* District Judge of the Northern District of Texas, sitting

by designation.

 

1 United States v. Beechum, 582 F.2d 898 (5th Cir. 1978)

(en banc), cert. denied, 440 U.S. 920 (1979).

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-3235

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERALD ELWOOD, a/k/a Nap,

WILLIAM BARNES, JR. and

ERNEST MARRERO,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Louisiana

August 23, 1993

Before POLITZ, Chief Judge, DUHÉ, Circuit Judge, and MAHON,*

District Judge.

POLITZ, Chief Judge:

On this appeal we consider the Beechum1 findings made on

remand by the trial court, together with a sentencing issue raised

by Gerald Elwood which was not reached on the prior appeal because

of the remand. The operative facts are detailed in our prior

opinion, 993 F.2d 1146 (5th Cir. 1993). For present purposes we
 

2 Rule 404(b) of the Federal Rules of Evidence 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 motive,

opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident, provided

that upon request by the accused, the prosecution in a

criminal case shall provide reasonable notice in advance

of trial . . . of the general nature of any such evidence

it intends to introduce at trial.

 

3 The evidence included several weapons, weapon boxes,

ammunition, a bullet-proof vest, a glass tube and spoon coated with

2

note merely that Elwood and three other males departed his hotel

room in LaPlace, Louisiana with over 2000 grams of cocaine. Two

carried the cocaine in a car while Elwood and another, both

carrying firearms, followed in an armor-plated pickup truck. When

police stopped the car for a traffic violation, Elwood pulled the

truck directly behind the police vehicle. All four males were

arrested and Elwood was ultimately convicted of possession of

cocaine with intent to distribute, conspiracy to possess with

intent to distribute, and using and carrying a firearm in relation

to the drug trafficking offenses. We now affirm Elwood's

convictions but for the reasons assigned vacate his sentences and

remand for resentencing.

I. The 404(b) Evidence

Prior to trial the government noticed its intent to introduce

certain 404(b)2 evidence against Elwood to prove his intent to

participate in the narcotics offenses and to use firearms in

connection therewith.3 Elwood moved in limine, seeking the
cocaine residue, and some plastic bags, all seized from Elwood's

home about a year before this offense (hereinafter the "Rackert

Street evidence").

 

4 700 F.2d 205 (5th Cir. 1983).

 

5 933 F.2d 1261 (5th Cir. 1991).

 

6 We instructed the district court as follows:

If the court holds that the evidence meets [the] first

Beechum step as to relevancy, it then must decide whether

the evidence's probative value was substantially

outweighed by its prejudicial effect. If the court

determines that the probative value was substantially

outweighed, then the court must decide whether there is

a reasonable possibility that the evidence affected the

outcome of the case. In making this determination, the

court should consider the effect of the jury instruction

and the government's closing argument. If the court

finds that the evidence improperly affected the outcome

of the case, the court must order a new trial. If the

court finds that the evidence did not improperly affect

the outcome of the case, "[t]he trial judge shall certify

to us his findings and conclusions. The record shall be

supplemented by the on-the-record determination herein

prescribed, and by any materials submitted by the parties

to the district court. Following such filing, the clerk

will set a schedule for supplementary briefing and the

matter will be returned to this panel for disposition."

993 F.2d at 1153-54 (quoting Anderson, 933 F.2d at 1277; further

citations omitted).

3

exclusion of the evidence and asking the court to make record

findings regarding the probative value/prejudicial effect of the

proposed evidence as required by United States v. Robinson.4 The

district court admitted the evidence, but the Robinson findings

were not made on the record. Tracking United States v. Anderson,

5

we remanded for Beechum/Robinson findings.6

In accordance with our instructions, the district court

received additional briefing and conducted a hearing on both the

admissibility of the evidence and whether any error in its
 

7 From its chambers file on this case, the district court

provided an internal bench memorandum which contained its findings

at a sidebar conference which was not transcribed.

 

8 Anderson.

 

9 582 F.2d at 911.

4

admission improperly affected the outcome of the trial.7 The court

concluded that the evidence was admissible under Rule 404(b) and,

alternatively, given the substantial evidence of Elwood's guilt,

any error from the admission of the evidence was harmless.

We apply a highly deferential standard to a trial court's

evidentiary rulings, reversing only for an abuse of discretion.8

Beechum details this circuit's procedure for admitting 404(b)

evidence: "First, it must be determined that the extrinsic

evidence is relevant to an issue other than the defendant's

character. Second, the evidence must possess probative value that

is not substantially outweighed by its undue prejudice and must

meet the other requirements of Rule 403."9

Relevance

Given that his counsel readily conceded during opening

statement that Elwood possessed a firearm, the only question was

his intent to participate in the cocaine distribution conspiracy.

The district court found the 404(b) evidence probative of this

fact. "In determining the probative value of extrinsic evidence,

the court should consider the overall similarity between the

extrinsic and charged offenses, because 'the probative value of the

extrinsic evidence correlates positively with its likeness to the
 

10 United States v. Moye, 951 F.2d 59, 62 (5th Cir. 1992)

(quoting Beechum, 582 F.2d at 915).

 

11 Moye; Beechum.

5

offense charged.'"10 The court a` quo deemed important the fact

that the Rackert Street evidence consisted of several weapons and

ammunition in close proximity to evidence indicative of drug

distribution, specifically, a spoon with cocaine residue, a

cellular phone, plastic baggies, and a scale. In this respect, the

Rackert Street evidence was similar to the evidence supportive of

the charged offenses SQ a scale, plastic baggies, and a cellular

phone were found either at the arrest scene or in the hotel room;

these items and the drugs were in relative close proximity to the

firearms in Elwood's truck. This evidence tends to negate Elwood's

assertion that he knew nothing of the drugs and that his possession

of a firearm was in no way related to the possession of the two

kilos of cocaine in the car he was following closely. We find no

error in the district court's determination that this evidence had

some relevance to the issue of intent.

403 Balance - Probative Value/Prejudice

We also give great deference to the district court's

determination of the second Beechum inquiry SQ whether the

probative value of the evidence is outweighed by the risk of unfair

prejudice.11 In addition to its probative value, the Rackert Street

evidence had obvious prejudicial effect. The sheer quantity of

weapons and ammunition found at the Rackert Street residence

suggested a disturbing level of potential violence. The indepen-
 

12 The court cautioned:

Ladies, this officer is going to testify and SQ from

evidence that is going to be presented, so you may hear

evidence of acts of the defendant, Gerald Elwood, which

may be similar to those charged in the indictment in this

case of which were committed on another occasion. You

must not consider any of this evidence in deciding if the

defendant, Gerald Elwood, committed the acts charged in

this indictment; however, you may consider this evidence

for other very limited purposes. You may consider

evidence of the similar act allegedly committed on

another occasion to determine whether the defendant,

Gerald Elwood, had the state of mind or intent necessary

to commit the crime charged in this indictment. This is

the limited purpose for which any evidence of other

similar acts may be considered. Further, this evidence

may be considered by you only in relation to the charges

against Gerald Elwood. You may not consider it when

weighing the evidence regarding charges against William

Barnes and Ernest Marrero.

6

dent prejudicial effect, however, was diminished by, among other

things, Elwood's admissions on the stand that he owned several

weapons, including ".357s, nine millimeters, . . . an AK-47," and

a "riot shotgun." In addition, there was significant evidence

connecting Elwood to the charged offenses. Finally, the district

court properly instructed the jury on three occasions of the

limitations in the consideration of the Rackert Street evidence.12

In light of the other evidence and the limiting instructions, we

find no 403 breach in the admission of the 404(b) evidence. 

II. Assessment of Adjustment for Leadership Role

Elwood received a two level upward adjustment of the offense

level for his leadership role in the criminal activity. He timely

objected to the presentence report, contending that there was no

evidence at trial supporting the adjustment and that "[w]hile the
 

13 United States v. Alfaro, 919 F.2d 962 (5th Cir. 1990).

 

14 Alfaro, 919 F.2d at 965.

 

15 Id. at 966.

7

government will have the opportunity at sentencing to establish

that Elwood was an organizer, leader . . . of the alleged criminal

activity, its mere allegation that he played such a role is not

sufficient to warrant the two level adjustment." At sentencing,

the government presented no additional evidence in support of the

adjustment; the record contains only the probation officer's

amendment to the PSR stating: "In discussing the relative roles of

the defendants in this case with the government and the DEA, it was

determined that Elwood should receive a role adjustment pursuant to

Section 3B1.1(c)." Based on the PSR the trial court sentenced

Elwood to 121 months on counts 1 and 2, and a consecutive 60-month

sentence on the gun count. Elwood contends that this adjustment

was improper; the government, on the other hand, contends that the

district court's sentencing was proper because it was based upon a

reliable source SQ the presentence report.13

Confronted with an objection to the findings in the PSR, "the

party seeking an adjustment in the sentence level must establish

the factual predicate justifying the adjustment" by a preponderance

of relevant and sufficiently reliable evidence.14 In this case, the

party seeking the adjustment is the government. "[A] presentence report generally bears sufficient indicia of reliability to

be considered as evidence by the trial judge in making the factual

determinations required by the guidelines."15 In this case,
 

16 962 F.2d 409 (5th Cir. 1992).

 

17 962 F.2d at 415 (citing United States v. Johnson, 823 F.2d

840, 842 (5th Cir. 1987)).

 

18 We note that in United States v. Williams, 117 L.Ed.2d 341

(1992), the Supreme Court instructed that "in determining whether

a remand is required under [18 U.S.C.] § 3742(f)(1), a court of

appeals must decide whether the district court would have imposed

the same sentence had it not relied upon the invalid factor or

factors." Id. at 355. The government points to the following

trial evidence to support the adjustment: Room 102 was Elwood's

room; he was the oldest defendant; he displayed intelligence,

8

however, the PSR lent no support for the essential factual

determinations about Elwood's alleged leadership role; the PSR

merely gave a recitation of the conclusions of the DEA and the

prosecutor.

We recently addressed a similar problem in United States v.

Patterson16 in which the government attempted to support an offense

level increase for the defendant's role as a manager or supervisor

of a conspiracy based upon the following statement in the PSR:

"Information from [the AUSA] indicates that the defendant and codefendant . . . managed and supervised other persons who worked for

them as they carried out their illegal activities." We vacated

Patterson's sentence finding that "the unsworn assertions of the

Government's attorney do not provide, by themselves, a sufficiently

reliable basis on which to sentence the defendant."17 Bald,

conclusionary statements do not acquire the patina of reliability

by mere inclusion in the PSR. As in Patterson, we must vacate and

remand for a factual determination whether Elwood in fact had the

requisite leadership role in the offense to warrant the

adjustment.18
articulateness, and savvy on the witness stand; Dennison told

police when he was stopped that he had been visiting his Uncle

Gerald; and Elwood admitted that the cash found in the hotel room

was his. Elwood correctly points out that in passing sentence the

judge accepted the PSR and did not suggest that he relied on a

recollection of the trial evidence. After reviewing the entire,

albeit cold, trial record we simply cannot determine whether the

assessment for a leadership role would have been imposed by the

district court if it had not erroneously relied upon the statement

in the PSR. The trial evidence relied upon by the government does

not compel the conclusion that the leadership role adjustment was

warranted.

9

For the foregoing reasons, we AFFIRM the convictions of Gerald

Elwood but VACATE his sentences and REMAND for resentencing.