicial  effect. Evidence tending to demonstrate "intent, plan,
prepa- ration, and motive ... is particularly probative where the 
government has alleged conspiracy," United States v. Sam- pol, 636
F.2d 621, 659 & n.23 (D.C. Cir. 1980) (citations  omitted), and as
discussed supra, evidence of the Mathis-




__________

n of the action more probable or less probable than it would be 
without the evidence." Fed. R. Evid. 401.


9 In pertinent part, Federal Rule of Evidence 404(b) provides:


Evidence of other crimes, wrongs, or acts is not admissible to  prove
the character of a person in order to show action in  conformity
therewith. It may, however, be admissible for  other purposes, such as
proof of ... intent, ... plan.... 


10 Federal Rule of Evidence 403 provides:


Although relevant, evidence may be excluded if its probative  value is
substantially outweighed by the danger of unfair  prejudice, confusion
of the issues, or misleading the jury, or by  considerations of undue
delay, waste of time, or needless  presentation of cumulative
evidence.


11 We note that "the principles governing what is commonly  referred to
as other crimes evidence are the same whether the  conduct occurs
before or after the offense charged." United States  v. Latney, 108
F.3d 1446, 1449 (D.C. Cir. 1997).


Coley conspiracy did not substantially prejudice Walter Math- is. In
light of the government's recognized latitude in using  other crimes
evidence in a conspiracy prosecution and the  probative value of the
Mathis-Coley conspiracy to show in- tent, we conclude that the
district court did not abuse its  discretion in admitting evidence of
the Mathis-Coley conspir- acy.


Walter Mathis also raises two challenges under the Guide- lines. First,
he claims that the district court erroneously  failed to apply section
3B1.2(b) which provides a two-level  reduction for a "minor
participant," defined as "any partici- pant who is less culpable than
most other participants."  U.S.S.G. s 3B1.2, Application Note 3. A
minor participant's  relevant conduct must involve more than one
participant and  " 'culpability for such conduct [must be] relatively
minor  compared to that of the other participant(s).' " United States 
v. Edwards, 98 F.3d 1364, 1370 (D.C. Cir. 1996) (quoting  United
States v. Caballero, 936 F.2d 1292, 1299 (D.C. Cir.  1991)). Walter
Mathis contends that his role in the Mathis- Castro conspiracy was
similar to Lee's (who did receive the  minor participant reduction)
and therefore the district court  erroneously found that his was not a
"relatively minor" role  compared to the other participants' roles.
Because "[t]he  application of section 3B1.2 is inherently fact-bound"
it is  "largely committed to the discretion of the trial judge." 
Caballero, 936 F.2d at 1299. Ultimately, we uphold the  district
court's findings of fact unless "clearly erroneous."  United States v.
Bridges, 175 F.3d 1062, 1065 (D.C. Cir.  1999).


The district court decided Lee was a minor participant  because he "was
used only as a messenger" or a "gopher" in  small deals. Sentencing
Tr. 1/6/99 at 72. Lee did not play "a  role in the planning of the
criminal enterprise." Id. at 73.  Walter Mathis, on the other hand,
participated in a series of  telephone calls in which he, Eddie Mathis
and others  "planned, discussed and arranged for the delivery of 5
kilo- grams of cocaine," which was "the largest single delivery of 
drugs in the whole case." Id. at 47-48. Although we have  concluded
that the November 5 reverse sting was not part of 


the offense of conviction, the district court may nonetheless  consider
it at sentencing as relevant conduct. See United  States v. Drew, 200
F.3d 871, 879 (D.C. Cir. 2000) (citing  United States v. Nichols, 511
U.S. 738, 747 (1994)). The  district court correctly considered Walter
Mathis's relevant  conduct in the November 5 reverse sting and,
accordingly, it  did not clearly err in failing to apply section
3B1.2(b)'s minor  participant reduction to him notwithstanding its
treatment of  Lee to the contrary.


Finally, Walter Mathis contends that the district court  erroneously
applied section 4A1.1(d)'s two-point increase to  his offense level
because the government did not prove by a  preponderance of the
evidence that he was on parole at the  time of his offense.12 In view
of the government's conces- sion,13 we conclude that the district
court clearly erred in this  factual determination and we remand for
resentencing be- cause of the incorrect addition of a two-level
adjustment  under section 4A1.1(d). See Drew, 200 F.3d at 874.


C. Eddie Mathis


Eddie Mathis also challenges the district court's application  of
section 2D1.1(b)(1) of the Guidelines providing a two-level  increase
"[i]f a dangerous weapon (including a firearm) was  possessed" during
a drug offense. The weapon need not be  used, but merely "present,
unless it is clearly improbable that  the weapon was connected with
the offense." U.S.S.G.  s 2D1.1, Application Note 3; see United States
v. Burke, 888  F.2d 862, 869 (D.C. Cir. 1989) (section 2D1.1(b)(1)
does not  require that defendant "used or would have used the fire-
arm"). Within one hour of arresting Eddie and Walter  Mathis during
the November 5 reverse sting, DEA agents  arrested Smith carrying
ammunition and discovered his load-




__________

n 12 Section 4A1.1(d) provides a two point increase "if the defendant 
committed the instant offense while under any criminal justice 
sentence, including ... parole."


13 "[W]e concede that the record does not show by a preponder- ance
that appellant committed the offense while on parole." Appel- lee's
Br. 48.


ed handgun in the glove compartment of the Geo he had  driven from the
crime scene. Furthermore, it was foresee- able to Eddie Mathis that
his coconspirator Smith would be  carrying a firearm in view of the
fact that Eddie and Walter  Mathis were purchasing five kilograms of
cocaine for $75,000  from a stranger. See Childress, 58 F.3d at 725
(coconspira- tor's possession of handgun reasonably foreseeable when 
conspirators "handled a substantial quantity of drugs and  money").
Because the district court's finding that Smith  possessed the firearm
at the shopping mall where the reverse  sting took place, see
Sentencing Tr. 1/6/99 at 37-38, is sup- ported by a preponderance of
the evidence and because  Smith's possession was reasonably
foreseeable, we conclude  that the district court did not clearly err
in applying section  2D1.1(b)(2)'s two-level increase to Eddie


D. Lee


Lee challenges his conviction, claiming that the district  court
improperly admitted evidence at trial.14 We review the  district
court's evidentiary rulings for abuse of discretion.  See United
States v. Williams, 2000 WL 665562, at *3 (D.C.  Cir. 2000). The
improper admission of evidence is harmless  unless the reviewing court
determines that the defendant was  substantially prejudiced thereby.
See United States v. Small,  74 F.3d 1276, 1280 (D.C. Cir. 1996).
First, Lee contends that  the district court improperly admitted into
evidence the hand- gun he possessed on July 17, 1996 because it later
determined  at sentencing that there was "no evidence this gun was 
carried by Lee for the purpose of furthering the ends of the  drug
conspiracy." Sentencing Tr. 1/6/99 at 72. The district  court's
determination at sentencing, however, does not auto- matically equate
to inadmissibility at trial because the two 




__________

n 14 In passing, Lee asserts that the prosecutor improperly argued 
during closing that the goal of the conspiracy was "selling drugs for 
profit in the District of Columbia." Trial Tr. 5/19/98 at 3. We need 
not address this " 'asserted but unanalyzed' argument." SEC v.  Banner
Fund Int'l, 211 F.3d 602, 613 (D.C. Cir. 2000) (quoting  Carducci v.
Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)).


rulings apply different standards. The court admitted Lee's  handgun at
trial under the "relevant evidence" standard of  Federal Rule of
Evidence 402. See supra n.8. "Relevant  evidence" need only tend to
make the existence of a fact "of  consequence" more or less probable.
The standard applica- ble to the court's ruling at sentencing,
however, is preponder- ance of the evidence, that is, "evidence which
as a whole  shows that the fact sought to be proved is more probable
than  not.... '[P]reponderance' means something more than  'weight';
it denotes a superiority of weight, or outweighing."  United States v.
Montague, 40 F.3d 1251, 1255 & n.2 (D.C.  Cir. 1994) (internal
quotation marks and quotation omitted).  Lee's possession of the
handgun, although not directly fur- thering the Mathis-Castro
conspiracy, may have nonetheless  constituted relevant evidence. See
In re Sealed Case, 105  F.3d 1460, 1463 (D.C. Cir. 1997) (guns are
common "tools of  the trade" for drug dealers) (quotation omitted). In
United  States v. Payne, 805 F.2d 1062 (D.C. Cir. 1986), the court
held  that the defendant's gun seized at the time and place of a  drug
transaction was admissible as drug paraphernalia. See  Payne, 805 F.2d
at 1066 n.5. Although Lee's gun was not  found at the time drugs were
bought or sold, it was found  during the existence of the
Mathis-Castro conspiracy. In  addition, the government did not mention
Lee's handgun in  closing, thus mitigating any negative effect.
Furthermore,  the government introduced a videotape of Lee selling
drugs  as part of the Mathis-Castro conspiracy. In view of this 
uncontroverted evidence of Lee's involvement in the conspira- cy, we
conclude that the district court's admission of Lee's  handgun, if
error, was nevertheless harmless. See United  States v. Olano, 507
U.S. 725, 734-35 (1993) (non-prejudicial  harmless error not grounds


Lee's contention that the district court improperly admitted  into
evidence certain legal documents related to his case  similarly lacks
merit. The documents, which included redact- ed copies of the criminal
complaints filed against Lee, see  Government Exhibits 610R, 611R,
612R & 613R, bore Lee's  name, were found in Smith's apartment and
showed that Lee  maintained a "continuing connection" with Eddie


after his (Lee's) arrest. Trial Tr. 5/13/98 (p.m.) at 14. Al- though at
sentencing the court found that Lee's participation  "ended with his
arrest on August 20, 1997," Sentencing Tr.  1/6/99 at 72, it did not
abuse its discretion in admitting these  documents at trial because
they were relevant to show Lee's  continued connection with Eddie
Mathis. Even if the court  did err in admitting the redacted
documents, the documents  contained no substantially prejudicial
information and there- fore any error was harmless.


Finally, Lee challenges the district court's application of  the
Guidelines, claiming that it erroneously failed to apply  section
5C1.2's safety valve provision.15 Lee bears the bur- den to establish
by a preponderance of the evidence that he is  entitled to safety
valve relief. See United States v. White, 1  F.3d 13, 18 (D.C. Cir.
1993) ("defendant properly bears the  burden of proof under those
sections of the Guidelines that  define mitigating factors") (internal
quotation marks and  quotation omitted). Only the last of section
5C1.2's five  criteria is pertinent here, requiring that:


(5) not later than the time of the sentencing hearing, the  defendant
has truthfully provided to the Government all  information and
evidence the defendant has concerning  the offense or offenses that
were part of the same course  of conduct or of a common scheme or
plan, but the fact  that the defendant has no relevant or useful other
infor- mation to provide or that the Government is already  aware of
the information shall not preclude a determina- tion by the court that
the defendant has complied with  this requirement.


See also 18 U.S.C. s 3553(f)(5). Lee argued below that he  satisfied
section 5C1.2(5) notwithstanding he had no useful  information to
provide the government. Lee, however, did  not proffer any
information, useful or not. On appeal, Lee 




__________

n 15 Section 5C1.2 provides that if five criteria set out in 18 U.S.C. 
s 3553(f)(1)-(5) are met, "[i]n the case of an offense under 21 U.S.C.
 s 841, ... [or] s 846 ..., the court shall impose a sentence in 
accordance with the applicable guidelines without regard to any 
statutory minimum sentence."


claims that a proffer would have been futile because the  government
stated at sentencing that "at this point, post trial,  it certainly
wouldn't be a productive debriefing." Sentencing  Tr. 1/6/99 at 68.
Nevertheless, Lee cannot avoid his affirma- tive disclosure obligation
merely because the government  suggests a debriefing would be
unproductive. See United  States v. Ivester, 75 F.3d 182, 184-85 (4th
Cir. 1996) ("[D]e- fendants seeking to avail themselves of downward
departures  under s 3553(f) bear the burden of affirmatively
acting.").  Because Lee failed to proffer information of any kind to
the  government, we conclude that the district court did not  clearly
err by not applying section 5C1.2.


For the foregoing reasons, we affirm the convictions of  Eddie Mathis,
Walter Mathis and Maurice Lee. In addition  we affirm the sentences
imposed on Eddie Mathis and Mau- rice Lee but remand to the district
court to resentence  Walter Mathis in accordance with this opinion.


So ordered.