UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 95-50248

_________________________

UNITED STATES OF AMERICA

Plaintiff-Appellee,

VERSUS

ANTHONY LAMONE MISHER, RICKY E. LEVI,

RODNEY EARL HESLIP, and KEITH O. COBB

Defendants-Appellees.

___________________________________________

Appeals from the United States District Court

for the Western District of Texas

__________________________________________

October 30, 1996

Before REYNALDO G. GARZA, JOLLY, and DeMOSS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

This appe al arises from a drug conspiracy which operated in

Waco, Texas, from 1989 to 1993. All the appellants were convicted

an d sentenced on indictments arising from this conspiracy. More

specifically, all the appellants were convicted for conspiring to

possess and distribute cocaine in and a bout the Waco area.

Additionally, appellants Cobb and Levi were also convicted for

conspiring to launder money from the proceeds they received out of

the drug conspiracy. All the appellants challenge both their

convictions and their sentences.1 Neither Busby nor Hicks is a party to this appeal. Hicks

pled guilty to Count Three of the indictment and Busby pled guilty

to Count Four. They testified for the government at trial.

2 Bradshaw is not a party to this appeal

.

3 See note 1, supra

.

2

I. Facts and Summary of Proceedings

In January 1994, a federal grand jury, sitting in the Waco

Division of the Western District of Texas, filed the second

superseding indictment (“the indictment”) involved in the instant

case. Count one of the indictment charged Appellants Anthony

Lamone Misher, Ricky E. Levi, Rodney Earl Heslip, and Keith O.

Cobb, as well as Clemond E. Busby, and Gerald D. Hicks, Jr. 1 and

others known and unknown to the Grand Jury, with conspiring to

possess cocaine with the intent to distribute it, in violation of

21 U.S.C. § 846, and actually distributing it, in violation of 21

U.S.C. § 841(a)(1). Count two charged Appellant Cobb and Natalie

Annique Bradshaw 2 with conspiring to launde r money by using funds

they knew to be the proceeds of illicit drug trafficking to

purchase a 1984 Jaguar in such a way as to disguise the nature,

location, source, ownership, and control of the drug proceeds, in

violation of 18 U.S.C. § 1956(a)(1)(B)(i). In Count Three of the

indictment, the grand jury c harged Appellant Levi and Gerald D.

Hicks, Jr. 3

, with laundering money in the same fashion as Appellant

Cobb had been charged in Count Two. A jury convicted all the

appellants as charged in their indictments.

The district court sent enced Misher to serve 360 months in3

prison and four years of supervised release. It also ordered him

to pay a $50 special assessment and a $3,000 fine.

The district court sentenced Levi to serve 300 mo nths in

prison and five years on supervised release on Coun t One of the

indictment; he was sentenced to 240 months in prison and three

years of supervised release on Count Three. The court ordered the

sentences on Count Three to be served concurrent to those on Count

One. It also imposed a $100 special assessment and a $3,000 fine.

Heslip w as ordered to serve a 120-month imprisonment term

followed by five years of supervised release for his conviction on

Count One of the indictment. The court imposed a $50 special

assessment and a $2,000 fine, as well.

Cobb was sentenced to 400 months in prison and five years of

supervised release on Count One; he was ordered to serve 360 months

in prison and three years of supervised release on Count Two. The

court ordered the terms to be served concurrent to each other. It

also ordered Cobb to pay a $100 special assessment and a $10,000

fine.

Cobb was the h ub of a drug conspiracy which included all of

the appellants. He established his drug trade in Waco and competed

for business with another drug dealer by the name of Keith Dancer.

Cobb and Dancer were the “two top-notch drug dealers” in Waco.

Misher sold cocaine for Cobb and was present three or four

times when Cobb sold cocaine to others. In fact, Misher and Cobb

sold cocaine as a team. At one point in time, Cobb gave Misher a

Cadillac.4

Levi and Cobb also dealt cocaine together. Cobb sold cocaine

in the presence of Levi; Levi received cocaine from Cobb; Cobb

taught a witness how to manufacture crack cocaine in Levi’s

kitchen; Levi went so far as to tell a witness that he and Cobb had

a bunch of crack houses in Waco.

Heslip sold cocaine as well. He was also associated with

Cobb, both directly and indirectly. Indirectly, Heslip worked for

Cobb. This is evidenced by the fact that Heslip was driving a car

from which Misher sold three ounces of cocaine and was fully aware

of this transaction. Directly, his relationship went beyond drug

trafficking. Heslip was Cobb’s half-brother.

II. Discussion

A. Sufficiency of the evidence

1. Standard of review

A conviction must be allowed to stand if, after viewing the

evidence in the light most favorable to the prosecuti on, the

reviewing court finds that a rational trier of fact could have

found the essential elements of the crime beyond a reasonable

d oubt. J ackson v. Virginia

, 443 U.S. 307, 309; 99 S. Ct. 278

(1979).

2. Rodney Earl Heslip

Heslip challenges the sufficiency of the evidence to support

his conviction on Count One: Conspiracy to possess and distribute5

cocaine and distributing cocaine.

In order to sustain appellant’s convictions for a drug

conspiracy, the evidence must establish beyond a reasonable doubt

that: (1) there existed an agreement between two or more persons

to violate narcotics laws; (2) the appellant had knowledge of the

agreement; and (3) he voluntarily participated in it. U nite d

States v. Gonzalez

, 76 F.3d 1339, 13 46 (5th Cir. 1996). Merely

placing a defendant in a “climate of activity that reeks of

something foul” is not enough to support a conspiracy conviction.

United States v. Dean, 59 F.3d 1479, 1485 (5th Cir. 1995) ( quoting

United States v. Galvan, 693 F.2d 417, 419 (5th Cir. 1982)).

Nevertheless, a jury may infer each element of a conspiracy from

circumstantial evidence: “an agreement to violate narcotics laws

may be inferred from concert of action.” U nited States v.

Cardenas, 9 F.3d 1139, 1157 (5th Cir. 1993), cert. denied, 114

S.Ct. 2150 (1994). In fact, a defendant need only have a minor

role in the conspiracy once it is shown that he voluntarily agreed

to participate. U nited States v. Castillo

, 77 F.3d 1480, 1493 (5th

Cir. 1996), c ert. denied,

___ S.Ct.

___, 1996 WL 44262 9. His

presence and association with other members of a conspiracy, when

supported by other evidence, may be used to support the finding of

a con spiracy. U nited States v. Casilla

, 20 F.3d 600, 603 (5th

Cir.), cert. denied

, 115 S.Ct. 240 (1994); Cardenas

, 9 F.3d at

1157.

As mentioned abov e, the government showed that Heslip sold

cocaine. (13 R. 907). Two individuals, Luis Sais and Clemond6

Busby, testified that t hey purchased drugs from Heslip. More

specifically, Busby testified that he purchased “six or seven

rocks” from Heslip. (11 R. 533-534). Sais also bought crack

cocaine from Heslip. (12 R. 726). Furthermore, Heslip was driving

his car from which he knew Misher was selling cocaine. (13 R. 906-

907). In searching Heslip’s car, the phone number to a pager owned

by Cobb was found by the police. (10 R. 153; 14 R. 1329). Several

receipts and documents belonging to Cobb were also found in

Heslip’s possession. (11 R. 236-249). During the execution of a

search warrant at Heslip’s residence, the police found and seized

a .22 caliber Marlin rifle (11 R. 263) , cocaine-cutting

paraphernalia (11 R. 264), a shotgun (11 R. 266), and other

traditional crack-manufacturing supplies (11 R. 266-267).

As Cobb is Heslip’s half-brother, the probative value of this

evidence concerned us at first glance. However, after reviewing

the record, reading the briefs, a nd listening to appellant’s

argument, we find that the jury was presented with more than

sufficient evidence so that a rational trier of fact could have

found the essential elements of his conviction beyond a reasonable

doubt.

2. Misher, Levi, and Cobb - Conspiracy

The remaining three appellants also contend that the

evidence presented at trial was insufficient to uphol d their

conspiracy convictions. However, the record is replete with

evidence as to Misher, Levi, and Cobb’s conspiracy and distribution7

convictions. Given the standard of review as dictated above, the

case law behind conspiracy to possess and distribute and

distributing cocaine, and a thorough review of the record,

appellants’ arguments and briefs, we must uphold the lower court’s

conspiracy convictions of these three defendants as charged.

3. Levi and Cobb - Money Laundering

To obtain a conviction for money la undering, the government

must show that a defendant: (1) knowingly condu cted a financial

transaction; (2) that inv olved the proceeds of an unlawful

activity; (3) knowing that the transaction was in whole or in part

to conceal the nature, the location, the source, the ownership, or

the control of the proceeds of an unlawful activity. 18 U.S.C. §

1956(a)(1)(B)(1).

The grand jury indicted Cobb for purchasing a 1984 Jaguar in

violation of 18 U.S.C. § 1956. In support of this indictment the

government presented evidence to show that Cobb had purchased the

automobile for $14,500 in cash. (13 R. 1181). In fact, Cobb came

in to the dealership carrying the money in a small suit case. (13

R. 1181). The money which he purchased the car with consisted

mainly of small bills, including ones, fives, tens, and twenties.

(13 R. 1182). Furthermore, the name put on the car’s title was

fictitious. (13 R. 1183-1186). Although the government did not

show that the money came from drug trafficking, it did present

evidence as to Cobb’s dealings in narcotics. It also introduced

e vidence that all of these practices are common methods of8

operat ion for drug dealers. (10 R. 52-54). From this, a

reasonable ju ror could conclude that the car was bought with

proceeds from drug sales and the car was paid for in cash to

conceal the source of those funds.

Levi was also convicted of lau ndering money by purchasing a

1964 Chevrolet pick-up truck with proceeds from drug sales. He

also purchased this truck with bills of small denominations, tens

and twenties. (11 R. 378-379). Levi contends that Hicks was the

only witness who presented evidence that Levi had bought the Chevy

pick-up, and that all other evidence indicated that the car was

actually purchased by Hicks. (11 R. 377-379). Nevertheless, it is

the jury’s job to assess the credibility of the witnesses. U nited

States v. Polk, 56 F.3d 613, 620 (5th Cir . 1995). Moreover, the

truck was found in Levi’s garage during a search of his residence.

We find that a reasonable juror could find that Hicks’ testimony

and the location of the truck were sufficient evidence to determine

that the truck belonged to Levi. Similarly, the same jurors could

find that this purchase came from drug proceeds and it was paid for

in cash in order to conceal the source of those funds.

B. Procedure and Evidence

1. Misher - Combining drug conspiracy count with money laundering

count

Misher, who was only indicted under count one, conspiracy to

distribute cocaine, contends that he was prejudiced by the district

court's failure to sever the drug conspiracy count from the two9

money laundering counts. Because Misher did not move for severance

or object at trial to the joinder of the defendants, this court

must apply the plain error standard. U nited States v. Carreon

, 11

F.3d 1225, 1240 (5th Cir. 1994). Under plain error review, the

petitioner must show that: (1) error occurred; (2) the error was

clear or obvious; and (3) the error affected the petitioner's

substantial rights. U nited States v. Upton

, 91 F.3d 677, 686 (5th

Cir. 1996); United States v. Calverley

, 37 F.3d 160, 162-64 (5th

Cir. 1994)(en banc)(citin g United States v. Olano , 507 U.S. 725,

730-37 (1993)), cert. denied , 115 S.Ct. 1266 (1995). We have noted

that the Supr eme Court has added what amounts to be a fourth

factor: a reviewing court "need not exercise its discretion to

corr ect the error unless it seriously affects the fairness,

integrity, or public reputation of judicial proceedings." Upton

,

91 F.3d at 686; Jobe , 77 F.3d at 1476.

Misher claims that because much of the eviden ce introduced

would not have been admissible against him in a separate trial, he

has been deprived of a fair trial. Nevertheless, the district

court gave proper jury instructions, clearly noting that each count

was to be considered separately, that the case of each defendant

should be considered individually, and that the verdict of one

defendant does not affect the guilt of the others. (16 R. 1934).

In conspiracy cases, the general rule is that persons indicted

together should be tried together. A defendant can only obtain a

reversal for failure to sever if he can demonstrate "compelling

prejudice aga inst which the trial court was unable to afford10

protection." U

nited States v. Fields

, 72 F.3d 1200, 1215 (5th

Cir.)(quoting United States v. Pofahl

, 9 90 F.2d 1456, 1483 (5th

Cir.), cert. denied , 510 U.S. 898(1993)), cert. denied , ___ S.Ct.

___, 1996 WL 183444 (1996). Here, the cautionary instructions were

sufficient to protect the appellant from prejudice.

Misher also notes that while the verdict form did have a

separate guilty or not guilty answer blank for each of the

substantive counts, it did not contain a separate answer blank

concerning whether the conspiracy charge was proved. (2 R. 330).

While a separate blank for the conspiracy charge may have been of

some value, it is not mandated. U nited States v. Sherrod

, 964 F.2d

1501, 1514 & n.30 (5th Cir. 1992)(noting that a verdict form that

had an answer blank as to whether the conspiracy charged was proved

beyond a reasonable doubt to have existed helped to clarify jury's

role), cert. denied

, 507 U.S. 975 (1993). Therefore, the district

court did not commit plain error by joining the drug conspiracy

count with the money laundering count.

2. Cobb and Heslip - refusal to introduce affidavit and permit

cross-examination

During the trial, defense counsel for Cobb attem pted to

introduce an affidavit that was submitted in support of the search

warrants used in this case. The lower court sustained the

prosecution's objection to the relevancy of the affidavit.

Heslip's attorney attempted to cross-examine the affiant,

Detective Moore, about statements made in the affidavit. The court11

sustained the prosecution's objection to the relevancy of the

testimony. Heslip's defense counsel wished to introduce evidence

that Mo ore listed the persons he believed to be part of the

conspiracy in the affidavit, but failed to include Heslip.

Cobb and Heslip contend that t he affidavit should have been

admitted as a prior inconsistent statement, under Federal Rule of

Evidence 613(b). The government contends that the district court

did not abuse its discretion, because Moore's opinion regarding the

member of the conspiracy, as evidenced in the search warrant, has

little relevance to his opinion r egarding the members of the

conspiracy at the trial that occurred one and one-half years after

the affidavit was prepared.

As contemporaneous objections were made to these rulings, we

will reverse only if the district court abused its discretion.

United States v. Martinez

, 962 F.2d 1161, 1164 (5th Cir. 1992).

The district court acted within its discretion in concluding that

Moore's te stimony was consistent with his affidavit, and,

therefore, the affidavit would not serve to impeach his testimony.

Moore had one and one-half years to change his opinion regarding

the scope of the conspiracy. There is no evidence that anything

contained in the affidavit directly contradicted Moore's testimony.

Therefore, the district court's ruling is not grounds for reversal.

3. Cobb and Levi - Admission of testimony regarding prior bad acts

The trial court allowed Eric Anzaldua to testify that he had

sold significant quantities of marijuana to Cobb and Levi. Defense12

counsel failed to object to the testimony. Therefore, the district

court's ruling is only reviewed for plain error.

We apply a two-pronged test to determine the admissibility of

evidence under Fed. R. Evid. 404(b). First, the evidence must be

relevant to an issue other than the defendant's character. Second,

the evidence must have probative value that i s not substantially

outweighed by undue prejudice. See United States v. Beechum , 582

F.2d 898, 911 (1978)(en banc), cert. denied , 440 U.S. 920 (1979).

Evidence of other crimes is admis sible to show "proof of

motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident." Fed. R. Evid.

404(b ). A defendant places his intent in issue when he has pled

not guilty in a drug conspiracy case and, therefore, evidence of

past drug tra nsactions can be used to establish criminal intent.

United States v. Wilwright

, 56 F.3d 586, 589 (5th Cir.)(noting that

"it is settled in this Circuit that Rule 404(b) permits the

admission of other crime evidence whe n a defendant places his

intent at issue in a drug conspiracy case by pleading not guilty"),

cert. denied , 116 S.Ct. 345 (1995).

Step two of the test requires that the testimony not be unduly

prejudicial. We have held that under the Rules of Evidence, there

is a strong presumption that probative evidence should be admitted.

United States v. Leahy

, 82 F.3d 624, 637 (5th Cir. 1996)(noting

that "while some danger of prejudice is always present, exclusion

of extrinsic evidence based on its prejudicial effect ‘should occur

o nly sparingly.’") (quoting United States v. Pace

, 10 F.3d 11 06,13

1115 (5th Cir. 1993), cert. denied

, 114 S.Ct. 2180 (1994)). Given

that the district court's ruling is only reviewed for plain error,

the appellants face a difficult burden. We have held that

admission of similar evidence was not erroneous, ev en under the

abuse of discretion standard. W ilwright

, 56 F.3d 586 (holding that

evidence of defendant's participation in prior drug sales was not

unduly prejudicia l); U nited States v. Bermea

, 30 F.3d 1539, 1562

(5th Cir. 1994), cert. denied

, 115 S.Ct. 1113 (1995)( noting that

the Fifth Circuit has "frequently held in drug offense cases that

evidence of a defendant's extrinsic drug offenses is admissible").

Therefore, admission of the evidence was not reversible error.

C. Sentences

1. Standard of review

We review the dis t rict court’s application of sentencing

guideline s de novo, and review the district court’s factual

findings for clear error, giving deference to the district court’s

application of the guidelines to the facts. U nited States v. West

,

58 F.3d 133, 137 (5th Cir. 1995).

2. Cobb

Cobb’s main argumen t centers around the allegation that the

district court erred in its calculation of the amount of crack

cocaine to be used in determining Cobb’s sentence bec ause it

miscounted the quantity of drugs involved in various drug

transactions.14

The presentencing report attributed 1.325 kilograms of crack

cocaine to Cobb. 510.3 grams of this total weight were included

based on testimony given by Kenneth Cross. Cross testified that he

had sold Cobb 18 ounces of powder cocaine and that Cobb converted

one or two ounces of the powder cocaine t o crack cocaine in an

effort to test and see if the powder cocaine produced a sufficient

amount of crack c ocaine when converted. (12 R. 796-797). While

there is evidence from which the court could conclude that Cobb

eventually converted all of the powder to crack cocaine, there is

n o evidence that the conversion would produce eighteen ounces of

crack. However, even if Cobb’s contentions are correct and the

510.3 grams of crack were eliminated from the quantity which the

district court calculated his sentence, his offense level would be

unchanged. Thus, although the error was clear, it was harmless.

3. Misher, Levi, Heslip, and Cobb

All of the appellants challenge the calculation of their

sentences for various reasons. However, after reviewing the record

in accordance with the standard of review, the sentencing

guidelines, each party’s briefs and arguments, we find that all the

sentences should stand. The only argument which merited discussion

was the above argument posed by Cobb.

III. Conclusion

Based on the foregoing, we AFFIRM the convictions and

sentences of all Appellants.15

AFFIRMED.