* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-31287

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PAUL M. BYOUS,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 96-CR-104

- - - - - - - - - -

September 18, 1997

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Paul Byous appeals his jury conviction and sentencing for

conspiracy to possess with intent to distribute cocaine

hydrochloride and possession with intent to distribute cocaine

base. He argues that 1) his indictment was based on perjured

testimony and the district court erred in not dismissing the

indictment, 2) the district court erred in admitting extrinsic

crime evidence of Byous’ 1988 guilty plea conviction, and 3) the

district court incorrectly interpreted 21 U.S.C. § 851(a)(2), and
No. 96-31287

-2-

erred in enhancing his sentence.

Prosecutorial errors before the grand jury can be considered

harmless error. Bank of Nova Scotia v. United States, 487 U.S.

250, 256 (1988). Notwithstanding the alleged perjured testimony,

there was a substantial amount of testimony before the grand jury

that Byous conspired to distribute cocaine and possessed crack

cocaine with intent to distribute. Even assuming perjury was

committed before the grand jury, such testimony did not

substantially influence the grand jury’s decision to indict. Id.

Because Byous placed at issue intent and knowledge in his

defense, his 1988 conviction for possession of cocaine base was

probative to issues other than his character. The probative

value of the evidence was not substantially outweighed by the

evidence’s prejudicial effect. Nor was the prior conviction too

temporally remote. United States v. Beechum, 582 F.2d 898, 911

(5th Cir. 1978)(en banc); United States v. Zanabria, 74 F.3d

590, 592 (5th Cir. 1995). 

While this case presents an issue of first impression as to

whether, under 21 U.S.C. § 851(a)(2), the prior conviction used

by the Government to enhance a sentence must be from a waiver of

or prosecution by indictment, we need not decide the issue under

our plain error review. Even if the district court erred in

enhancing Byous’ sentence, such error was not plain, given that

the circuits are split as to the interpretation of § 851(a)(2)

and the error was not clear under current law. See United States
No. 96-31287

-3-

v. Espinosa, 827 F.2d 604, 616-17 (9th Cir. 1990); United States

v. Collado, 106 F.3d 1097, 1103 (2nd Cir. 1997); see also United

States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en

banc). Furthermore, our decision to not correct the error, if

plain, would not “seriously affect the fairness, integrity, or

public reputation of judicial proceedings,” given that Byous was

sentenced within the statutory sentencing range. Calverley, 37

F.3d at 162-64; see also United States v. Martinez-Cortez, 988

F.2d 1408, 1415-16 (5th Cir. 1993).

AFFIRMED.