IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-21203

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEVON TODD McCARTER,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

December 26, 2002

Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Stevon Todd McCarter appeals his conviction for conspiracy to

p ossess and possession with intent to distribute more tha n five

kilograms of cocaine. He argues that the district court abused its

discretion in refusing to sever his felon-in-possession of

ammunition charge from the drug counts, in admitting evidence of an

extraneous offense, and in not instructing the jury that, to

convict McCarter, it had to find that he knew that he was stealing

more than five kilograms of cocaine. Because we conclude that the

trial court abused its discretion in failing to sever the felon-inpossession charge from the drug counts, we vacate McCarter’s2

conviction and sentence and remand for a new trial, and need not

reach McCarter’s other objections.

I

This case involves an elaborate sting operation resulting in

the arrest of several individuals for conspiring to steal money and

cocaine from persons whom they believed to be drug couriers. There

was evidence at trial that McCarter and a co-defendant, Edward

Russell, were part of a conspiracy involving confidential informant

Phyllis Conner, who was cooperating with the DEA in an

investigation of drug traffickers. The DEA developed a plan to

determine if Russell was interested in st ealing drugs and money.

As instructed, Conner told Russell that some people she knew were

traveling from Louisiana to buy drugs. They then proceeded to plan

a robbery of the drug couriers’ money a nd the drugs they were to

purchase.

On January 7, 1999, the night of the planned sting, DEA agents

p laced an ice cooler containing six kilograms of cocaine and

$90,000 in cash inside a motel room with Conner. Conner telephoned

Russell, explaining that the drug couriers were at the motel and

that she would lure them from the r oom and leave a key under her

car so that Russell and his associates could enter the r oom and

take the cooler. Conner and Russell talked several times. During

one of their conversations, Conne r confirmed that the “money and

food,” meaning the cash and drugs, were in the motel room in an ice1 The final superseding indictment in this case named Ballard

as a defendant in this case.

3 cooler. It was also in one of these conversations that Russell

first told Connor that “Cash,” as McCarte r was called, was to be

involved in the robbery.

McCarter and Russell arrived at the scene of the crime in a

black Volvo, with McCarter at the wheel. Co-conspirators Eric

Bradley and William Ballard arrived in a maroon Camaro. Bradley

and Ballard entered the motel room and returned to the Camaro with

the cooler of cash and cocaine. As the two cars were exiting the

parking lot, agents stopped them and a rrested all four men. No

drugs or weapons were found on McCarter or in his car, but a box of

ammunition was found under the driver’s seat. Six days later,

agents executed a search warrant at a residence where McCarter

periodically stayed and found a shotgun in a closet.

On February 1, 1999, McCarter was charged along with Russell

and Bradley in a two-count indictment with conspiracy to possess

with intent to distribute in excess of five kilograms of cocaine

and with possession with intent to distribute in excess of five

kilograms of cocaine. 1 Two months later, the government obtained

a superseding indictment adding felon-in-possession of ammunition

and shotgun counts against McCarter. Shortly after, McCarter filed

a motion to sever the felon-in-possession counts. The district

court severed the shotgun count but refused to sever the ammunition2 United Sta tes v. McCarter , No. 99-20920 (5th Cir. Feb. 23,

2001) (unpublished).

3 Both McCarter and the government filed timely notices of

appeal, but after McCarter filed his brief, the government moved to

dismiss its cross-appeal.

4 Although this court’s earlier opinion suggested tha t

McCarter waived the issue of severance by n ot raising it in his

motion for new trial, that issue was not properly before the court

4 count for trial with the shotgun c ount. The government

subsequently dismissed the shotgun count.

The trial was held in July 1999. McCarter’s defense at trial

was that he believed the plan involved only the theft of money and

that there was no evidence he agreed to participate in the theft of

drugs or the possession of drugs. McCarter and Russell were

convicted on the conspiracy and coc aine possession counts, but

McCarter was acquitted on the felon-in-possession count. The

district court denied McCarter’s motion for a judgment of

acquittal, but gra nted his motion for a new trial. 2 On appeal,

this court reversed the district court’s order for a new trial and

remanded with instructions that the jury’ s verdict of guilty be

reinstated. At sentencing, McCarter received concurrent twentyyear sentences of imprisonment and a term of supervised release. 3

II

M cCarter contends that the district court abused it s

discretion in denying his motion to sever the ammunition count from

the drug counts, because knowledge of his prior felony conviction

for burglary preju diced the jury against him on the drug counts. 4at that time. In this appeal, the government does not contend that

there is any reason the issue of severance is not properly before

this court.

5 F ED

. R. C RIM . P. 14.

6 Id

.

7 United States v. Holloway

, 1 F.3d 307, 310 (5th Cir. 1993).

5 McCarter does not dispute the propriety of the counts’ initial

joinder, but rather focuses on the correctness of the court’s

refusal to separate the counts in the interest of justice. 5

The district court denied McCarter’s motion to sever because

it concluded that the ammunition count and drug counts arose from

the same transaction and therefore the government was entitled to

try them together. The court did limit the form of the evidence of

McCarter’s felony status to the reading of a stipulation to the

jury that he had been convicted of the felony offense of burglary.

The cou rt also told the jury to consider the evidence only in

regard to the felon-in-possession count.

III

Federal Rule of Criminal Procedure 14 allows “separate trials

of counts

... or

... whatever other relief justice requires” if the

court concludes that a defendant may be prejudiced by a joinder of

offenses. 6 We review the district court’s denial of a severance

for abuse of discretion, and such a decision will not be reversed

“unless there is clear prejud ice to the defendant.” 7 McCarter

urges that the district court abused its discretion in ignoring the8 United States v. Singh , 261 F.3d 530, 534 (5th Cir. 2001).

9 Holloway

, 1 F .3d at 312 (looking to whether the evidence

proffered at trial was overwhelming as to the defendant’s guilt);

see also United States v. Nguyen , 88 F.3d 812, 816-17 (9th Cir.

1996) (reasoning that “the strength of the evidence a gainst the

defendant and the nature and efficacy of the methods employed to

guard against prejudice” should be evaluated in determining whether

6 danger that the jury would infer guilt on the drug counts because

of his prior felony conviction, and that the district court’s

decision was partic ularly devastating to his defense that he did

not know the cooler contained drugs.

We have long recognized the obvious dangers inherent in trying

a felon-in-possession count together with other charges, as it acts

as a conduit through which the government may introduce otherwise

inadmissible evidence of the defendant’s prior convictions, thereby

potentially tainting the reliability of the verdict rendered by the

jury on the other counts. For this reason, “‘evidence of a prior

conviction has long been the subject of careful scrutiny and use at

trial’ because of the danger that the jury might convict, not based

on the evidence, but because it feels that the defendant is a ‘bad

person.’” 8 Although the potential for prejudice resulting from

introduction of prior crimes evidence in connection with a felonin-possession charge may be lessened by limiting inst ructions, a

proper inquiry into the propriety of trying the felon count

together with the other charges requires examin ing not only the

efficacy of the limiting measures taken by the trial court, but

also the strength of the evid ence of the defendant’s guilt. 9 Ina district court abused its discretion in denying a motion to sever

a felon-in-possession count).

10 See, e.g.

, Holloway

, 1 F.3d at 310; United States v. Jones

, 16 F.3d 487, 492 (2d Cir. 1994).

11 Daniels

, 770 F.2d at 1118; see also Jones

, 16 F.3d at 493

(reasoning that although “jurors are presumed to follow

instructions from the court,” it “would be quixotic to expect the

jurors to perform such mental acrobatics” in cases in which felonin-possession counts are joined with other counts).

7 certain cases, the translucency of the government’s ill motive for

adding the felon- in-possession count is also a factor in

determining whether severance was warranted. 10

Here, the district court provided the following limiting

instruction in its jury charge:

Defendant Stevon Todd M cCarter and the government have

stipulated that he was previously convicted of a

burglary, a felony. This conviction was brought to your

attention only becau se it is an element of the offense

charged in Count Three. The fact that Mr. McCarter was

previously convict ed of a felony does not mean that he

committed any offense for which he is on trial today, and

you must not use this prior conviction as proof of the

offenses charged in the indictment except with respect to

the second element of Count Three.

Although jur ies are generally presumed to have followed jury

instructions, we recognize that, oftentimes, “[t]o tell a jury to

ignore the defendant’s prior convictions in determining whether he

... committed the offense being tried is to ask human beings to act

with a measure of dispassion and exactitude well beyond mortal

capabilities.” 11 Nevertheless, in certain circumstances we have12 See, e.g.

, United States v. Bullock

, 71 F.3d 171, 175 (5th

Cir. 1995) (“Bullock cannot show that he was prejudiced by the

failure to sever the counts, as the court admonished the jury that

it could consider Bullock's prior felon y conviction only in

connection with the firearm count. Any possible prejudice could be

cured with proper instructions and jur ies are presumed to follow

their instructions. Therefore, the jury instructions were

sufficient to cure any possible prejudice.”).

13 United States v. McCarter

, No. 99-20920 (5th Cir. Feb. 23,

2001) (unpublished).

8 found similar limiting instructions to be sufficient to cure

prejudice. 12

McCarter urges that, given the scant evidence of his knowledge

that cocaine was in the cooler, the jurors likely disregarded the

instruction and convicted him on account of their knowledge of his

prior conviction. The evidence on the record is legally sufficient

to support the jury’s finding that McCarter knew the contents of

the cooler, 13 but it is thin. The government introduced no

testimony showing that McCarter had be en informed by any person

that the robbery might involve drugs as well as money. Rather, the

evidence of his knowledge was circumstantial, centering on the fact

that McCarter communicated with Russell several times on the day of

t he robbery, that McCarter was with Russell during some of

Russell’s phone conversations with Conner on the day of the

robbery, and Conner’s testimony that McCarter was the “engineer” of

the robbery and was someone with “experience” conducting this type

of crime. Although it was not unreasonable for the jury to infer

that, as one of the planners, McCarter knew that the robbery could14 Holloway

, 1 F.3d at 312 ; s ee also United States v. Singh

,

261 F.3d 530 (5th Cir. 2001). In S ingh

, the defendant was charged

with harboring illegal aliens for comme rcial advantage and with

being a felon in possession of a firearm; he was acquitted on the

firearm count and convicted of harboring. Id. at 533. During the

course of the trial, the jury learned of Singh’s prior felony

co nviction, for unlawful possession of food stamps. On appeal,

Singh argued that the counts were unrelated and therefore

improperly joined, and that this improper joi nder harmed him at

trial because evidence of his past conviction and evidence of his

involvement with firearms unduly prejudiced the ju ry against him

and resulted in his conviction for harboring. Id.

In determining whether the trial court abused its discretion

in denying Singh’s mo tion for severance, we reasoned that the

evidence could have prejudiced the jury on an important issue:

whether Singh knew that the immigrants he had hired were working

illegally. Id. at 534. Singh denied such knowledge, but the fact

of his prior conviction, coupled with his participation in firearm

transactions and practice of carrying firearm s

, “was arguably

determinative as to whether the jury would believe him on this

crucial issue of fact.” I d. Because of the high potential that

this evidence corrupted the jury’s verdict, we found the district

court’s denial of the motion for severance an abuse of discretion.

Id.

9 involve drugs, “we cannot say that the evidence against [McCarter]

was so overwhelming that the jury was not unfairly influenced by

the fact that they were judging a felon.” 14

McCarter also urges that the government’s motive in adding the

felon-in-possession count was improper. He contends that although

the government kn ew as of his arrest on January 7, 1999, that he

was a convicted felon and that ammunition was found in the vehicle,

and knew six days later that a shotgun was found in a residence

where he period ically stayed, the initial indictment returned on

February 1 alleged only conspiracy to possess and possession with

intent to distribute over five kilograms of cocaine. On March 5,10

1999, McCarter filed a motion in limine seeking to exclude the

prior felony conviction as well as the ammunition and shotgun

evidence, and filed his brief in support on March 15, urging in it

that the def endant’s prior burglary conviction did “not involve

dishonesty or false statement and [was] too remote” in time to be

admissible. On March 31, the government filed its response to the

motion, opposing McCarter’s request to excl ude his prior

convictions and the ammunition and shotgun evidence. Only a day

later, on April 1, 1999, the government obtained a superseding

indictment adding felon-in-possession of ammunition and shotgun

counts.

McCarter alleges that t his timeline casts doubt on the

legitimacy of the government’s impetus in adding th e felon-inpossession counts, because they are absent from the initial

indictment and made their appearance shortly after McCarter sought

to exclude the prior conv iction and shotgun and ammunition

evidence. He further asserts that the government’s dismissal of

the shotgun count after the district court severed it, and the

weakness of the evidence on the ammunition count, bolsters his

contention that the prosecuti on was attempting to shore its thin

evidence that McCarter knew drugs were to be in the cooler.

The circumstances surrounding the government’s addition of the

felon-in-possession counts, coupled with th e lack of evidence

supporting the ammunition count, as evidenced by the not guilty

verdict on that count, leads us to “[t]he inelu ctable conclusion15 Jones , 16 F.3d at 492.

16 1 F.3d at 310.

17 Jones , 16 F.3d at 492.

11 ... that the government added the count[s] solely to buttress its

case on the other counts.” 1 5 In U nited States v. Holloway

, we

criticized the government’s addition of a felon-in-possession count

to the other counts charged, explaining that we could discern no

basis for the prosecutor to “have included this weapons charge in

the indictment in the first place unless he was seeking to get

before the jury evidence that likely would be otherwise

inadmissible, i.e

., that Holloway was a convicted felon and that he

had a weapon on his person when arrested.” 16 Similarly, the Second

Circuit reasoned in United States v. Jones

,

[t]he government’s indictment tactics belie its present

claim that the felon in possession count was not unfairly

prejudicial. It added the felon in possession charge

only after the first trial o n the bank robbery charges

ended with a hung jury, split ten to two for acquittal.

No new facts supported the belat ed addition of the

charge, and even if the g overnment got a conviction on

the new char ge, it could not secure a longer sentence

.... 17

The D.C. Circuit has also taken issue with the government’s

addition of felon-in-possession counts to strengt hen its case on

other charges:

[A] side consequence of the [felon-in-possession] law has

been to provide federal prosecutors with a powerful tool

for circumventing the traditional rule against

introduction of other crimes evidence. Whenever an exfelon is ch arged with committing a crime involving the18 United States v. Daniels , 770 F.2d 1111, 1118 (D.C. Cir.

1985).

12 use of a gun, prosecutors may inform the jury of the

defendants' prior convictions merely by taking the time

to include a charge of firearms possession.

The results in this case are instructive. Daniels

was sentenced to concurrent prison terms of ten years for

armed bank robbery, four years for carrying an unlicensed

pistol, and two years for possession of a firearm after

a felony conviction. The conviction for possession is

thus virtually certain to have no effect on the time

served by the defendant; all the government obtained by

adding the possession count was the ability to tell the

jury that Daniels ha d previously been convicted of a

felony.

We do not believe Congress had such a tactic in mind

when it criminalized possession of firearms by ex-felons,

and we do not believe the federal judiciary should

encourage or countenance this use of the law. 18

We find that the only reasonable explanation for the

government’s late addition of the felon-in-possession counts

against McCarter was to strengthen its case on the drug counts by

informing the jury of his prior felony conviction. At the hearings

on the motion to sever, the government’s main argument to the trial

judge, who voiced concern over the prejudice of a felony

conviction, was that the ammunition was found in the arrest at the

robbery site and that the government was entitled to try all these

facts together. McCarter’s counsel made two telling responses.

First, that he had no objection to the submission of the ammunition

evidence at trial

— the felony conviction was the problem. Second,

the court was severing the shotgun count, so the two “gun” counts

could be tried together in less than a day. That is, the

government would lose none of the evidence that was associated with13

the robbery and suffer no inconvenience because a separate trial of

the shotgun case was required in any event. The district court

took the position that the government was entitled to try all the

same transactions in one trial.

Of course the government never procee ded with the severed

shotgun count

— the ammunition count brought the felony conviction

before the jury. This exchange only makes plainer the government’s

effort to use the felony conviction. That was not its right. And

h ere, when the evidence was so thin that the trial judge late r

granted a new trial, its purpose and effect was prejudice.

IV

Taken togethe r, the weakness of the evidence of McCarter’s

knowledge of the contents of the cooler and the dubious

circumstances surrounding the addition of the felon-in-possession

charges require that we find the district court abused its

discretion in refusing to sever the counts. Accordingly, we vacate

McCarter’s conviction and remand for a new trial.

VACATED and REMANDED.