* 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that this opinion should not be published and is not precedent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. 95-10842

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARK ANTHONY CLARK, also known as

Kevin Frank Carter,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:95-CR-19-C

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March 10, 1998

Before DUHE’, DeMOSS and DENNIS, Circuit Judges.

PER CURIAM:*

Mark Anthony Clark was convicted by a jury of conspiracy,

possession with intent to distribute narcotics, using and

carrying a firearm in relation to drug trafficking, and being a

felon in possession of a firearm. Clark contends that: 1) the

district court erred by denying in part his motion to suppress;

2) the evidence is not sufficient to sustain his conspiracy

conviction; 3) the district court erred by failing to sequester
No. 95-10842

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government witnesses; 4) his conviction for using and carrying a

firearm under 18 U.S.C. § 924(c)(1) must be reversed in light of

the Supreme Court’s decision in Bailey v. United States, 516 U.S.

137 (1995); and 5) the Government and the district court failed

to comply with the requirements of 21 U.S.C. §§ 851(a) and (b). 

Our review of the record and the arguments and authorities

convince us that, with one exception, no reversible error was

committed.

Because the warrantless stop and search of Clark’s truck was

supported by probable cause, the district court did not err by

denying in part Clark’s motion to suppress on this basis. See

United States v. Reed, 26 F.3d 523, 528 (5th Cir. 1994). Because

the record is not devoid of evidence pointing to Clark’s guilt on

the conspiracy count, Clark’s sufficiency challenge fails. See

United States v. McCarty, 36 F.3d 1349, 1358 (5th Cir. 1994). As

Clark did not request that the district court sequester any

witness pursuant to Fed. R. Evid. 615, he fails to establish that

the district court’s failure to do so amounts to plain error. 

See United States v. Calverley, 37 F.3d 160, 162-63 (5th Cir.

1994) (en banc). Clark’s suggestion that the Government failed

to comply with § 851(a) is refuted by the record. His contention

that the district court failed to follow the procedures mandated

by § 851(b), if true, amounts only to harmless error. See United

States v. Fragoso, 978 F.2d 896, 902-03 (5th Cir. 1992).
No. 95-10842

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Clark’s assertion that his conviction under § 924(c)(1) must

be reversed is supported by this court’s decision in United

States v. Wilson, 116 F.3d 1066, 1090-91 (5th Cir. 1997), cert.

denied, 118 S. Ct. 703 (1998). Although the evidence may support

Clark’s conviction under the “carry” prong of § 924(c)(1),

because the jury may have rendered a guilty verdict because of

the liberal pre-Bailey instructions on what constituted “use” of

a firearm in relation to drug trafficking, Clark’s conviction on

this count is REVERSED. The case is REMANDED to the district

court for a new trial on the “carry” prong of the statute. See

id. In all other aspects, Clark’s conviction is AFFIRMED.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.