879 F2d 505 United States v. Hoyt  879 F.2d 505  UNITED STATES
of America, Plaintiff-Appellee, Brian HOYT, aka Brian Doyle,
Defendant-Appellant.  No. 87-1224.  United States Court of
Appeals, Ninth Circuit.  Argued and Submitted April 13, 1988.
Decided March 17, 1989. As Amended June 15 and Aug. 16, 1989. As
Amended Nov. 9, 1989.*   Marvin S. Cahn, Claire Leary, San
Francisco, Cal., for defendant-appellant.   Joseph P.
Russoniello, U.S. Atty., Samuel Wong, Asst. U.S. Atty., San
Jose, Cal., for plaintiff-appellee.     Before BOOCHEVER and
BRUNETTI*, Circuit Judges, and STEPHENS** District Judge.
STEPHENS, Senior District Court Judge:   On January 22, 1987,
Drug Enforcement Agency (DEA) agents arrested appellant Brian
Hoyt while Hoyt was in the process of selling five kilograms of
cocaine to an undercover agent, Mark Nelson. A one count
indictment charged Hoyt with violating 21 U.S.C. Sec.
841(a)(1)--possession with intent to distribute five thousand
grams or more of cocaine. On May 13, 1987, a jury found Hoyt