PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5532

ANTHONY JACQUEZ LAMARR,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5533

GUY A. DILLARD,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 94-5562

MAURICE L. MALLORY, a/k/a Darrell

Lee Lawson,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Virginia, at Danville.

Jackson L. Kiser, Chief District Judge.

(CA-93-173-D)

Argued: December 8, 1995

Decided: February 15, 1996
Before ERVIN and MOTZ, Circuit Judges, and WILLIAMS,

Senior United States District Judge for the Eastern District of

Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Ervin wrote the opinion, in

which Judge Motz and Senior Judge Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: George David Nixon, KING, FULGHUM, SNEAD,

NIXON & GRIMES, P.C., Roanoke, Virginia, for Appellant Lamarr;

Robert F. Rider, RIDER, THOMAS, CLEAVELAND, FERRIS &

EAKIN, Roanoke, Virginia, for Appellant Mallory; Perry Henry Harrold, Martinsville, Virginia, for Appellant Dillard. Kenneth C. Bartholomew, Third Year Law Student, University of Virginia School of

Law, Charlottesville, Virginia, for Appellee. ON BRIEF: Robert P.

Crouch, Jr., United States Attorney, Joseph W.H. Mott, Assistant

United States Attorney, Roanoke, Virginia, for Appellee.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Anthony Jacquez Lamarr, Guy Anthony Dillard, and Maurice L.

Mallory were convicted of several offenses including and related to

conspiracy to distribute cocaine base ("crack"). They argue on appeal

that the district court should have conducted separate trials for Lamarr

and Mallory, that the trial judge attributed too much cocaine to Mallory under the Sentencing Guidelines, that there was insufficient evidence to support their convictions, and that Dillard was entrapped by

police. We find no merit in those arguments. The appellants also contend that the government improperly questioned witnesses about the

appellants' prior bad acts. We agree that prosecutors sought to elicit

inadmissible testimony, and we disapprove strongly of their efforts,

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but we believe that the objectionable questions do not require reversal

in this case. Accordingly, we affirm.

I.

On August 11, 1993, police in Roanoke, Virginia, arrested Lamarr,

Mallory, and other co-conspirators--including alleged conspiracy

leader Joseph Manns--in response to an anonymous tip that they

were trafficking in illegal drugs. The police found in the arrestees'

hotel rooms 678.3 grams of cocaine, a Desert Eagle .357 semiautomatic handgun, and over $8000 in cash. They soon learned that

Mallory was a fugitive from justice.

Manns agreed to cooperate. He contacted Dillard to arrange a sale.

Police arrested Dillard when he came to Manns's hotel room to buy

the cocaine. Dillard was carrying 5.72 grams of crack, a Colt .38

revolver, and $1,389 in cash; police found another .38 revolver in his

car.

Manns testified at trial that in the fall of 1992 he began travelling

from New York to Virginia to sell drugs. He said that Lamarr and

Mallory joined his operation in May 1993. Lamarr and Mallory contested Manns's account by presenting evidence that they did not go

to Virginia until late July, 1993, on a vacation visit to Manns's family.

II.

A.

The appellants contend that prosecutors repeatedly and improperly

questioned witnesses about the appellants' prior bad acts, in violation

of Fed. R. Evid. 404(b). We addressed Rule 404(b) in United States

v. Rawle:

Fed.R.Evid. 404(b) provides that "[e]vidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." . . . Under Rule 404(b), however, prior bad

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acts are admissible if they are (1) relevant to an issue other

than character, (2) necessary, and (3) reliable.

845 F.2d 1244, 1246-47 (4th Cir. 1988). Issues other than character

may include, the appellants note, "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

Appellants argue also that unfair prejudice outweighed the probative

value of each question they contest, in violation of Fed. R. Evid. 403.

We agree that the prosecutors did attempt to introduce improper

evidence. Such cross-examination tactics are highly inappropriate,

unnecessary, and unfair. We are at a loss to understand why prosecutors are willing to jeopardize criminal convictions by failing to

remember and apply Justice Sutherland's classic admonition:

The United States Attorney is the representative not of an

ordinary party to a controversy, but of a sovereignty whose

obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a

criminal prosecution is not that it shall win a case, but that

justice shall be done. As such, he is in a peculiar and very

definite sense the servant of the law, the twofold aim of

which is that guilt shall not escape or innocence suffer. He

may prosecute with earnestness and vigor--indeed, he

should do so. But, while he may strike hard blows, he is not

at liberty to strike foul ones. It is as much his duty to refrain

from improper methods . . . as it is to use every legitimate

means to bring about a just [conviction].

Berger v. United States, 295 U.S. 78, 88 (1935). In this case, however, unlike Berger, the particularly harmful effect of the government's improper questions was eliminated by the witnesses' answers

or was largely remedied by the district court's corrective measures,

and the evidence against the appellants was very strong without the

prosecution's objectionable tactics. For these reasons, the questions

present no ground for reversal. In another case, when improper prosecution questions result in more prejudicial answers, evoke less effective corrective measures by the trial court, or are accompanied by less

powerful prosecution evidence, such question might require reversal.

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1.

In cross-examining Mallory's mother about her son's relationship

with Lamarr, the prosecutor asked if Mallory and Lamarr had been

"involved in drugs together." The appellants objected, and the court

sustained the objection before Ms. Mallory could answer. The district

court instructed the jury to disregard the question, but denied appellants' motion for a mistrial. A mistrial should be granted only if a

question so prejudicially affects a defendant's rights that it denies him

a fair trial. We can reverse the denial of the mistrial motion only if

the district court abused its discretion by finding that the question did

not deny the appellants a fair trial. United States v. Castner, 50 F.3d

1267, 1272 (4th Cir. 1995).

Appellants argue that the question's "only tendency was to plant a

negative image of Mallory and his associates in the minds of the

jurors." We agree. But the district court did not abuse its discretion

by concluding that the appellants' sustained objection to the question,

the remedial instruction to the jury, and the witness's failure to

answer prevented the question from denying the appellants a fair trial.

2.

The prosecutor asked another witness--Mallory's friend Benjamin

Greaves--whether Mallory had been involved in drugs in late 1992.

Mallory's counsel objected initially, but withdrew the objection

before Greaves's answer. Greaves answered in the negative.

When an item of evidence is entered without objection, the standard of review is very deferential. We will reverse only if the district

court plainly erred by failing to disallow the evidence sua sponte, and

if failing to reverse would cause a miscarriage of justice. See United

States v. Mitchell, 1 F.3d 235, 239-40 (4th Cir. 1993). Assuming

arguendo that the question was improper, the prejudice that it caused

was not sufficiently severe. The witness's answer was favorable to

Mallory, so any prejudice must have arisen from the question itself.

A prosecutor's mere suggestion of misconduct can be damaging to a

defendant, even if the witness answers negatively. See Berger, 295

U.S. at 88. But the record contains enough other evidence of Mal-

 5
lory's involvement in drugs that our failure to reverse on this ground

will not cause a miscarriage of justice.

3.

The appellants contest another question asked of Greaves. After

Greaves testified that Mallory had travelled to Boston in late 1992,

the prosecutor asked, "he was involved with drugs at that time, wasn't

he?" Again, Greaves answered negatively and Mallory's attorney

refrained from objecting. Lamarr's attorney objected, however,

because of the close relationship the prosecution had alleged between

Lamarr and Mallory. He argued that the indictments did not include

any events in Boston. The district court overruled the objection, reasoning that the conspiracy allegedly began in 1992.

Lamarr and Mallory contend that the evidence was irrelevant. They

point out that the indictment alleged no events in Boston and that the

government's lead witness indicated that they did not begin travelling

with him until May 1993. The government responds that the indictment encompassed events in Virginia, New York, and"elsewhere,"1

and that an affirmative answer by Greaves would have been probative

of Lamarr and Mallory's planning of the conspiracy. Because only

Lamarr objected to the question, we apply different standards to the

two appellants. Regarding Lamarr's claim, we review for abuse of

discretion, and reverse only if the error was not harmless. United

States v. Heater, 63 F.3d 311, 320, 325 (4th Cir. 1995); see also

United States v. Davis, 657 F.2d 637, 640 (4th Cir. 1981) ("The test

for harmlessness for nonconstitutional error is whether it is probable

that the error could have affected the verdict reached by the particular

jury in the particular circumstances of the trial."). Regarding Mallory's claim, we review for plain error, and reverse only if affirming

would cause a miscarriage of justice. See Mitchell, 1 F.3d at 239-40.

We agree that the question's relationship to the charged conspiracy

was tenuous. Had Greaves answered in the affirmative, the question's

primary effect would have been to impermissibly paint Mallory, and

Lamarr by association, as drug traffickers. Thus it was unnecessary

_________________________________________________________________

1 "[E]lsewhere" was never explained, and there was no evidence of any

conspiratorial activity in Boston at any time.

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under Rule 404(b) and unfairly prejudicial under Rule 403. Because

Greaves answered in the negative, however, and because there was

substantial proper evidence of the appellants' guilt, we find no reasonable likelihood that the question affected the jury's verdict.

4.

After Greaves testified that he knew Mallory was a fugitive, the

prosecutor asked him if he knew the nature of the charge from which

Mallory was fleeing. Mallory's attorney objected before Greaves

could answer, and the district court sustained the objection. The

appellants argue that the question was unreliable because

(1) there was no attempt to prove that the underlying charge

was a drug charge, and (2) the warrant on the underlying

charge provides a probable cause standard of proof only,

which is not sufficiently reliable to allow the evidence to

come in at trial.

This argument is meritless. The question itself was an attempt to

show that the charge was a drug charge, and there is no requirement

that the government prove by extrinsic evidence what it fails to elicit

in cross-examination. Michelson v. United States , 335 U.S. 469, 481

& n.18 (1948) (allowing questions for which prosecutor has factual

basis even if factual basis itself is inadmissible). Moreover, a conviction is not a prerequisite to cross-examination about a prior bad act.

Id. at 481. Most importantly, the district court sustained the objection

and the witness did not answer, so the appellants' only remedy below

would have been a mistrial. They did not move for a mistrial, so to

reverse this court would have to find that the mere asking of the question denied the appellants their right to a fair trial, and that the district

court plainly erred by failing to make such a finding sua sponte.

Castner, 50 F.3d at 1272. If there was error it was not plain, and if

the question caused any prejudice it was not of sufficient magnitude.

5.

Dillard contests the trial court's ruling that, if he took the stand, the

government would be permitted to cross-examine him about his 1988

 7
convictions for possession and sale of cocaine and marijuana.

Because of that ruling, Dillard contends, he forfeited his constitutional right to testify.

The district court based its decision on Fed. R. Evid. 609, which

approves, for the purpose of attacking a witness's credibility, admission of prior convictions of crimes punishable by imprisonment for

more than a year if "the probative value of admitting th[e] evidence

outweighs its prejudicial effect." Dillard does not base his argument

on Rule 609, perhaps because he is aware of the Supreme Court's

holding in Luce v. United States, which apparently forecloses the

issue:

a defendant who does not testify at trial may not challenge

on appeal an in limine ruling respecting admission of a prior

conviction for purposes of impeachment under Rule 609(a)

of the Federal Rules of Evidence.

469 U.S. 38, 43 (1984) (Brennan, J., concurring). Dillard contends

instead that evidence of the prior convictions should have been barred

under Rule 404(b) because it was unnecessary and relevant to no

issue other than character.2

Regarding relevance, Dillard asserts that the "convictions were

clearly outside the conspiracy at issue in the trial and therefore clearly

had no tendency whatsoever to prove Dillard's guilt in the case at

bar." Regarding necessity, he states:

because the evidence was clearly not necessary to prove the

conspiracy, or any other element of the case, it cannot be

said that the evidence of Dillard's prior convictions was

necessary.

Both assertions are true, but irrelevant. Admissibility under Rule 609

is based not on probity of guilt, but on relevance to a witness's credibility. Credibility is an issue other than character, so evidence neces-

_________________________________________________________________

2 We assume without deciding that Luce does not preclude Dillard's

404(b) argument.

 8
sary to prove lack of credibility satisfies Rule 404(b). Dillard fails to

argue that his prior convictions were irrelevant to his credibility, so

his appeal of this issue is meritless.

6.

Appellants assert that, "where the government wishes to impeach

a witness using specific instances of misconduct[by the defendant],

it must have some good faith factual basis for the incidents inquired

about." The prosecutors violated that requirement, the appellants contend, because they were not prepared to impeach negative responses

to their questions about such instances. This court reviews a trial

court's evidentiary rulings for abuse of discretion. Heater, 63 F.3d at

320.

Appellants misconstrue the standard. They are correct that a crossexaminer must have a "good faith factual basis" for questions about

a defendant's prior acts. As we noted above, however, there is no

requirement that an attorney impeach negative answers. See supra

part II.A.4 (citing Michelson, 335 U.S. at 481 & n.18). Appellants do

not argue on appeal that prosecutors lacked a good-faith basis for the

questions. Nor is there any indication that they presented that argument below, when the district court could have conducted a factual

inquiry into the basis for the questions. Thus they have failed to show

abuse of discretion.

B.

Lamarr and Mallory contend that their trial should have been severed because each wanted to call the other as a witness regarding their

reasons for being in Virginia. A district court's denial of a motion to

sever may be reversed only for clear abuse of discretion. United

States v. Rhodes, 32 F.3d 867, 872 (4th Cir. 1994), cert. denied, 115

S. Ct. 1130 (1995).

In United States v. Parodi, this court set clear parameters to govern

severance for the purpose of obtaining testimony from co-defendants:

[T]he moving defendant must establish (1) a bona fide need

for the testimony of his co-defendant, (2) the likelihood that

 9
the co-defendant would testify at a second trial and waive

his Fifth Amendment privilege, (3) the substance of his codefendant's testimony, and (4) the exculpatory nature and

effect of such testimony.

703 F.2d 768, 779 (4th Cir. 1983) (citations omitted). These appellants fail to establish any of Parodi's requirements. They indicate that

the testimony would have concerned their purpose for being in Virginia, but they do not indicate what that purpose was; thus there is no

way for the court to determine the substance of the testimony,

whether it was necessary, or whether it would have been exculpatory.

Moreover, although they assert that each could have testified at the

trial of the other, they say nothing about the likelihood that either

actually would have waived his privilege. The appellants have presented no information about the arguments they made to the district

court in support of the motion to sever, so we cannot know whether

those arguments satisfied Parodi. In sum, Lamarr and Mallory offer

no indication that the district court abused its discretion by denying

their severance motions.

C.

Mallory contests the amount of cocaine that the district court attributed to him. In a district court's application of the Sentencing Guidelines, its factual findings are reversible only if clearly erroneous. See

18 U.S.C. § 3742. Questions of law, however, are reviewed de novo.

United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). A

defendant's Base Offense Level under the Guidelines is determined

by the amount of drugs "reasonably foreseeable to him within the

scope of his unlawful agreement." United States v. Irvin, 2 F.3d 72,

77 (4th Cir. 1993), cert. denied, Gonzalez v. United States, 114 S. Ct.

1086 (1994); United States Sentencing Commission, Guidelines

Manual, § 1B1.3(a)(1)(B), comment 2(c) (1994). The sentencing

judge applies a preponderance of evidence standard, United States v.

Brooks, 957 F.2d 1138, 1148 (4th Cir.), cert. denied, 112 S. Ct. 3051

(1992), and must make individualized findings, estimating the amount

reasonably foreseeable to each co-conspirator. U.S.S.G. § 1B1.3(a)(1)

& comment 2.

The district court adopted the presentencing report's calculation

that Mallory was responsible for approximately six kilograms of

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cocaine. Mallory argues that the estimate erroneously relied on "the

uncorroborated and contradictory testimony of [a] co-conspirator"--

Joseph Manns. He relies most heavily on United States v. Sepulveda,

in which the First Circuit vacated a sentence because the district court

relied on testimony from the guilt phase of trial that addressed quantities of drugs only generally. 15 F.3d 1161, 1198 (1st Cir. 1993), cert.

denied, 114 S. Ct. 2714 (1994). But the Sepulveda court did not challenge the district court's determination that the witness was credible;

it held that "where uncertainty reigns" about the amount of drugs

involved in a conspiracy, courts should "err on the side of caution."

Id.

Manns acknowledged that he did not keep business records, but he

described the frequency of his trips to and from New York and the

amount of cocaine he typically purchased for resale in Virginia:

Q During the time that you were involved with Mr. Mallory and Mr. Lamarr, how often were you going to New

York to get cocaine?

A Anywhere from two to three times a month.

Q And how much were you bringing back?

A Anywhere from a key and a half or less.

* * *

Q Tell me then, how many trips did you and Mr. Mallory

make down here from May through June of 1993?

A I can't say the exact amount, but I figure it was about

six or seven trips.

The court's conclusion was based on Manns's lowest estimate of the

number of trips--six--and one kilogram of cocaine per trip. The

amount per trip was consistent with Manns' statement that he brought

back "a key and a half or less" each time, and with his estimate that

he brought back about two kilograms per month during the entire

nine-month period in which he was travelling to New York:

 11
Q How much cocaine did you bring down here [from]

November '92 through August '93, sir?

 An approximation would be sufficient.

A Maybe about eighteen, nineteen keys.

The district court's estimate is inexact, but does not rise to the level

of uncertainty about which the Sepulveda court was concerned. In

Sepulveda, the witness merely had used ranges to estimate amounts

and the number of trips, and the court guessed the total by using the

midpoints of those ranges. In this case, however, the district court

used the low end of the range to estimate the number of trips and estimated the amount per trip consistently with the witness's testimony

regarding both the amount per trip and the total amount transported

during the duration of the conspiracy. As the First Circuit itself noted,

Sepulveda was an exceptional case, and its holding should not be construed broadly:

In our view, a sentencing court remains free to make judicious use of properly constructed averages and, ultimately,

to make any finding that the record supports. . . . Here, however, the record does not justify the district court's findings

concerning the drug quantities.

15 F.3d at 1199 (citations omitted). The record in this case supports

the district court's estimate. Thus the estimate is not clearly erroneous, and Mallory's sentence should stand.

D.

All of the appellants argue that there was insufficient evidence to

support their convictions. A conviction may be reversed for insufficient evidence only if, viewed in the light most favorable to the government, the evidence was so insubstantial that no"rational trier of

fact could have found the essential elements of the crime beyond a

reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Hamling v. United States, 418 U.S. 87, 124 (1974). Appellants' chief

sufficiency argument is a challenge to the validity of Manns' testi-

 12
mony. Because Manns hoped to earn a motion for substantial assistance, they argue, his testimony was "non-credible and non-worthy of

belief." That argument clearly must fail, for a fundamental rule of the

jury system is that "this court is bound by the`credibility choices of

the jury.'" United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

Secondarily, the appellants argue that there was insufficient evidence to support defendant Dillard's conviction of possession with

intent to distribute crack. They contend that the amount he possessed

--5.72 grams--was "consistent with personal use." In United States

v. Fisher we held that quantity is important in determining intent:

Intent to distribute may be inferred from possession of . . .

a quantity of drugs larger than needed for personal use. Possession of a small quantity of drugs by itself is an insufficient basis from which intent to distribute may be inferred.

912 F.2d 728, 730 (4th Cir. 1990) (citations omitted), cert. denied,

500 U.S. 919 (1991). More recently, we have held twice that the

inference of intent to distribute is supported by quantities of approximately thirteen grams of crack. United States v. Bell, 954 F.2d 232,

235 (4th Cir. 1992) ("thirteen plus grams"), cert. denied, Cruz v.

United States, 114 S. Ct. 112 (1993); United States v. Smith, 966 F.2d

1446, 1992 WL 138355, at *1 (4th Cir. 1992) (per curiam) (unpublished) ("12.79 grams").

We noted in Smith that "crack is normally distributed in doses of

1/10 of a gram and that a person ingesting a dose daily would be considered a `strong' user." 966 F.2d 1446, 1992 WL 138355 at *1;

accord Bob Martinez, Director, Office of National Drug Control Policy, The Case for Mandatory Minimum Sentences , Wash. Post, June

30, 1992, at A18 (Letters to the Editor) ("[F]ive grams is the equivalent of 50 street doses of crack. Anybody holding that much crack is

dealing and ought to be punished accordingly."). Thus Dillard possessed roughly the amount of crack that a "strong" user would ingest

in two months. Combined with Manns' testimony that Dillard was a

crack dealer, the amount in question was sufficient evidence to support the jury's inference of intent to distribute beyond a reasonable

doubt.

 13
E.

The court instructed the jury about entrapment. Dillard contends

that there was insufficient evidence for the jury to conclude that he

was not entrapped. According to the appellants' brief, "[w]here a person has no previous intent or purpose to violate the law, but is

induced or persuaded by law enforcement officers or their agents to

commit a crime, he is a victim of entrapment." Dillard concludes that

he was a victim of entrapment because

there was substantial evidence that [he] was persuaded and

induced by Manns, acting as an agent of the law enforcement officers who apprehended [Manns], to come to the

motel to attempt to knowingly and intentionally possess

with intent to distribute cocaine.

The appellants' brief incorrectly states the law of entrapment. We

stated the correct standard last year in United States v. Harrison:

"[A] valid entrapment defense has two related elements:

government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct." While the question of whether a defendant has

been entrapped is generally one for the jury, when government agents merely offer an opportunity to commit the

crime and the defendant promptly avails himself of that

opportunity, an entrapment instruction is not warranted.

37 F.3d 133, 136 (4th Cir. 1994) (quoting Mathews v. United States,

485 U.S. 58, 63 (1988)) (citing Jacobson v. United States, 112 S. Ct.

1535, 1541 (1992)). Dillard's argument is based entirely on the first

element: Manns, acting as a government agent, induced Dillard's

crime. Dillard neither argues nor points to evidence of the second

element--that he lacked the predisposition to commit the offense. In

fact, his situation fits exactly Harrison's holding that, as a matter of

law, there is no entrapment when police merely offer an opportunity

of which a defendant avails himself:

Upon contact with Dillard, Manns offered to sell Dillard

seven (7) ounces of cocaine for $6,000. This was done with

 14
the apparent knowledge of and at the request of the police.

According to Manns, Dillard agreed to the aforesaid proposed transaction and thereafter Dillard was apprehended in

the motel room which Manns told him (Dillard) to come to

allegedly purchase drugs.

Because Dillard has not even met the requirements for an instruction

on entrapment, the jury's rejection of the defense was supported by

the evidence.

III.

We find no reversible error. Accordingly, we affirm the convictions and Mallory's sentence.

AFFIRMED

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