* Pursuant to 5 TH C IR

. R. 47.5, the court has determined th at t his opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR R. 47.5.4

.

1 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-50656

ROY EDWARD BROWN,

Plaintiff-Appellant,

versus

UNITED STATES of AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

(W-94-CR-61-1)

November 12, 1998

Before POLITZ, Chief Judge, EMILIO M. GARZA, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge: *

On June 23, 1997, a jury convicted Roy Edward Brown for the possession of cocaine base

or “crack” with intent to distribute. On appeal, Brown challenges the sufficiency of the evidence

supporting his conviction, the district court’s denial of his motion to sever counts two and three, and

the application of United States Sentencing Guideline § 4B1.1. We affirm.

I. Factual and Procedural Background

On April 15, 1995, local police authorities responded to two “suspicious person” calls at the

Lakewood Mobile Home Park in Killeen, Texas. Resident Kelly Hensley made the first call which

the police received at 7:05 p.m. She described the “suspicious perso n” as a black male,2

approximately 24 years old, and wearing a white shirt with blue stripes. When Officer Dickson

arrived at the mo bile home park, he observed Brown, who appeared to fit the description, talking on

the telephone. He and another officer approached Brown who identified himself and explained that

he was waiting for a ride. The second officer knew Brown by sight. Near 7:25 p.m., Brown got in

a car which had arrived to pick him up. Officer Dickson drove through the mobile park but

encountered no one fitting the description. He returned to the station.

At 7:45 p.m., Officer Dickson responded to a second call fro m a James Vandergriff, a

different resident. Vandergriff and a neighbor Donald Baldwin had gone to the aid of Hensley after

she reported around 7:30 p.m. that someone had been lurking outside her home. Dickson estimated

that he arrived at the mo bile home park around 7:55 p.m. Once there, Dickson interviewed

Vandergriff and Hensley and examined the contents of a brown paper bag which Hensley claimed the

“suspicious person” had dropped in her yard. A narcotics investigator, James “Jack” Chapman took

custody of the paper bag which was later determined to contain 117 grams of crack.

Investigator Chapman a s ked Hensley to view a photo spread which she did six days later.

Brown’s photograph was included in the photo spread since two officers positively identified him at

the mo bile home park. Alt ho ugh Hensley did not describe the suspect as having facial hair, each

person in the photo spread had facial hair because the police’s only picture of Brown depicted him

with a mustache and a goatee. Hensley chose Brown’s picture.

These relatively simple facts have lead to three trials. In August 1994, a grand jury returned

a two count superceding indictment. Count one charged Brown with possession of cocaine base or

“crack” in violation of 21 U.S.C. § 841(a)(1). Count two charged Brown with distributing the same

on April 7 , 1994 in violation of 21 U.S.C. § 841(a)(1). Brown was tried in October 1994. The

district court entered a judgment of acquittal on count two and the and found him guilty as charged

in count one.

On appeal, we held that the district court erred in admitting evidence that Brown had

previously been convicted of possessing crack with intent tot distribute. We reversed and remanded3

for retrial on count one. After an April 1996 ret rial o n count one, a jury convicted Brown yet on

appeal we reversed and remanded for retrial. We found that the district court erred in permitting the

government to offer evidence that Brown had distributed crack in three uncharged transactions.

One year later, in April 1997, the grand jury returned a second superceding indict ment

realleging count one and charging two additional counts of distribution of “crack” cocaine. Count

two alleged an April 11, 1994 possession with intent to distribute while count three related to an April

13, 1994 charge. In June 1997, a jury found Brown guilty on count one only. Brown filed a Motion

for Judgment of Acquittal which the district court denied. The district court then sentenced Brown

as a career offender under section 4B1.1 of the United States Sentencing Guidelines to 360 months

imprisonment, five years supervised release, a $2,500 fine and a $100 special assessment.

II. Discussion

A. The Sufficiency of the Evidence

Brown propounds that the district erred when it denied his motion for judgment of acquittal

because there is insufficient evidence to convict him. Brown highlights what he considers defects in

H ensley’s identification of him. Specifically, Brown argues that Ms. Hensley description did not

match his description as it pertained to height and facial hair. Next, Brown contends that the timing

of events including the time of call s t o t he police department, dispatch of officers and his initial

contact with police makes it “virtually impossible” for him to be the man Ms. Hensley claimed she

observed. Finally, in passing Brown notes that no forensic evidence such as fingerprints connect him

to the bag which contained the drugs. Co mbined, Brown concludes that significant irreconcilable

inconsistencies exist; therefore, the evidence fails to identify him beyond a reasonable doubt as the

man Ms. Hensley saw. His motion for judgment of acquittal preserves the argument for appeal.

We review the denial of a motion for judgment of acquittal de novo

. S ee Unit ed States v.

Greer , 137 F.3d 247, 249 (5 t h Cir. 1998). Under this review, we consider “whether, viewing t he

evidence in the light most favorable to the government, a rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt.” I d

. S ee also

, Jackson v. Virginia

, 4431 The April 13, 1994 count is one of the same three drug transactions Stacy Johnson testified

to at the second trial which this court ruled was inadmissible. Overall, the government’s tactics push

the envelope of overzealous prosecution. It adds credibility to Brown’s implicit yet hollow argument

that the government could not prove its case with regard to count one without presenting evidence

that Brown had engaged in unrelated drug transactions. Despite the unpleasant odor which trails the

government’s prosecution of this case, we express no opinion on the merits of the second superceding

indictment.

4 U.S. 307, 319 (1979); United States v. Salazar , 66 F.3d 723, 728 (5 th Cir. 1995).

We conclude that the government provided ample evidence to establish possession of cocaine

base or “crack.” As we held in U.S. v. Shah , 44 F.3d 285, 295 (5 th Cir. 1995), “[t]he government

need not make a case for identity air-tight; identity may be inferred circumstant ially[.]” The

go vernment’s evidence included an identification by Ms. Hensley and testimony of officers who

conversed with him when they responded to the first call. Brown had every opportunity to cross

e xamine the government’s witnesses, expose any inconsistencies and otherwise argue his defense.

Nevertheless, the jury’s assessment of credibility favored the government. We are mindful not to

second guess a jury’s assessment of credibility of a witness who has directly identified the defendant.

See United States v. Bell

, 812 F.2d 188, 193 & n.5. Overall, we agree with the district court on this

issue. Based on the evidence, a rational trier of fact could conclude that Brown possessed the brown

bag.

B. Severance of Counts Two and Three

After Brown’s second tria l, t his court reversed his conviction on count one of the original

s uperceding indictment because the trial court erred in allowing evidence of three uncharged dru g

transactions. These transactions were based on the testimony of an informant, Stacy Johnson, who

testified that he purchased crack from Brown three times in April and May of 1994. Instead of trying

Brown on co unt o ne alo ne, the government returned to the grand jury and secured a superceding

indictment adding two new counts which involved alleged crack sales by Brown to Johnson in April

1994. 1 Brown moved to dismiss the new counts or alternatively to sever count one for separate trial

pursuant to Rule 14 of the Federal Rules of Criminal Procedure

.5

In relevant part, Rule 14 of the Fed. R. Crim. P. provides:

If it appears that a defendant or the government is prejudiced by joinder of offenses . . .the

trial court may order an election or separate trials of counts or provide whatever other relief

justice requires.

Fed. R. Crim. P. 14. This court reviews the denial of a motion for severance under Rule 14 only for

abuse of discretion. See United States v. Bullock , 71 F.3d 171, 174 (5 th Cir. 1995). In conducting

our review, we must first determine whether, as a matter of law, the disputed co unts were joined

properly under Fed. R. Crim. P. 8(a). I d .; United States v. Winn

, 948 F.2d 145, 160 (5 th Cir. 1991).

The ru le co nt emplat es some prejudice from the mere act of joining counts in an indictment. S ee

United States v. Scott

, 659 F.2d 585, 589 (5 th Cir. 1981). Next, even if joinder is improper, we must

assess whether the defendant has demonstrated “clear, specific and compelling prejudice that resulted

in an unfair trial.” Bullock , 71 F.3d at 174; accord Winn , 948 F.2d at 161; Scott

, 659 F.2d at 589.

We are mindful that the burden of showing such prejud ice is a difficult one which rarely results in

disturbing the ruling of the trial j udge. S ee United States v. Ballis

, 28 F.3d 1399, 1408 (5 th Cir.

1994).

Pursuant to Rule 8(a) of the Fed. R. Crim. P.

, two or more offenses may be charged in the

same indictment or information provided the offenses are of the same or similar character. There is

no doubt that the three drug counts satisfy this standard. Brown has basically waived any challenge

under Rule 8(a) by failing to assert that joining the three counts violated the rule and by conceding

that the nature of the offenses were not different. S ee Brief of Appellant at 19; see also United States

v. Morris

, 647 F.2d 568, 570 (5 t h Cir. 1981). Under these circumstances, we cannot find that the

district court’s decision to deny severance violated Rule 8(a).

Brown offers a plethora of reasons to s upport his contention that he was prejudiced and

received an unfair trial. None of them merit redress. Brown revisits our decision in his prior appeals

to argue that without the extrinsic evidence the government’s case on count one is weak. According

to Brown, introduction of the same in this case is prejudicial per se . He claims the prejudice was

exacerbated by the prosecutor’s statement during closing argument s uggest ing the jury use the2 While the evidence pertaining to count one is minimal, we cannot find that a reasonable jury

could not have co nvict ed Brown. Brown attempts to frame his case in the same vein as the two

previously dismissed by this court but the existence of a second superceding indictment distinguishes

his case from the previous two cases. Rule 404(b) of the F ederal Rules of Evidence does not apply

because the evidence that he sold crack to Johnson, as charged in the superceding indictment, was

not extrinsic as contemplated by Rule 404(b).

6 evidence regarding counts two and three for propensity purposes. Brown further challenges the jury

instruction and claims that it failed to cure any prejudice.

The government has endeavored to introduce evidence or prosecute Brown for distribution

of cocaine base or crack. Once the information was properly before the jury as counts in the second

superceding indictment, the jury rejected the government’s evidence on those claims. This finding

of not guilty on these counts demonstrates that the jury discerned th e merits of the case against

Brown and declined to convict where the government failed to carry its burden of proof.

Conseq u ently, the court rejects Brown’s argument that the “carry-over” effect of counts two and

three prejudiced his conviction. See United States v. Cartwright , 632 F.2d 1290, 1294. 2

The court must also reject Brown’s claim that the jury instructions failed to cure any

prejudice. First, nothing in the record indicates that Brown objected to the instruction or offered an

alternative. The fact that the judge utilized the P attern Jury Instructions (Criminal Cases) 32 (West

1997) is not dis po sitive. The instructions are a guide and are not immune from challenges.

Nevert heless, we have upheld the instruction used in the case at bar. S ee Winn

, 948 F.2d at 161;

Scott , 659 F.2d at 589; United States v. Maggit , 784 F.2d 590, 596 (5 th Cir. 1986).

Brown’s reliance on this court’s decision in Panzavecchia v. Wainwright , 658 F.2d 337 (5 th

Cir. 1981) is misplaced. In P anzavecchia

, a § 2254 appeal by a state inmate, this court found that the

appellee had received an unfair trial because the trial court failed to offer an appropriate cautionary

instruction explaining the limit ed purpose for which a particular piece of evidence had been admitted.

In Panzavecchia

, the court held that prejudice to the defendant “clearly existed.” I d

. at 341. The

same may not be said in this case since Brow n o ffers speculation on the carry-over effect of the

additional charges and fails to rebut the presumption that the jury discerned the merits of each charge3 Section 4B1.1 defines criminal offender and imposes a criminal history of Category VI, the

highest category under the guidelines.

7 by finding guilt on count one but not on counts two or three. S ee Proctor v. Butler

, 831 F.2d 1251,

1256-57 (5 th Cir. 1987)(distinguishing Panzavechchia ); see also

, Bullock

, 71 F .3d at 175 & n.2

(affirming refusal to grant Rule 14 severance where the district court properly instructed jury as to

limited use that could be made of prior felony convictions).

Finally, Brown alleges that t he prejudicial effects of the government’s evidence was

exacerbated by the prosecutor’s statements during closing arguments which suggested the jury use

the evidence regarding counts two and three for propensity purposes. Brown makes this argument

in his attempt to bring this case within the ambit of the two cases previously reversed by this court.

We cannot make the same finding in this case. Counts two and three were properly before the jury

in a second superceding indictment and are not considered extrinsic evidence. Moreover, the trial

court properly informed the jury that they should decide the case solely on the evidence which did

not include, inter alia , arguments of counsel. See 7 Record 4.

Overall, Brown has failed to show that the district court abused its discretion when it denied

his motion. Consequently, we affirm the judgment of the district court.

C. Sentencing as Career Offender

The district court determined that Brown’s 1989 state convictions for possession with intent

to deliver crack cocaine should be counted separately resulting in application of the § 4B1.1 of the

U.S.S.G. 3 We review the district court’s determination d e novo

, see U nited States v. Sommer

, 127

F.3d 405, 408, and affirm the judgment of the district court.

Brown relies on

§ 4A1.2(a)(2) which requires prior sentences imposed in unrelated cases be

counted separately. Prior sentences imposed in related cases are to be treated as one sentence for

purposes of § 4A1.1(a), (b), and (c). The sentences are not considered related if they were offenses

that were separated by an intervening arrest. U.S.S.G. § 4A1.2, comment n.3. On the other hand,

prior sentences are considered related when they result from offenses that (1) occurred on the same4 Brown’s approach would create perverse incentives to disregard the police yet continue to

engage in criminal activity without sentencing repercussions. An intervening arrest demonstrates that

the offender, as compared to o ne who has had no intervening arrest, is unlikely to mend his ways.

See United States v. Springs , 17 F.3d 192, 195-96 (7 th Cir. 1994). An arrest less than three weeks

after Brown successfully eluded police portray s him as one who at that time was not likely to mend

his ways. Consequently, we must agree with the district court.

8 transaction, (2) were part of a common plan or scheme, or (3) were consolidated for trial or

sentencing. Brown avers that his prior state drug charges were no t separat ed by an “intervening

arrest” and that they were considered consolidated for sentencing” by operation of state law.

We reject Brown’s argument. We transcend a formulaic application of the rule to consider

the defendant’s conduct in determining the existence of an intervening arrest. See United States v.

Coleman

, 38 F.3d 856, 860 (7 th Cir. 1994). Brown fled Texas State Troopers after they observed

what was later confirmed to be crack cocaine in the seat he occupied as a passenger in a vehicle.

Brown avo ided arrest by fleeing from state troopers until he was subsequently arrested by local

authorities a little over two weeks later for selling crack on a city street. The state troopers identified

Brown as the person who had fled and Brown was charged in two separate indictments. Brown pled

guilty to each indictment and separate judgments were entered against him. He was sentenced on the

same day. Under these circumstances, we agree with the district court and will not permit Brown to

benefit from his willful disregard for authorities. 4

Finally, Brown’s claim that the consolidation o f his conviction for purposes of sentencing

precluded application of § 4B1.1 is without merit. Sentencing in two distinct cases on the same day

does not necessitate a finding that they are consolidated. S ee United States v. Velazquez-Overa

, 100

F.3d 418, 423 (5 t h Cir. 1996); see also

, United States v. Bryant

, 991 F.2d 171, 178 (5 th Cir.

1993)(holding that this court has consistently “rejected the idea ‘that cases must be considered

consolidated simpl

y because two convictions have concurrent sentences’”)(citations omitted in

original). Brown’s reliance on Texas appellate decisions including L aPorte v. State

, 840 S.W.2d 412

(Tex . Crim. App. 1992)(en banc) is mistaken. This court has analyzed L aPorte and rejected its

application to determining whether cases have been consolidated for guideline purposes. S ee United9

States v. Fitzhugh

, 984 F.2d 143, 147 n. 18 (5 th Cir. 1993). In sum, Fifth Circuit precedent forecloses

application of LaPorte and its progeny. Accordingly, Brown’s 1989 convictions are not consolidated;

therefore, the court affirms his career offender sentence.

III. Conclusion

For the reasons stated herein, we AFFIRM the judgment of the district court.