United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-2525

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United States of America, *

 *

Appellee, *

 *

v. *

 *

Terry Swant, *

 *

Appellant. *

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 Appeals from the United States

No. 97-2720 District Court for the

__________ Northern District of Iowa.

United States of America, * [UNPUBLISHED]

 *

Appellee, *

 *

v. *

 *

Daniel Edward Bouska, *

 *

Appellant. *

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 Submitted: March 5, 1998

 Filed: March 6, 1998

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Before FAGG, BOWMAN, and MURPHY, Circuit Judges.
The Honorable Michael J. Melloy, Chief Judge, United States District Court for 1

the Northern District of Iowa.

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___________

PER CURIAM.

In a superseding indictment, Terry Swant, Daniel Edward Bouska, and Steven

Damjanovic were charged with conspiring to distribute methamphetamine and

possessing methamphetamine with intent to distribute, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(A), and 846. Swant pleaded guilty, and Bouska was convicted

by a jury following a trial. On appeal, Swant challenges the sentence imposed on him

by the district court, and Bouska challenges his conviction and sentence. We affirm. 1

Bouska challenges his conviction by arguing the district court erred in denying

his request for a mistrial, made after the prosecutor asked Bouska on cross-examination

whether he knew that another individual, who was with Bouska at the time of his arrest,

had methamphetamine on his person, contrary to the district court&s pretrial ruling. We

review for abuse of discretion a district court&s discretionary decision to deny a motion

for a mistrial. See United States v. Thomas, 93 F.3d 479, 487 (8th Cir. 1996).

Reversible trial error occurs when a prosecutor&s actions are improper and have

prejudicially affected the defendant&s substantial rights so as to deprive the defendant

of a fair trial. In making such a determination, we consider the cumulative effect of

such misconduct, the strength of the properly admitted evidence of the defendant&s

guilt, and the curative actions taken by the district court. See id. 

Given the extensive evidence of Bouska&s guilt, we cannot say that the court

abused its discretion in denying the motion for a mistrial. Even assuming without

deciding that the prosecutor&s action was improper, we do not believe Bouska was

denied a fair trial. Bouska&s involvement with methamphetamine was testified to and

corroborated by four other witnesses. Bouska admitted that he had used
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methamphetamine with, and had obtained methamphetamine from, three of these

witnesses. In answer to the prosecutor&s question, Bouska stated that he was not aware

officers had discovered methamphetamine on his companion, thereby diminishing the

alleged prejudicial effect of the question. The district court also refused to admit into

evidence the methamphetamine seized from this other person, or the lab report&s

reference to this methamphetamine. 

As to their sentences, Swant and Bouska both challenge the district court&s

imposition of a two-level enhancement for possessing firearms during the commission

of a drug offense, pursuant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1995).

We conclude that the court did not clearly err in assessing this enhancement. See U.S.

Sentencing Guidelines Manual § 2D1.1, comment. (n.3) (1995) (enhancement applies

unless it is clearly improbable that weapon was connected with drug offense); United

States v. McCracken, 110 F.3d 535, 542 (8th Cir. 1997) (standard of review). As to

Swant, although the firearms seized from his residence were kept in a locked gun

cabinet, the guns were visible through the cabinet&s glass front; the key to the cabinet

was located on top of the cabinet; the ammunition for these weapons--including a

loaded clip--was stored in or near the cabinet; and Swant conducted drug transactions

at his residence. As to Bouska, numerous firearms--including a small caliber handgun

with a clip, a small caliber revolver, and an SKS rifle--were discovered at his

residences, where drug transactions occurred. Cf. United States v. Macklin, 104 F.3d

1046, 1048 (8th Cir.) (finding no clear error in assessment of firearm enhancement,

given, among other things, ongoing drug trafficking occurring out of residence where

firearms were seized, and likely need for defendants to protect both drugs and cash

found in residence), cert. denied, 118 S. Ct. 229 (1997). 

Swant also argues that the district court erred in imposing a role enhancement,

pursuant to U.S. Sentencing Guidelines Manual § 3B1.1(c) (1995). We conclude that

the court did not clearly err in determining Swant was a manager of the drug conspiracy
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and thus qualified for this role enhancement. See United States v. Flores, 73 F.3d 826,

835 (8th Cir.) (standard of review), cert. denied, 116 S. Ct. 2568 (1996). 

Swant fronted drugs to two other individuals; found and cultivated the

conspiracy&s California drug source; alone arranged to pick up and transport the drugs

from California to Iowa, where others resold them; and also cut the drugs. See U.S.

Sentencing Guidelines Manual § 3B1.1, comment. (n.2) (1995) (adjustment applies if

defendant was organizer, leader, manager, or supervisor of one or more participants);

cf. United States v. Alexander, 53 F.3d 888, 892-93 (8th Cir. 1995) (finding 2-level role

enhancement not clearly erroneous, because defendant “took a degree of responsibility

for the distribution business” by delivering drugs to middlemen, cutting drugs for

distribution, and transporting drugs interstate without supervision); United States v.

Harris, 982 F.2d 317, 318 (8th Cir. 1992) (affirming 2-level role enhancement for being

manager of drug conspiracy, because, among other things, defendant was key link

between supply of drugs from Florida and its distribution in Iowa, and defendant was

able to supply large quantities of drugs during conspiracy).

Contrary to Swant&s assertion, to be a manager, a defendant in a drug conspiracy

need not control or manage the activities of co-conspirators. See United States v. Tran,

16 F.3d 897, 902-03 (8th Cir. 1994). While Swant maintains that he objected to the

presentence report and that the government failed to offer any evidence demonstrating

the role enhancement was appropriate, we agree with the government that Swant

objected to imposition of the enhancement and not to the veracity of the underlying

facts.

Bouska also argues that the district court clearly erred in making its drug-quantity

calculation by relying on the “suspect” testimony of two cooperating, government

witnesses. We disagree, because the court was entitled to rely on and assess that

testimony. See United States v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996) (standard

of review); United States v. Campos, 87 F.3d 261, 263-64 (8th Cir.)
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(affirming district court&s approximation of drug quantity; defendant essentially attacked

district court&s credibility determinations, which are virtually unreviewable on appeal),

cert. denied, 117 S. Ct. 536 (1996); United States v. Dailey, 918 F.2d 747, 748 (8th Cir.

1990) (district court may rely upon evidence presented at trial in making sentencing

determinations). We further conclude that the court did not clearly err in denying

Bouska an acceptance-of-responsibility reduction. See U.S. Sentencing Guidelines

Manual § 3E1.1, comment. (n.2) (1995) (§ 3E1.1 is “not intended to apply to a

defendant who puts the government to its burden of proof at trial”); United States v.

Trupiano, 11 F.3d 769, 776 (8th Cir. 1993) (standard of review).

Finally, because the district court determined that Bouska was responsible for

only the amount of methamphetamine with which he was personally involved and not

for the relevant conduct of his co-conspirators Damjanovic and Swant, we believe the

court did not clearly err in denying Bouska a mitigating-role reduction. See United

States v. Thompson, 60 F.3d 514, 517-18 (8th Cir. 1995) (standard of review); United

States v. McCarthy, 97 F.3d 1562, 1574 (8th Cir. 1996) (district court did not err in

refusing to grant defendant role reduction; defendant, who was held responsible for only

amount of drugs he personally distributed and not for entire amount of drugs distributed

in conspiracy, sought “double reduction” to his base offense level by attempting to have

entire amount of drugs in conspiracy be used to determine his role in offense), cert.

denied, 117 S. Ct. 1011, 1284 (1997).

Accordingly, we affirm Swant&s sentence, and Bouska&s conviction and sentence.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.