UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 96-31247

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UNITED STATED OF AMERICA,

Plaintiff-Appellee,

VERSUS

TERENCE MILLSAPS, MICHAEL JOHNSON

AND HERMAN A. STEVENSON III,

Defendant-Appellants.

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Appeals from the United States District Court

for the Eastern District of Louisiana

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October 8, 1998

Before REYNALDO G. GARZA, HIGGINBOTHAM and EMILIO M. GARZA, Circuit

Judges.

PER CURIAM:

In November, 1995, T rent Summers, a DEA informant, met with

the defe ndants, Terence Millsaps and Michael Johnson in New

Orleans. There th ey discussed the possibility of entering into a

drug transaction. Summers told Millsaps that he could provide him

with 10 kilograms of cocaine.

On December 1, 1995, Summers introduced Andrew Chambers, a DEA

informant, to Millsaps and Johnson as a supplier of cocaine from1 A Toyota Land Cruiser is a 4x4 sport-utility vehicle with a

enclosed cabin area.

2 Los Angeles. They agreed that Chambers would provide Millsaps and

J ohnson with 10 kilograms of cocaine at a price of $14,500 per

kilogram or a total of $140,000.

On December 4, 1995, Chambers, Summers, Millsaps, Johnson and

defendant Herman Stevenson had a telephone conversation where they

agreed to meet to complete the drug transaction in a Sam’s

Wholesale Club parking lot. Inside Stevenson’s Land Cruiser, 1

C hambers saw a firearm and money to be used in the transac tion.

Chambers then made the prearranged arrest signa l and the DEA

intervened. The agents arrested Stevenson, Millsaps and Johnson and

seized a .45 caliber pistol and $39,863.00 from Stevenson’s

Vehicle.

On December 15, 1995, a grand jury for the Eastern District of

Louisiana, returned a three-count indictment against Stevenson,

Millsaps and Johnson. All three were charged with conspiracy to

possess cocaine with intent to distribute and attempted possession

of cocaine with intent to distribute. In addition, Stevenson was

charged with the use of a firearm in relation t o the drug

trafficking crime.

On March 7, 1996, the grand jury returned a sixteen count

superseding indictment against Stevenson, Millsaps, and Johnson.

The new indictment added three counts charging Stevenson with

heroin trafficking and ten counts charging him with money3

laundering, all stemming from activities unrelated to Millsaps and

Johnson. Also included in the indictment were the three counts

against the defendants in the original, December 15 indictment.

On Ma rch 18, 1996, Yvonne Hughes enrolled as counsel for

Michael Johnson. On April 9, 1996 the government filed a Motion to

Disqualify Defense Counsel Yvonne Hughes due to a conflict of

interest in her representation of Johnson and government witness

Prestiss Martin. On May 1, 1996, the court granted the

government’s mo tion to disqualify defense attorney Yvonne Hughes

and on May 16, 1996, the court denied Johnson’s motion to

reconsider its decision.

On June 19, 1996, the district court granted a motion by

Millsaps and Johnson for a severance. The court feared that a

trial on all counts of the superseding indictment would prejudice

Millsaps and Johnson with evidence of Stevenson’s unrelated heroin

trafficking. The district court ordered trial to proceed fi rst

against Millsaps, Johnson, and Stevenson based solely on the

original three count indictment.

On November 13, 1996, the jury convicted Millsaps and Johnson

on the two counts relating to them, and it found Stevenson guilty

on all three of his counts. On November 22, 1996, the government

moved to dismiss the 13 counts of the superse ding indictment

concerning Stevenson’s heroin trafficking and money laundering. On

Febru ary 26, 1996, after enhancing his sentence under the career

offender provisions of the Sentencing Guidelines, the court4

sentenced Millsaps to 450 months of imprisonment.

On April 30, 1997, the district court granted the government’s

m otion for an upward departure and sentenced Stevenson to 295

months of imprisonment. All three defendants timely appealed to

this Court.

Discussion

I. Denial of Appellants’ Motion for Mistrial.

During the government’s case-in-chief, prosecutors played

taped conversations between the DEA informants and the defendants

to the jury. After one of the tapes was played, the government

asked its informant, Chambers, to testify to the meaning of some of

the terms used in the conversation:

Q. Now, Mr. Chambers, you heard that portion of the

conversation, didn’t you?

A. Yes, I did.

Q. Who’s speaking to who in this portion of the

conversation?

A. I’m talking to Millsaps.

Q. Is he speaking to you?

A. Yes.

Q. Is there some conversation in here where you’re talking

about the “nickel.” [sic] What do you mean by the

“nickel” there?

A. I’m talking about five keys.

Q. And there is also c onversation where you’re told that5 thi s other person [Stevenson] is “old players game is

that boy.” At that time what did you understand that to

mean?

A. He’s a heroin dealer.

Q. And when you were told “He jumping on t his time on the

strength of me,” at that time, what di d you understand

that to mean?

A. Millsaps, the only reason that he had switched from the

heroin to the coke was because Millsaps told him it was

cool and straight; there was no problem with it.

The defense objected to this testimony, arguing that heroin charges

were not before the jury. The court sustained the objection and

gave the jury a cautionary instruction: “I have sustained an

objection to any referen ce to the use of heroin, and the jury is

in structed to disregard anything to do with the use of heroin.”

The defendants, however, moved for a mistrial, which the court

denied. All the defendants now assert that this was an error.

The defend ants contend that the district court’s pretrial

rulings barred any reference to heroin at trial, so that Chambers’

testimony was so prejudicial that it warranted a mistrial. The

defendants’ claim, however, lacks mer it because the court never

made such an explicit pretrial ruling. Rather, before trial the

court only severed the heroin/money-laundering charges against

Stevenson from the cocaine charges again st all three defendants

because of its concern that:

[i]f the indictment forebodes the trial evidence, it is

obvious that much of the trial will be concerned with

Ste venson’s alleged activities as a heroin dealer and money

launderer. The jury might infer, correctly or incorrectly,6

that anyone associated with Stevenson must be involved in

narcotics trafficking, given the likely nature of the

evidence. Because of the overwhelming evidence which will

probably be introduced against Stevenson, the Court finds that

Millsaps and Johnson will be prejudiced by going to trial with

him as to [the heroin and money laundering counts].

The defendants never filed a motion in limine to bar references to

heroin in the cocaine trial, nor did the court ever make such a

ruling s ua sponte . The trial court properly sustained the

defendants’ trial objections to the testimony about heroin, since

those references constitute d evidence of other crimes. However,

the defend ants are mistaken in their assertion that the

government’s eliciting of this testimony violat ed the terms of a

pretrial order.

In light of these facts, it is clear that the district court

did not abuse its discretion in denying the defendants’ motion for

a mistrial. The refusal to grant a mistrial based on the admission

of prejudicial evidence is reviewed for an abuse of discretion.

United States v. Paul

, 142 F.3d 836, 844 (5th Cir. 1998). “If the

motio n for mistrial involves the presentation of prejudicial

testimony before a jury, a new trial is required only if there is

a significant possibility that the prejudicial evidence had a

substantial impact upon the jury verdict, viewed in light of the

entire record.” I d

. In addition, a prejudicial remark may be

rendered harmless by curative instructions to the jury. United

States v. Nguyen , 28 F.3d 477, 483 (5th Cir. 1994). Furthermore,7

this Circuit also gives great weight to the trial judges’

assessment of the prejudicial effect of the remark. Id.

The government contends that the references t o heroin were

admissible on res gestae grounds. However, whether this is true or

not is irrelevant. Even if the reference to Stevenson’s heroin

activities was prejudicial to the defendants, the trial court

struck that testimony and gave a curative instruction. Also,

“juries are presumed to follow their instructions.” Zafiro v.

United States

, 506 U.S. 534, 540 (1993), and the defendants do not

explain how the court’s curative instruction was inadequate.

At trial there was substantial evidence of the defendants’

guilt. Thus, it is highly unlikely that any of the cocaineconspiracy convictions were derived from the jury’s concerns about

heroin. Rather, to the extent that the jury disregarded the

court’s curative instruction, the admission of the heroin evidence

is harmless. S ee United States v. Sotelo

, 97 F.3d 782, 797-98 (5th

Cir. 1996) (finding harmless the admission of hearsay evidence when

the evidence was later stricken, a curative instruction was given,

and the evidence of guilt was overwhelming), cert. denied

, Quintana

v. United States

, 117 S.Ct. 620 (1996). Therefore, the defendants

have failed to establish that the heroin testimony was so

overwhelmingly prejudici al as to make the court’s denial of a

mistrial an abuse of discretion.8

II. Lack of Credibility of Government’s Chief Witness

This Circuit, when reviewing a challenge to the sufficiency of

the evidence, must determine whether a rational trier of fact could

have found that the evidence established guilt beyond a reasonable

doubt . United States v. Ivey , 949 F.2d 759, 766 (5th Cir. 1991),

cert. denied

, Wallace v. United States

, 506 U.S. 819 ( 1992). It

must also view all evidence and any inferences that may be drawn

from it in the light most favorable to the government. Ivey

, 949

F.2d at 766. In addition, “[i]t is the sole province of the jury,

and not within the power of this Court, to weigh conflicting

evidence and evaluate the credibility of witnesses. I d

. at 767.

The jury has the unique role to “judge the credibility and evaluate

the demeanor of witnesses and to decide how much weight should be

given to their testimony .” United States v. Layne , 43 F.3d 127,

130 (5th Cir. 1995), c ert. denied

, 514 U.S. 107 (1995). This

narrow standard of review for sufficiency of the evidence

challenges “gives full play to the responsibility of the trier of

fact fairly to resolve conflicts in testimony, to weigh the

evidence and to draw reasonable inferences from basic facts to

ultimate facts.” J ackson v. Virginia

, 443 U.S. 307, 319, 99 S.Ct.

2781, 2789, 61 L.Ed.2d 560 (1979).

The defendants assert that the evidence of their guilt was9

insufficient because their convictions rested on the testimony of

C hambers, a government informant who lacked credibility. Even

assuming Ch ambers’ testimony was the only evidence presented

against the defendants their argument remains meritless. It is

clear that Chambers is not the most pristine of witnesses.

Chambers has been paid over $1,000,000 by the DEA for his testimony

in past cases, he cheated on his taxes, and he beat his wife. In

light of these facts however, the jury still chose to convict the

defendants. Therefore, because the jury has the sole power to

weigh and evaluate the credibilit y of each witness and their

verdict was not so incredible, it would be unjustified and improper

for this Court to intervene.

III. Determination of Amount of Cocaine Involved in the Conspiracy

At sentencing, the trial court found that t he amount of

cocaine invo lved in the conspiracy was 10 kilograms. The

Sentencing Guidelines catagorize drug offenses by the amount of

drugs involved. One such category, which the district court

a pplied to the defendants, covers conspiracies to possess with

intent to distribute bet ween 5 and 15 kilograms of cocaine. S ee

U.S.S.G. § 2D1.1(C)(4).

Millsaps argues that the district court erred in finding that

the crime involved 10 kilograms of cocaine. He contends that the10

only evidence of a 10 kilogra m conspiracy came from Chambers’

ambiguous testimony and that Chambers is an an unreliable

government informant. Otherwise, Millsaps asserts, that the

evidence pointed to a much smaller conspiracy. Millsaps notes that

the conspirators agreed to a price of $ 14,500/kilogram, but when

arrested they were found to be carrying only $38,863 in cash.

Therefore, Millsaps concludes that t he conspiracy must have

involved only a purchase of less than 3 kilograms of cocaine

because the defendants possessed insufficient cash to procure any

more.

This Circuit has firmly established that the burden of proof

at sentencing is usually by a “preponderance of the evidence.”

United States v. Lombardi

, 138 F.3d 559, 562 (5th Cir. 1998).

However, we have also recognized that i n some rare circumstances

that the “beyond a r easonable doubt” standard may be more

appropriate. U

nited States v. Mergerson

, 4 F.3d 337,343 (5th Cir.

1993) cert. denied , 510 U.S. 1198 (1994). In these situations “a

particular fact relevant to sentencing dr amatically alters the

sentencing op tions of the court to the disadvantage of the

defendant.” Id

.

This Court, as in Mergerson , is quite reluctant to part from

the preponderan ce of the evidence standard in a non-capital case

and will not do so. Although the determination of the quantity of

drugs involved in this conspiracy had a substantial impac t on11

Millsaps’ sentence, it does so in every other drug case as well.

To accept a higher burden of proof under the facts of this case

would cause us to impose a higher burde n of proof in every

narcotics prosecution. We routinely employ the preponderance of

the evidence standard in calculating the quantity of drugs involved

in drug cr imes, and we will not depart from that well settled

practice.

A district court’s factu al findings for sentencing purposes

are reviewed for clear error. See United States v. Misher

, 99 F.3d

664,671 (5th Cir. 1996), cert. denied

, Cobb v. United States , 118

S.Ct. 73 (1997). This deferential standard of review specifically

covers a district court’s determination as to the amount of drugs

involved in the narcotics offense. See United States v. Mir , 919

F.2d 940 (5th Cir. 199 0). Furthermore, the clearly erroneous

standard of review protects the district court’s determination of

the amount of drugs involved in an offense. L ombardi

, 138 F.3d at

562.

The district court’s finding that the conspiracy involved 10

kilograms of cocaine was not clearly erroneous. At trial, Chambers

testified that he understood that their initial transaction was to

involve 5 k ilograms of cocaine, with a follow-up transaction to

involve another 5 kilograms if everything went well the first time.

Thus, the defendants intended to purchase 10 kilograms of cocaine

in two installments of 5 kilograms each. Therefore, the district12

court did not clearly err in concluding that a preponderance of the

evidence pointed to a 10 kilogram conspiracy. Furthermore, even if

the transaction involved only 5 kilograms of cocaine, it would not

change the offense level of the crime. S ee U.S.S.G. § 2D1.1(C)(4)

(covering 5 to 15 kilograms of cocaine). The mere fact that the

defendants were caught with only enough money to purchase less than

3 kilograms of cocaine does not outweigh the testimony indicating

that they intended to purchase 10 kilograms.

IV. Sentencing of Millsaps as a Career Offender.

Millsaps asserts that the district court erred in sentencing

him as a ca reer offender. Millsaps’ Presentence Investigation

Report’s (PSI) reported that he had a 1986 f ederal felony

conviction for bank robbery and a 1991 state felony conviction for

aggravated battery. Millsaps objected to the PSI’s classification

of him as a career offender, however, he offered no evidence

suggesting that the PSI rep ort of his criminal history was

inaccurat e. Instead, Millsaps suggests that once he objected to

the PSI, the government was required to present proof of his

convictions. However, this assertion is without merit.

To support his contention, Millsaps relies on United States v.

Johnson

, 823 F.2d 840, 842 (5th Cir. 1987), in which we refused to

enhance a sentence based solely on a government attorney’s disputed13

accusations about the defendant’s past crimes. As we stated in

Johnson

, however, “the reports upon which [a] district judge bases

the sentence must be reliable.” Id. PSI’s qualify as such reliable

reports. In U

nited States v. Rodriguez

, 897 F.2d 1324, 1327-28

(5th Cir. 1990), cert. denied

, 498 U.S. 857 (1990), we held that a

district court is entitled to rel y entirely upon the facts

contained in a PSI, even if a defendant objects to those facts, if

the defendant does not present any rebuttal evidence. The

defendant must show the evidence in which the district court relied

upon in sentencing w as materially untrue. R odriguez

, 897 F.2d at

1328. Millsaps did not present any evidence suggesting that the

PSI’s detailing of his criminal record was erroneous. Accordingly,

the district court did not clearly err in relying upon the PSI to

conclude that Millsaps was a career offender.

V. Forced Recusal of Johnson’s Attorney

It was not an error for the district court to disqualify

Yvonne Hu ghes as Johnson’s attorney. A district court’s

disqualification of a defense attorney for conflict of interest is

reviewed for abuse of discretion. Sotelo , 97 F.3d at 791. The

Supreme Court has previously upheld the disqualification of defense

counsel over the defendant’s Sixth Amendment objection when the

counsel also represented a potential government witness. S ee14

United States v. Wheat , 486 U.S. 153 (1988).

On April 9, 1996, the government filed a motion to disqualify

Yvonne Hughes as Johnson’s defense counsel because Hughes had

previously represented a government witness in the case, Prentiss

Martin. Hughes contended that she no longer represented Martin,

and Martin offered to waive the attorney-client privilege for

purposes of this case. Nevertheless, on May 6, 1996, we dismissed

the appeal for want of prosecution, but later reinstated it on

October 3, 1996. Finally, on November 8, 1996, Johnson appeared

in open court and stated under oath that he wished to proceed to

trial with his present counsel and no longer desired to pursue the

appeal from the disqualification ruling.

Nevertheless, Johnson now asserts that his waiver of an

appeal was not effective, alleging that the colloquy between the

court and himself regarding the waiver was perfunctory and he was

not fully informed of his rights. Johnson essentially complains of

an error he invited himself, a situation we normally will not

tolerate. S ee United States v. Lewis

, 524 F.2d 991, 992 (5th Cir.

1975). Therefore, his contention is meritless.

Although Hughes had terminated her relationship with Martin,

and Martin agreed to waive his attorney/client privilege, the

potential still existed that Hughes would have divided loyalties.

As the Wheat court summarized:

The District Court must rec ognize a presumption in favor of

the petitioner’s counsel of choice, but that presumption may15

be overcome not only by a demonstration of actual conflict but

by a showing of serious potential conflict. The evaluation of

the facts and circumstances of each case under this standard

must be left primarily to the informed judgement of the trial

court.

Id

. at 164. It is evident that the potential for divided loyalties

here was “serious” enough to justify the district court’s exercise

of discretion in disqualifying Hughes.

VI. Johnson’s Multiple Offender Enhancement

On November 8, 1995, the government filed a Bill of

Information to establish Johnson’s prior conviction pursuant to

LA.R EV .S TAT

. 40:967(C)(2) for possession of “crack” cocaine. Based

upon this conviction, the governmen t petitioned to have Johnson

sentenced as a multiple offender under 21 U.S.C. § 851 (d)(1).

Subsequently, on November 13, 1996, Johnson was convicted and

timely filed an objection to the multiple Bill. However, the

Motion to Quash was denied and the trial court sentenced Johnson as

a multiple offender.

Johnson asserts, without citation, that his conviction for

possession of “crack” would constitute a misdemeanor in some other

states, and therefore, the government would not treat him as a

multiple offender i f his conviction had been elsewhere.

Accordingly, Johnson argues that the government has no compelling

interest under the law to enhance his sentence because he would be16

treated differently from other defendants similarly situated.

We rejected the identical argument in United States v. Kubosh

,

63 F.3d 404, 405-07 (5th Cir. 1995) vacated on other grounds

,

Bailey v. United States

, 116 S.Ct 1012 (1996), reaffirmed on these

grounds

, United States v. Kubosh 120 F.3d 47, 48 (5th Cir.

1997)(“ Kubosh II ”). In Kubosh

, we noted that in enacting the

multiple-offender provisions of the narcotics laws, “Congress was

well aware that different states classify similar crimes

differently. Congress’ deference to the states in this matter is

not irrational.” K ubosh

, 63 F. 3d at 407. Therefore, we upheld

the enhancement of Kubosh’s sentence due to his multiple offender

status despite the fact that his prior Texas convictions might have

been treated as misdemeanors in other jurisdictions. Id. at 406.

The Supreme Court vacated Kubosh in light of Baily

. On

remand, we reversed Kubosh’s conviction for carrying a firearm in

relation to a drug offense. S ee Kubosh II

, 120 F.3d at 48-9.

Nevertheless, the Kubosh II court “again reject[ed] Kubosh’s other

contentions on appeal, for the same reasons in [Kubosh].” Id. at

49. Thus, although Kubosh was vacated by the Supreme Court, we

readopted all of the reasoning of Kubosh not pertinent to Baily

,

i ncluding the refutation of Kubosh’s equal protection argum ent.

Accordingly, it is clear that Johnson was properly sentenced by the

trial court as a multiple offender.17 VII. Upward Departure in Stevenson’s Sentence

On January 10, 1997, the government filed a motion for an

upwar d sentencing departure in the sentencing of Stevenson based

upon the inadequacy of his criminal history. S ee U.S.S.G. § 4A1.3.

Stevenson’s PSI suggested a base offense level of 34 and zero

history points. The government sought to increase Stevenson’s

sentence based upon the heroin and money laundering charges filed

against him in the superseding indictment that were dismissed

following his conviction, as well as uncharged instances of heroin

trafficking and tax evasion. At the sentencing hearing the

government called a n I.R.S. special agent who summarized the

gover nment’s evidence against Stevenson as it related to each of

these alleged crimes.

After considering the government’s evidence of other crimes,

the district court granted the government’s motion for upward

departure and increased Stevenson’s criminal history from Category

I, with a guideline ran ge of 151 to 188 months, to Category III,

w ith a guideline rang of 188 to 235 months of imprisonment. The

district court sentenced Stevenson to 235 months.

Stevenson contends that it was a violation of due process for

the district court to base the upward departure on evidence of

crimes charged in the superseding indictment, but were subsequently

dismissed. He complains that the sentencing hearing permitted the18

government to prove the heroin and money laundering charges against

him utilizing a more lenient burden of proof than it would have

faced had it actually sent him to trial for those crimes. However,

in United States v. Ashburn

, 38 F.3d 803 (5th Cir. 1994) (en banc),

our Court held that a district court could de part upward under §

4A1.3 to account for conduct alleged in counts of an indictment

that were dismissed pursuant to a plea agreement. Our Court

stated that § 4A1.3 expressly authorizes the Court to consider

“prior adult criminal conduct not resulting in a conviction.” I d.

at 808 n. 14. It is clear that “if the district court offers

‘acceptable reasons’ for the departure and the departure is

reasonable” that we will affirm a departure from the guidelines.

Id. at 807. Because Stevenson’s case does not differ significantly

from Ashburn

, this Court rejects Stevenson’s due process argument.

Stevenson also asserts that the district court misapplied the

Guidelines and its upward adjustment was excessive. The district

court considered Stevenson’s tax, heroin, and money-laundering

activities to be worth one criminal history point each, for a total

criminal history of four points. The district court in upwardly

departing explicitly relied on this evidence and not upon the six

arrests that appear in his PSI. In detailing the point breakdown

the district court stated “I’m assigning one point for the IRS, one

point for the heroin activities, and one point for the money

laundering.” While as stated this mathematically would equal2 In calculating the appropriate criminal history category,

this Court has previously stated that, “we do not require the

district court to go through such a ‘ritualistic exercise’.

. .”

Ashburn , 38 F.3d at 809. However, under §4A1.1 of the Sentencing

Guidelines, it is more l ikely than not that one of the dismissed

charges would have been categorized under §4A1.1(b) had he been

convicted of the charges, thereby accounting for the fourth point.

See Id. at 808.

19 three points, both the heroin activities and money laundering

activites would have neccessary resulted in incarceration under the

guidelines, th us accounting for the additional point. S ee §

U.S .S.G. 4A1.1. Therefore, at least one additional criminal

history point (beyond the three) would have been appropriate

because Stevenson almos t certainly would have been sentenced for

this conduct had he been convicted. 2 Four criminal history points

would properly establis h the Category III criminal history for

which Stevenson was sentenced. Therefore, the district court did

not err in its upward departure.

VIII. Stevenson’s Status as a Leader of the Conspiracy

Stevenson objects to the trial court’s finding of an increase

in the base level of two points based upon Stevenson’s leadership

role in the conspiracy. S ee U.S.S.G. § 3B1.1. The district court

relied upon Stevenson’s status as the financier of the cocaine deal

to justify the enhancement. Although it may be a questionable as

to whether the financier of a conspiracy deserves a § 3B1.120

adjustment for being an organizer of that conspiracy, Stevenson has

waived this issue on appeal. Stevenson’s appellate brief notes

that he objected to the § 3B1.1 enhancement at sentencing and it

illustrates his reasons for objection, however, the brief does not

request this Court to vacate his sentence on this ground. Rather,

Stevenson states: “These factual findings are reviewed for clear

error.” Stevenson does not wish to abandon his objection to these

findin gs, but understands that his appeal lies with the

misapplication of the sentencing guidelines and the error of law in

the upward departure. Because Stevenson does not assert any

specific error arising from the two level organizer enhancement,

nor does he advance any legal argument, this Court considers this

issue waived.

Conclusion

For the foregoing reasons, we AFFIRM the district court’s decisions

in all respects regarding the convictions and sentences of all

three defendants.