IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30835

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BILLY LAMPTON, AKA SHORTY; MICHAEL JACKSON, AKA LOW DOWN; CORTNEY

WALKER, AKA MOON, AKA COURTNEY WALKER,

Defendants-Appellants.

Appeals from the United States District Court

for the Eastern District of Louisiana

October 19, 1998

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

CARL E. STEWART, Circuit Judge:

Defendants-appellants Billy Lampton, Michael Jackson, and Cortney Walker challenge their

convictions and sentences. For the reasons set forth below, we AFFIRM.

F ACTUAL & P ROCEDURAL B ACKGROUND

The F.B.I. began an investigation of the appellants and thirteen of their associates when an

informant revealed that they were distributing large quantities of cocaine, heroin, and marijuana. On1 This charge was voluntarily dismissed by the government prior to trial.

2 February 22, 1996, the government obtained an order for the interception of wire communications

over a telephone located at Lampton’s and Walker’s residence. The next day the wire tap began. On

April 4, 1996, the government obtained authority to wire tap another of Lampton’s residences after

the co-defendants discontinued using the first telephone. During the course of the investigation, over

4,000 calls were recorded. One hundred and eleven of these calls would be later played for the jury.

On May 1, 1996, the government obtained a searc h warrant from a federal magistrate to

conduct searches of the co-defendants’ homes and vehicles. Numerous firearms, drug paraphernalia,

drug ledgers, large amounts of cash, drug laboratory equipment, and quantities of cocaine and

marijuana were recovered. The government had also been extensively using cooperating witnesses,

one of which directly purchased heroin from Lampton on two occasions while being video and audio

taped by the F.B.I.

On September 27, 1996, a nine count superseding indic t ment was filed against the three

appellants and eleven of the co-defendants in which all were charged with conspiracy to distribute

quantities of heroin, marijuana, cocaine base, and cocaine hydrochloride in violation of 21 U.S.C. §

841(a)(1). Additionally, Lampton was charged separately and individually with distribution of heroin

in violation of 21 U.S.C. § 841(1)(1), with use of a firearm in relation to the commission of a drug

trafficking offense in violation of 18 U.S.C. § 924(c)(1) 1

, with fraudulent use of a telecommunications

instrument in violation of 18 U.S.C. § 1029(a)(5), and with operating a continuing criminal enterprise

in violation of 21 U.S.C. § 848.

Trial for appellants, along with two co-defendants, began on February 3, 1997. It ended in

a mistrial on February 13, 1997. On March 17, 1997, the second trial began. During the second trial,3

on March 2 0, t he government learned, through another prisoner in custody with Lampton, that

Lampton wanted to bri

be a specific juror. The prisoner, who became a cooperating witness, led

Lampton to believe he could make contact with the juror and that the juror would be amenable to a

bribe. Lampton then spoke on the telephone with a person whom he believed was the juror, but was

actually an F.B.I. agent recording the conversation. Lampton la t er pled guilty to obstruction of

justice. When the trial court learned of the incident, it became concerned that other jurors may have

been the target of Lampton’s efforts, and conducted a voir dire of each juror in his chambers with one

counsel for the government and one counsel for the defense present (Lampton’s counsel). The district

court eventually concluded that no jury tampering had occurred, and continued with the trial.

On March 28, 1997, the jury convicted Lampton, Walker and Jackson on all counts charged

and remaining in the superseding indictment. One of the other co-defendants was acquitted on one

charge but convicted on another. The remaining co-defendant was found not guilty on all charges.

On June 11, 1997, the court conducted a hearing on appellants’ motion for new trial. The motion

was based on the appellants’ allegations that the district court’s and the government’s investigation

as to whether Lampton’s attempt to bribe a juro r t ainted the entire jury or prejudiced his codefendants. The district court denied the motion after hearing from the juror whom Lampton targeted

to bribe, the informant who revealed to the government Lampton’s intention to bribe a juror, and an

Assistant U.S. Attorney who was assigned to inves t igat e and successfully prosecuted Lampton’s

obstruction of justice offe nse. No ne of the defendants were present during this hearing, although

their counsel were. In addition, Lampton’s counsel left the hearing because he was ill when the court

had called a lunch recess. The attorney had been present during the juror-witness’ testimony, and part4

of the informant’s testimony, but missed the remainder of t he info rmant’s testimony and all of the

government attorney’s testimony. The district court continued with the hearing, and eventually

denied appellants’ motion.

On August 7, 1997, the appellants were sentenced. Jackson was sen tenced to a term of

imprisonment of 360 months, while Lampton and Walker received life sentences. All appellants t imely

filed notices of appeal.

D ISCUSSION

Defendants-appellants raise several joint ch a llenges to their convictions, as well as several

individual challenges. We initially discuss each joint challenge, and t hen pro ceed to discuss each

defendant-appellant’s individual challenges in order of Lampton, Jackson, and Walker.

I.

Walker and Lampton jointly contend that their absence during the hearing of the new trial

motion violated their F ED

. R. C RIM

. P. 43 and constitutional rights. Lampton further argues that his

counsel’s absence after the lunch recess during the evi dentiary hearing also violates his Sixth

Amendment right regarding the presence of counsel. We review these legal questions d e novo

. See,

e.g., Associated Metals & Minera ls Co rp. v. Alexander’s Unity MV , 41 F.3d 1007, 1010 (5 t h Cir.

1995).

We do not agree with either of these arguments. Assuming a rguendo that Rule 43 speaks to

a defendant’s presence at a motion hearing for a new trial, we have interpreted Rule 43 to require the

defendan t s show that their actual presence could have aided in their defense. S ee United States v.

Gradsky

, 434 F.2d 880, 883 (5 th Cir. 1971). Neither appellant can make this showing. The motion2 Lampton attempts to distinguish Gradsky on the grounds that in that case, counsel was present

to vitiate the absence of the defendant. He thus argues his counsel’s partial absence here exacerbates

the statutory and constitutional problems associated with his own absence. However, Lampton does

not show how the hearing would have been conducted differently had he or his counsel been present.

He still cannot how he was harmed in this case. S ee Gradsky

, 434 F.2d at 884 (5 th Cir. 1971) (noting

that a Rule 43 error can be disregarded if harmless).

5 was based on the appellants’ allegations that the district court’s and the government’s investigation

as to whether Lampt o n’s attempt to bribe a juror tainted the entire jury or prejudiced his codefendants. The district court denied the motion after hearing from the juror whom Lampton targeted

to bribe, the informant who revealed to the government Lampton’s intention to bribe a juror, and an

Ass ist ant U.S. Attorney who was assigned to investigate and successfully prosecuted Lampton’s

o bstruction of justice offense. Neither appellant argues there was error in the subst ance of the

evidentiary hearing. Nor were the factual issues addressed at the po st -t rial motion hearing ones in

which the defendants could testify. Neither appellant offers any way, in fact, in which their presence

could have assisted in their defense, and we refuse to reverse on this ground. 2

Nor was t heir presence required by the Constitution. Under the Due Process Clause, “a

defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical

to its outcom e if his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer

,

482 U.S. 730, 745 (1987). As we already have noted, the appellants’ presence was not required for

a fair resolution of the issues addressed at the new trial motion hearing. See, e.g., United States v.

Sanchez

, 917 F.2d 607, 619 (1 st Cir. 1990) (where issues addressed at hearing on motion for new trial

would not have been affected by input of defendant, due process did not require presence of

defendant at hearing).6

We also cannot agree with Lampton’s argument that his counsel’s decision to leave

immediately prior to the lunch recess constitutes reversible error. The district court did not exclude

Lampton’s counsel from being present; rather, he voluntarily absented himself from the courtroom

after advising the court he was ill. Lampton’s counsel never asked the proceedings be postponed. All

other defendants’ counsel stay ed and participated throughout the hearing, and Lampton’s counsel was

present for the testimony of the critical witness, the targeted juror herself. Lampton’s counsel did not

ask a single question during this proceeding, and in fact indicated the opposite when he observed to

the court that his questions would be basically the same as his co-counsel’s. While as a general matter

counsel should be prese nt t o represent a defendant’s interest to the court, this case presents the

unusual situation in which his absence did not cause his client any harm. Cf. Satterwhite v. Texas

, 486

U.S. 249, 258 (1988) (applying harmless error rule in Sixth Amendment context). We therefore reject

Lampton’s argument to the contrary.

II.

Wal ker and Lampton argue that the district court erred when it imposed upon both a

mandatory life sentence under 21 U.S.C. § 851(a)(2). The prosecution had soug ht to enhance

defendants’ sentences on the theory that they were mult iple offenders. As part of the procedure in

a dvancing t his request, § 851(a)(1) requires the prosecution to file with the district court a bill of

information containing records of prior convictions. However, the next subsection provides that:

[a]n information may not be filed under this section if the increased punishment which

may be imposed is imprisonment for a term in excess of three years unless the person

either waived or was afforded prosecution by indictment for the offense for which such

increased punishment may be imposed

.7

Id. at § 851( a)(2) (emphasis added). Walker and Lampton jointly argue that § 851(a)(2), and in

particular the emphasized language, requires that the prior offenses that the government uses to seek

a sentence enhancement have been charged by indictment and not by a bill of information. In making

this argument, appellants rely upon United States v. Collado , 106 F.3d 1097, 1100 (2 nd Cir. 1997)

in which the Second Circuit held that the language emphasized above was ambiguous because it was

unclear whether the word “offense” in it referred to the instant offense or the prior offense. On the

one hand, the court found particularly interesting Collado’s observation that as all fe deral fel ony

narcotics prosecutions proceed by indictment, the requirement of § 851(a)(2) that the prosecution

be by indictment would be surplusage if it referred to the present federal narcotics prosecution. S ee

id. at 1103. The only way to make meaning of the language, Collado argued, was to interpret the

word “offense” to refer t o prior offenses, and to require prior offenses to have been charged by

indictment. On the other hand, the court observed that this construction had never been adopted by

another Circuit, and in fact several other Circuits had found the opposite. In the end, the court saw

neither the government’s nor the defendant’s interpretations as decisive, and decided the statute was

ambiguous. As a result of this ambiguity, the Second Circuit held that the rule of lenity applied and

that the conviction had to be reversed.

Appellants make the same argument to this Court. They concluded that beca use the pri or

offenses upon which the government relied in seeking their increased punishment were charged by

information rather than indictment, § 851(a)(2) should have barred the prosecution from filing a bill

of information in the present case and thus prevented from seeking a penalty enhancement. C ollado3 Jackson also argues that the district court erred in considering a 1980 sexual battery conviction

when determining if he was a career criminal. The district court was right. There was evidence in the

record that Jackson was engaged in illegal, relevant conduct during the 1980's. Section 4A1.2(e)(2)

of the Sentencing Guidelines says that a prior sentence can be counted for purposes of career criminal

status if it was “imposed within ten years of the defendant’s commencement of the instant offense.”

Application Note 8 of that Section clarifies that the phrase “commencement of the instant offense”

includes relevant conduct. Thus, the district court was correct in considering Jackson’s 1980 sexual

battery conviction.

8 is no longer good law, however. In United States v. Ortiz , 143 F.3d 728, 729 (2 nd Cir. 1998), cert.

denied, sub nom Nieves v. United States

, No. 98-5543, 1998 WL 467715 (Oct. 5, 1998), the Second

Circuit overturned Collado

. The Second Circuit revised it s co nclusion in C ollado because the

government provided new information. In particular, the government informed the court that “at the

time § 851(a)(2) was formulated in 1970, federal felony narcotics violations were pro secutable

without indictment in the Virgin Islands, and the Panama Canal Zone.” Id. at 731. Without this crucial

underpinning, the court found that it was “far more sensible in terms of the structure and purpose of

the statute that the grand jury guarantee refers to the instant felony offense.” We agree with the

Second Circuit’s reasoning in Oritz , and find the appellants’ arguments unpersuasive.

III.

Both Lampton and Jackson challenge the district court’s findings as to their relevant conduct

as it related to their activity with illegal drugs. 3 Findings as to relevant conduct are reviewed under

a clearly erroneous standard. S ee, e.g., United States v. Kimbrough

, 69 F.3d 723, 733 (5 t h Cir.

1995). Part of these findings were made with the assistance of the Presentence Report. Appellants

claim that the information contained in that report is unreliable hearsay because it was based entirely

on interviews with F.B.I. agents who testified about what various actors in this case said, and was9

co rro bo rated only by a cooperating witness who later recanted on the stand during sentencing.

Information that is relied upon to impose a sentence must have “some minimal indicium of reliabilit y.”

United States v. Fulbright

, 804 F.2d 847, 853 (5 th Cir. 1986). At sentencing, the burden is on the

government to prove the quality of drugs by a preponderance of the evidence. See United States v.

Gaytan

, 74 F.3d 545, 558 (5 th Cir. 1996), cert. denied, sub nom Gandara-Granillo v. United States

,

117 S.Ct. 77 (1996).

After a careful examination of the record, we cannot agree with appellants. First, the F.B.I.

agent testified that she was able to verify the cooperating witness’s reliabilit y through other witnesses

and her own personal observation. Second, a very persuasive argument can be made in this case that

the witness who later recanted did so not because of any reckoning with truthfulness, but rather out

of an effort to help the defendants avoid being punished for their misdeeds. Looking at the record,

we cannot say the distric t co urt clearly erred in determining that the false recant did not cast

significant doubt on the reliabilit y of the information provided to agents over a year previous. Finally,

we emphasize that the Presentence Report was not the only information upon which the district court

relied in making its determinations as to the appellants’ relevant conduct. It also had two government

witnesses during sent encing, in addition to the many witnesses at trial, who testified as to various

amounts of narcotics in appellants’ possession and their drug dealing activities. It also had several

statements made by some of defendants as to their drug activities and amounts of illegal substances.

In sum, the record establishes that the government met its burden of establishing this relevant conduct

by a preponderance of the evidence.

IV.10

In addition to his joint challenges, Lampton contends that the district court’s procedures when

investigating the jury tampering allegations were in error. Specifically, he claims that his counsel’s

presence in the voir dire proceeding indicated to the jury that he was the one guilty of jury tampering,

and that this inference is grounds for mistrial. Paradoxically, he also claims that he should have been

included in the proceeding to invest igat e, and that the failure to do violates F E D

. R. C RIM

. P. 43.

Lampton also contends that the trial court’s questions to the jurors prejudiced the jury in that they

indicted that he was responsible for jury tampering, and should have been grounds for mistrial.

We review issues concerning jurors under an abuse of discretion standard. See United States

v. Denman , 100 F.3d 399 (5 th Cir. 1996), cert. denied . 117 S.Ct. 1256 (1997). The failure to grant

a mistrial is also reviewed for abuse of discretion. See United States v. Ramirez

, 963 F.3d693, 700

(5 th Cir. 1992). We review appellant’s question of law as to whether Rule 43 requires his presence

at the jury tampering voir dire of the jurors de novo

. S ee, e.g., United States v. Smith

, 31 F.3d 469,

473 (7 th Cir. 1994).

We reject each of Lampton’s arguments. During the trial, the government learned, through

another prisoner in custody with Lampton, that he wanted to bribe a specific juror. The prisoner, who

became a cooperating witness, led Lampton to believe he could make contact with the juror and that

the juror would be amenable to a bribe. Lampton then spoke on the telephone with a person whom

he believed was the juror, but was actually an F.B.I. agent recording the conversation. Lampton later

pled guilty to obstruction of justice. When the trial court learned of the incident, it became concerned

that other jurors may have been the target of Lampton’s efforts, and conducted a voir dire of each

juror in his chambers with one counsel for the government and one counsel for the defense present11

(Lampton’s counsel). None of the questions asked of the jurors suggested in any way that Lampton

was involved in the attempted bribery; rather, the district court simply asked whether any party had

contacted them. The district court ev ent ually co ncluded no other juror had been contacted, and

continued with the remainder of the trial.

We do not find that the district court abused its discretion in any of the ways Lampton

suggests. Our review of the quest ions asked of the jurors leads us to conclude that the court

successfully avoided indicating which party had attempted to make contact with the jury. Moreover,

the district court did not abuse its discretion in bringing in an equal number of members from the two

sides to participate in the voir dire of the jurors. Finally, assuming a rguendo that Rule 43 speaks to

a defendant’s presence at a voir dire proceeding into charges of jury tampering, appellant has made

no showing that his actual presence would have aided in his defense. See United States v. Gradsky

,

434 F.2d 880, 883 (5 th Cir. 1971). We therefore AFFIRM Lampton’s conviction and sentence.

V.

In addition to his joint challenges discussed earlier, Jackson submits two individual challenges

to his conviction. We deal with each in turn.

A.

Jackson first argues that the district court erred in denying his motion to suppress evidence

obtained from a search of his residence and his car. The government obtained a search warrant for

Jackson’s home. It did not, however, obtain a search warrant for his car. Jackson contends that the12

search warrant made for the search of his residence was not supported by probable cause, and that

the warrantless search of his car violated his Fourth Amendment rights because no exigent

circumstances existed to justify the search. See, e.g., United States v. McKeever , 5 F.3d 863, 864

(5 th Cir. 1993). We discuss each search in turn.

1.

We employ a two-step process for reviewing a district court’s denial of a motion to suppress

when a search warrant is involved. See, e.g., United States v. Pena-Rodriguez

, 110 F.3d 1120, 1129-

1130 (5 th Cir. 1997), cert. denied , 118 S.Ct. 72 (1997). First, we determine whether the good faith

exception to the exclusionary rule announced in United States v. Leon

, 468 U.S. 897 (1984), applies.

See id. If so, we end our analysis and affirm the district court ’s decisio n t o deny the motion to

suppress. See, e.g.

, Unit ed States v. Satterwhi te , 980 F.2d 317, 320 (5 t h Cir. 1992). If not, we

proceed to the second step, in which we “ensure that the magistrate had a substantial basis for

. . .

concluding that probable cause existed.” See Pena-Rodriguez

, 110 F.3d at 1129-30 (quoting Illino is

v. Gates , 462 U.S. 238-39 (1983)).

There is no suggestion that the good fait h except io n applies in this case, so we proceed

directly to the second step. Jackson avers that the judge did not have a substantial basis fo r

concluding that probable cause existed to search his home. In particular, Jacks on first argues that

much of the affidavit contains uncorroborated testimony from a confidential informant. He next

argues that the information contained in the affidavit does not establish a nexus between narcotics and

Jackson’s residence. We disagree with both contentions. The affidavit set forth that the confidential4 Jackson’s objection to the cellular phone consisted only of the complaint that the evidence was

being introduced improperly to adduce evidence of “other crimes.” To the extent that Jackson appeals

the district court’s decision to overrule this objection and admit the cellular phone, we affirm. The

government did not use the cellular phone as an example of another crime committed by Jackson, but

rather as “tools of the trade” evidence in support of the charged offense of conspiracy. In particular,

the superseding indictment stated that Jackson possessed and utilized a cellular phone in order for he

and his co-conspirators to arrange illegal drug transactions.

13 informant had proven reliable in the past. Moreover, the confidential informant clearly established a

nexus between narcoti cs and Jackson’s home by describing that Jackson used soft drink vending

machines to distribute illegal drugs and that these vending machines were known by the confidential

informant to be kept at Jackson’s residence. We thus reject Jackson’s argument and find the search

warrant of his home to have been justified by probable cause.

2.

Jackson also complains that the government’s warrantless search of his vehicle violated the

Fourth Amendment, and that the evidence obtained from the vehicle’s search, specifically a cloned

c ellular phone, should be suppressed. However, he waived this argument by failing to object in

district court to the introduction of the cellular phone on the ground that the search was illegal. 4 S ee

United States v. Chavez-Valencia

, 116 F.3d 127, 129 (5 th Cir. 1997) (holding that failure to raise

motion to suppress evidence at the district court waives argument on appeal), cert. denied

, 118 S.Ct.

325 (1997); see also F ED

. R. C RIM

. P. 12(b)(3) (requiring that motions to suppress “must” be raised

in pre-trial motion). Jackson makes no showing of cause as to why he should be granted relief from

the waiver. See F ED

. R. C RIM

. P. 12(f) (noting that failure to raise 12(b)(3) pre-trial motion “shall14

constitute waiver thereof, but the court for cause shown may grant reli ef fro m the waiver”). We

therefore decline to reach the merits of his argument.

B.

Jackson’s second individual basis for appeal is that the district court abused its discretion

when it allowed an F.B.I. agent to give expert testimony as to the identification of voices recorded

by wire tapping telephone calls to and from co-defendant Lampton. Driving this objection are the

complaints that the prosecution admitted it had misident ified some of the parties on these phone calls,

and that the F.B.I. used regular agents to make the identifications rat her t han using the voice

identification experts it has on staff. Jackson concludes that the district court could have cured these

problems by granting his motion to sever his trial from that of Lampton, and that the district court’s

refusal to do so was an abuse of discretion.

F ED

. R. E VID

. 901(b)(5) provides that “[i]dentification of a voice, whether heard firsthand or

through mechanical or ele ct ro nic t ransmission or recording, [can be testified to] by opinion based

upon hearing the voice at any time under circumstances connecting it with the alleged speaker.” Here,

an F.B.I. agent testified that she had heard Jackson’s voice in prior personal contact with him. This

is sufficient to meet the requirements of Rule 901(b)(5). See, e.g., United States v. Cuesta

, 597 F.2d

903, 915 (5 th Cir. 1979) (holding Rule 901(b)(5) requires only that the witness have “some familiarit y

with the voice which he identifies,” and that in that case prior conversations with the witnesses were

enough to satisfy this Rule). Jackson’s argument that there was misidentification simply goes to the15

evidence’s weight, not to admissibilit y. As such, the dist rict court did not abuse its discretion.

Jackson’s sentence, then, is AFFIRMED.

VI.

In addition to his joint challenges discussed earlier, Walker submits three individual

challenges to his conviction. We deal with each in turn.

A.

Walker contends that the prosecution impermissibly commented on his failure to testify in

violation of his Fifth Amendment guarantee against a compelled self-incrimination. He points to a

statement prosecution made in closing arguments:

Speaking about the government trying to hide things, by the way, ladie s and

gentlemen, the government provided every bit of evidence to the defense, they can

present whatever they want. They have an opportunity, they don’t have to, but they

have the opportunity.

Following this statement, defense counsel for Walker objected on the ground that Walker was not

obliged to present any evidence. The trial judge agreed, and reminded the jury that, as he had told

them in voir dire, that the defendants were not required to prove anything and that the government

must prove their guilt beyond a reasonable doubt.

It is well-settled that “[t]he Fifth Amendment prohibits a trial judge, a prosecutor, or a witness

from commenting upon a defendant’s failure to testify in a criminal trial.” United States v. Rocha

, 916

F.2d 219, 232 (5 th Cir. 1990) (citing Griffin v. California

, 380 U.S. 609 (1965)). “The test for16

determining if a constitutional violation has occurred is whether ‘the language used was manifestly

inten ded o r was of such character that the jury would naturally and necessarily take it to be a

comment on the failure of the accused to testify.” Id. (quoting Davis v. United States

, 357 F.2d 438,

441 (5 th Cir. 1966)). Even if one of these is true, however, we will not reverse unless the improper

comment had “a clear effect on the jury.” Id. (citing United States v. Rochan , 563 F.2d 1246, 1250

(5 th Cir. 1977)).

Even if we assume arguendo that the prosecution’s statements were such that the jury would

naturally and necessarily take it to be a comment on the failure of the accused to testify, there is no

need to reverse Walker’s conviction. Walker makes no showing that the prosecution’s statement

had any effect whatsoever o n t he jury. Moreover, the trial judge specifically instructed the jury,

immediately following the prosecutor’s remarks, that the burden of proof rested on the government

and that the defense had no such equivalent burden. Such an instr uct ion cures any alleged harm

resulting from the prosecu tor’s rem arks. S ee, e.g., United States v. Montoya-Ortiz

, 7 F.3d 1171,

1179 (5 th Cir. 1993) (holding that the instruction “[t]he defendant has no burden at all, and the jury

will recognize that. The defendant does not have to prove his innocence . . .” cured the prosecution’s

remark that was alleged to have violated the Fifth Amendment).

B.

Walker next contends that the government did not prove beyond a reasonable doubt that he

had two prior felo ny co nvict ions in state court. The district court used the two convictions as the

basis to enhance Walker’s sentence as a mult iple offender pursu ant to 21 U.S.C. § 851(c)(1).17

Walker’s objection to the government’s evidence is that the government did not prove beyond a

reasonable doubt that the person twice convicted in state court was Walker.

We disagree. The govern ment entered: (1) certified copies of Walker’s two state arrest

registers, corresponding to his two state convictions; (2) fingerprint exemplars from both state arrest

registers; (3) certified copies of both state convictions; (4) and Walker’s fingerprint exemplars from

the instant offense maintained by the U.S. Marshal Service. The prosecution also called a supervisor

from the state probation and parole office who testified that the birthdates list ed for both state

convictions contained in her official file for Walker matched the date of birth recorded with the U.S.

Marshal Service for Walker. The prosecution also submitted the expert testimony of a police

fingerpri nt expert , who testified that the arrestee’s fingerprints on the two state arrest registers

matched Walker’s federal fingerprint card. We find that this evidence established beyond a reasonable

doubt that the two prior state convictions used to enhance Walker’s sentence were in fact his

convictions and not that of someone else.

C.

Finally, Walker contends that the district court considered his protected ple a negoti ati on

statements, made in connection with an aborted plea negotiation, when computing his sentence. We

cannot agree. The district court specifically stated that Wal ker’s sentence was not based on any

information obtained during plea negotiations but rather was based on the evidence adduced at trial

and the testimony of witnesses called during th e sentencing hearing. Therefore, the district court

committed no error. Walker’s conviction and sentence is thus AFFIRMED.18 C ONCLUSION

For the foregoing reasons, we AFFIRM each appellants’ conviction and sentence.