United States v. Mitchell ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 25, 2007
April 12, 2007
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 06-40335
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
KEYON LAKEITH MITCHELL; DUFORD LEE MITCHELL
Defendants - Appellants
Appeals from the United States District Court
for the Eastern District of Texas, Sherman
Before KING, GARZA, and PRADO, Circuit Judges.
KING, Circuit Judge:
Defendants-appellants Keyon LaKeith Mitchell and Duford Lee
Mitchell appeal their convictions and sentences stemming from
their involvement in a crack-cocaine conspiracy in Paris, Texas.
After a jury trial, both were convicted of one count of
conspiracy to possess with intent to distribute crack cocaine and
one count of possession of a firearm in furtherance of a drug-
trafficking crime. For the reasons that follow, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
The government presented evidence at trial that defendant-
appellant Keyon Mitchell and co-defendants Corwin Jeffrey and
Raphael Robinson1 were central figures in a crack-cocaine
conspiracy in Paris, Texas.
Keyon Mitchell’s involvement with crack cocaine began in
2002 when he started driving his friend Jeffrey to DeKalb,
Texas——Jeffrey’s own car was not reliable enough to take on the
highway——so that Jeffrey could purchase crack cocaine to sell in
Paris. Keyon Mitchell knew of the reason for the trips to
DeKalb; in fact they took his mother’s green sedan in order to
avoid detection by police. Keyon Mitchell drove Jeffrey to
DeKalb approximately ten times in 2002, and Jeffrey purchased
four to six ounces of crack cocaine on each trip.
Seeing how much money Jeffrey was making by selling crack
cocaine inspired Keyon Mitchell to start selling it himself.
Jeffrey initially sold Keyon Mitchell two ounces of crack cocaine
and showed him how to cut it up, weigh it, and repackage it into
smaller amounts for resale. Keyon Mitchell sold this quantity
quickly and then continued buying crack cocaine from Jeffrey in
two-ounce increments, at least ten times. On one occasion, Keyon
Mitchell and Jeffrey pooled their money together to purchase a
quarter-kilogram (nine ounces) in DeKalb to sell in Paris.
Later in 2002, Keyon Mitchell, Jeffrey, and Robinson began
traveling together on drug runs to Dallas, Texas. Robinson had a
supplier in Dallas named “Bowleg.” The three men went on at
1
Both Jeffrey and Robinson were indicted in this case, and
each pleaded guilty to conspiracy pursuant to a plea agreement.
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least five runs together in 2002 and 2003 to purchase crack
cocaine from “Bowleg.” On each trip, the men would drive to the
supplier’s home, Keyon Mitchell and Jeffrey would give their
money to Robinson, and Robinson would go into the home and
procure the drugs for all three of them. Each individual would
purchase four to six ounces of crack cocaine per trip. The men
would then sometimes transport the drugs back to Paris
themselves, but on other occasions they would have another
individual transport it for them in exchange for drugs. Once
back in Paris, the men would repackage the drugs in smaller
quantities and then distribute them.
Then at some point in 2003, the men found a new supplier,
Chris Culberson, who would deliver the drugs directly to them in
Paris. Culberson would not make a delivery for less than nine
ounces of crack cocaine. About ten to fifteen times over an
approximately one-year period, Culberson delivered crack cocaine
to Robinson’s home. On about five of these occasions, Robinson
agreed to purchase crack cocaine from Culberson on behalf of
Keyon Mitchell; Keyon Mitchell gave Robinson his payment in
advance, and Robinson conducted the transactions once Culberson
arrived. Generally, each man would purchase nine ounces of crack
cocaine from Culberson. They distributed the drugs they
purchased from Culberson in the Paris area.
Numerous witnesses testified that Keyon Mitchell sold them
crack cocaine. The amounts of crack that Keyon Mitchell sold
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ranged in quantity from approximately 1.5 grams to 2 ounces.2
Defendant-appellant Duford Mitchell, Keyon Mitchell’s
cousin, also sold crack cocaine in Paris during this period.
Duford Mitchell generally obtained his drugs from Keyon Mitchell;
indeed, the government alleged that Duford Mitchell was Keyon
Mitchell’s chief distributor. Numerous witnesses testified that
they either purchased crack cocaine from Duford Mitchell or saw
him selling crack cocaine in the Booth Alley area of Paris.
On October 1, 2003, Keyon Mitchell, Duford Mitchell, and
Jeffrey participated in a break-in of Robinson’s home in an
attempt to steal Robinson’s stash of crack cocaine. On that
date, Culberson had delivered an order of crack cocaine to
Robinson’s home at around 1:00 a.m. Jeffrey and Keyon Mitchell
knew that Culberson was making this delivery, and they hatched a
scheme to steal the fresh stash so that they could “make extra
money.” Keyon Mitchell recruited Duford Mitchell into the plan,
and Duford Mitchell in turn recruited Brandon Grant. Jeffrey and
Keyon Mitchell purchased four ski masks for the robbery. The
four robbers met at Keyon Mitchell’s father’s house, where they
gathered firearms, and then they went to Jeffrey’s house to pick
up black shirts. At about 2:00 a.m., Keyon Mitchell drove them
to Robinson’s home, where he stayed in the car——his arm was in a
2
One ounce is equivalent to 28.35 grams. U.S. SENTENCING
GUIDELINES MANUAL § 2D1.1 cmt. n.10, Measurement Conversion Table
(2006).
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sling, and he was concerned the sling might reveal his identity
to Robinson——while Jeffrey, Duford Mitchell, and Grant, wearing
the ski masks and black shirts, entered Robinson’s home. Duford
Mitchell and Grant also carried firearms. Jeffrey, Duford
Mitchell, and Grant scoured Robinson’s house for the crack-
cocaine stash, but they never found it, and they ultimately left
empty-handed.
Keyon Mitchell and Duford Mitchell (collectively, “the
defendants”) were charged in a two-count superseding indictment
on March 10, 2005. Count one charged them with conspiracy to
possess with intent to distribute fifty grams or more of crack
cocaine in violation of 21 U.S.C. § 846. Count two charged them
with possession of a firearm in furtherance of a drug-trafficking
crime in violation of 18 U.S.C. § 924(c)(1); count two specified
that the underlying drug-trafficking crime was possession with
intent to distribute more than 50 grams of crack cocaine.
The defendants proceeded to trial, and a jury convicted them
on both counts. They now appeal.
II. SUFFICIENCY OF THE EVIDENCE
Keyon Mitchell first maintains that there was insufficient
evidence to support his conviction on count one for conspiracy to
possess with intent to distribute fifty grams or more of crack
cocaine.
A. Standard of Review
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Because Keyon Mitchell preserved his challenge to the
sufficiency of the evidence, we review de novo the district
court’s denial of his Rule 29 motion for a judgment of acquittal.
United States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999)
(citing United States v. Payne, 99 F.3d 1273, 1278 (5th Cir.
1996)).
In reviewing the sufficiency of the evidence, we view the
evidence and the inferences drawn therefrom in the light most
favorable to the verdict, and we determine whether a rational
jury could have found the defendant guilty beyond a reasonable
doubt. Id. (citing United States v. Burton, 126 F.3d 666, 669
(5th Cir. 1997); Payne, 99 F.3d at 1278). “The evidence need not
exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, and the
jury is free to choose among reasonable constructions of the
evidence.” Id. (quoting Burton, 126 F.3d at 669-70). “Moreover,
our standard of review does not change if the evidence that
sustains the conviction is circumstantial rather than direct.”
Id. (citing Burton, 126 F.3d at 670; United States v. Cardenas, 9
F.3d 1139, 1156 (5th Cir. 1993); United States v. Bell, 678 F.2d
547, 549 n.3 (Former 5th Cir. 1982)).
B. Analysis
Count one charged that Keyon Mitchell, together with other
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named and unnamed individuals, conspired to possess with intent
to distribute fifty grams or more of a cocaine mixture or
substance containing a detectable amount of crack cocaine in
violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. To have proved
Keyon Mitchell’s guilt on count one, the government must have
established (1) the existence of an agreement between two or more
persons to possess with intent to distribute fifty grams or more
of crack cocaine, (2) that Keyon Mitchell knew of the conspiracy
and intended to join it, and (3) that he participated in the
conspiracy. United States v. Morris, 46 F.3d 410, 414-15 (5th
Cir. 1995) (citing United States v. Maseratti, 1 F.3d 330, 337
(5th Cir. 1993)). “Direct evidence of a conspiracy is
unnecessary; each element may be inferred from circumstantial
evidence.” United States v. Casilla, 20 F.3d 600, 603 (5th Cir.
1994) (citing Cardenas, 9 F.3d at 1157). “An agreement may be
inferred from a ‘concert of action.’” Id. (citing Cardenas, 9
F.3d at 1157; United States v. Natel, 812 F.2d 937, 940 (5th Cir.
1987)).
Keyon Mitchell contends that the government failed to
present sufficient evidence of an agreement between the alleged
co-conspirators. He argues that the government proved merely
that there were numerous buyer/seller relationships, not that
there was a conspiracy. He concedes that there was sufficient
evidence that he and other defendants trafficked in crack
cocaine, but he asserts that the traffickers were acting
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independently rather than in concert. He points to the testimony
of alleged co-conspirators that each controlled what he sold,
where he sold, and the prices he charged, and that no profits
were shared between them.
But the evidence amply supports a finding that Keyon
Mitchell entered into an agreement with Jeffrey and Robinson to
purchase crack cocaine together for distribution in Paris. On
numerous occasions, the three men agreed to drive to Dallas
together, they agreed to have Robinson conduct the transaction
with “Bowleg” on behalf of all three of them, and they agreed on
a method of transporting the drugs back to Paris for
distribution. And each trip involved the purchase of at least
twelve ounces of crack cocaine in total (four ounces each), which
is significantly greater than 50 grams. Even in the absence of
any formal agreement to violate the narcotics laws, the jury
certainly could have inferred such an agreement from the
individuals’ concert of action. We therefore conclude that there
was sufficient evidence from which a jury could have found beyond
a reasonable doubt that Keyon Mitchell conspired to possess with
intent to distribute more than fifty grams of crack cocaine.
III. MATERIAL VARIANCE
A. Standard of Review
A material variance occurs “when the proof at trial depicts
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a scenario that differs materially from the scenario charged in
the indictment but does not modify an essential element of the
charged offense.” United States v. Delgado, 401 F.3d 290, 295
(5th Cir. 2005). We determine whether a variance occurred by
comparing the evidence presented at trial with the language of
the indictment. See United States v. Medina, 161 F.3d 867, 872
(5th Cir. 1998). If a variance did occur, we reverse only if the
variance prejudiced the defendant’s substantial rights. See
Delgado, 401 F.3d at 295; Medina, 161 F.3d at 872. In
determining whether a material variance resulted in prejudice, we
employ a harmless-error analysis. United States v. Ramirez, 145
F.3d 345, 351 (5th Cir. 1998); United States v. Dean, 59 F.3d
1479, 1491 (5th Cir. 1995).
The question whether the evidence establishes the existence
of one conspiracy (as alleged in the indictment) or multiple
conspiracies is a fact question within the jury’s province.
United States v. Morrow, 177 F.3d 272, 291 (5th Cir. 1999) (per
curiam) (citing United States v. Morgan, 117 F.3d 849, 858 (5th
Cir. 1997)). We will affirm the jury’s finding that the
government proved a single conspiracy “unless the evidence and
all reasonable inferences, examined in the light most favorable
to the government, would preclude reasonable jurors from finding
a single conspiracy beyond a reasonable doubt.” Morris, 46 F.3d
at 415 (quoting United States v. DeVarona, 872 F.2d 114, 118 (5th
Cir. 1989)); see also Morrow, 177 F.3d at 291 (quoting Morgan,
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117 F.3d at 858). Even where the evidence points to multiple
conspiracies rather than the single conspiracy charged in the
indictment, the variance does not affect the defendant’s
substantial rights as long as the government establishes the
defendant’s involvement in at least one of the proved
conspiracies. Morrow, 177 F.3d at 291.
B. Count One (Conspiracy)
Keyon Mitchell contends that even if there was sufficient
evidence to prove a conspiracy, the evidence points to multiple
conspiracies, not the single conspiracy charged in count one. He
argues that a material variance between the charged conspiracy
and the proof at trial requires reversal of his conviction.
“The principal considerations in counting the number of
conspiracies are (1) the existence of a common goal; (2) the
nature of the scheme; and (3) the overlapping of the participants
in the various dealings.” Id. (citing Morgan, 117 F.3d at 858);
see also Morris, 46 F.3d at 415 (citing United States v.
Richerson, 833 F.2d 1147, 1153 (5th Cir. 1987)).
This court has broadly defined the criterion of a common
goal in counting conspiracies. Morrow, 177 F.3d at 291; see also
Morris, 46 F.3d at 415 (“In fact, one panel has remarked that
‘given these broad “common goals” the common objective test may
have become a mere matter of semantics.’” (quoting Richerson, 833
F.2d at 1153)). The jury could reasonably have concluded that
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the common goal of the charged conspiracy in this case was to
derive personal gain from the sale of crack cocaine in Paris.
Under the second prong, wherein we examine the nature of the
scheme, “the existence of a single conspiracy will be inferred
where the activities of one aspect of the scheme are necessary or
advantageous to the success of another aspect or to the overall
success of the venture, where there are several parts inherent in
a larger common plan.” Morris, 46 F.3d at 416 (citing United
States v. Elam, 678 F.2d 1234, 1246 (5th Cir. 1982)). The
evidence supports an inference that the joint, coordinated
purchases of crack cocaine from “Bowleg” in Dallas and from
Culberson in Paris were necessary or at least advantageous for
the co-conspirators’ sale of crack cocaine in Paris.
The third prong “examines the interrelationships among the
various participants in the conspiracy. The more interconnected
the various relationships are, the more likely there is a single
conspiracy.” Id. But “there is no requirement that every member
must participate in every transaction to find a single
conspiracy. Parties who knowingly participate with core
conspirators to achieve a common goal may be members of an
overall conspiracy.” Id. (quoting Richerson, 833 F.2d at 1154(footnote omitted)). The evidence does not seem to evince
significant overlap between the participants in the alleged
single conspiracy. Below the top level of Keyon Mitchell,
Jeffrey, and Robinson, there was little evidence of interaction
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among the distributors.
But we need not determine conclusively whether there was a
variance (i.e., how many conspiracies were proved) because even
assuming arguendo that Keyon Mitchell has demonstrated that there
was a variance, the variance does not necessitate reversal since
he has not demonstrated that it affected his substantial rights.
The most common prejudice to a substantial right caused by a
variance in a conspiracy trial is transference of guilt from one
co-defendant to another in a trial with multiple defendants. Id.
at 417. Thus, “where the indictment alleges a single conspiracy
and the evidence established each defendant’s participation in at
least one conspiracy a defendant’s substantial rights are
affected only if the defendant can establish reversible error
under general principles of joinder and severance.” Id. (quoting
United States v. Jensen, 41 F.3d 946, 956 (5th Cir. 1994));
United States v. Faulkner, 17 F.3d 745, 762 (5th Cir. 1994); see
also Morrow, 177 F.3d at 291. Keyon Mitchell has not
demonstrated error under the rules of joinder and severance;
indeed, he acknowledges that his trial was initially properly
joined with Duford Mitchell’s.3 Furthermore, any risk of
prejudice was minimized by the district court’s instruction to
the jury that it must acquit if it were to find that a defendant
3
Keyon Mitchell does argue that the district court should
have severed the trial after the trial began because of an
incident that occurred after the first day of trial. But we
reject this argument in Part V.
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was not a member of the charged conspiracy, even if it were to
find that the defendant was a member of some other conspiracy.
See Morrow, 177 F.3d at 291-92; Morris, 46 F.3d at 417-18.
B. Count Two (Firearms)
Both Keyon Mitchell and Duford Mitchell contend that there
was a material variance between count two of the indictment,
which charged them with possession of a firearm in furtherance of
a drug-trafficking crime, and the government’s proof at trial.
We conclude that although there was a variance, it was not
prejudicial.
Count two charged that “[o]n or about October 1, 2003,” the
defendants violated 18 U.S.C. § 924(c)(1)4 by “knowingly
possess[ing] a firearm in furtherance of a drug trafficking
crime . . . , to wit: possession with intent to distribute more
than 50 grams or more [sic] of a cocaine mixture or substance
containing a detectable amount of cocaine base, namely, crack
cocaine, a Schedule II controlled substance.”
The defendants assert that there was a material variance
because the government never proved that they committed the drug-
trafficking crime named in the indictment, possession with intent
4
Section 924(c)(1)(A) makes it unlawful for “any person
[to], during and in relation to any crime of violence or drug
trafficking crime . . . for which the person may be prosecuted in
a court of the United States, use[] or carr[y] a firearm, or
[to], in furtherance of any such crime, possess[] a firearm.”
The term “drug-trafficking crime” includes “any felony punishable
under the Controlled Substances Act (21 U.S.C. 801 et seq.).” 18
U.S.C. § 924(c)(2).
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to distribute, since there was no evidence they actually
possessed crack cocaine on October 1, 2003. The defendants point
to the fact that although they participated in a break-in of
Robinson’s home in an effort to steal his crack cocaine, they
never found it, and therefore they never possessed it. The
defendants also maintain that there was another, different
material variance because the government argued that it could
prove the defendants’ guilt by relying on other incidents——apart
from the October 1, 2003, robbery——when the defendants possessed
firearms and crack cocaine together.
We will consider the second alleged variance first. At the
hearing on the defendants’ Rule 29 motion for a judgment of
acquittal after the close of the government’s case-in-chief, the
defendants pointed out that the government had not proved they
actually possessed crack cocaine on October 1, 2003. The
government responded, inter alia, that since the indictment used
the non-exclusive language “[o]n or about,” the government could
“just take out the date of October 1” and point to occasions of
firearms possession at any time during the course of the
conspiracy. The district court appears to have agreed with the
government’s argument; the court denied the Rule 29 motion,
reasoning that “generally speaking, proof of any date before the
return of the indictment . . . and within the statute of
limitations is sufficient.”
The defendants assert in essence that to the extent the
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government relied on other occasions of firearms possession apart
from the events of October 1, 2003, it prosecuted them for a
crime other than the one charged in the indictment. Although the
defendants do not specifically describe what occurred below as a
“constructive amendment,” they in essence argue that the
indictment was constructively amended. “A constructive amendment
occurs when the government changes its theory during trial so as
to urge the jury to convict on a basis broader than that charged
in the indictment, or when the government is allowed to prove ‘an
essential element of the crime on an alternative basis permitted
by the statute but not charged in the indictment.’” United
States v. Robles-Vertiz, 155 F.3d 725, 728 (5th Cir. 1998)
(quoting United States v. Salvatore, 110 F.3d 1131, 1145 (5th
Cir. 1997)).
The problem with the defendants’ argument, however, is that
the government did not change its theory at trial since it did
not rely on occurrences of other firearms possession in its
argument to the jury. The government’s argument that it could
“just take out the date of October 1” from the indictment and
rely on other occurrences of firearms possession was an argument
before the judge in order to defeat the Rule 29 motion. The
government’s argument to the jury with respect to count two
focused almost exclusively on the October 1, 2003, robbery.5 The
5
The government did mention during closing argument that
both defendants possessed firearms during the time frame of the
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government argued to the jury that there actually was crack
cocaine present in Robinson’s house (hidden in a trash-can liner)
but that the robbers had simply not looked in the right place.
Furthermore, the court did not specifically instruct the jury
that it could look at occurrences of firearms possession apart
from October 1, 2003; the jury charge simply included this
circuit’s pattern “on or about” instruction.6 We therefore
conclude that the indictment was not constructively amended.
We do agree, however, that there was a variance between the
language of count two and the evidence presented at trial:
although the indictment charged that the underlying drug-
trafficking crime was possession with intent to distribute more
than fifty grams of crack cocaine, the defendants never actually
possessed crack cocaine during the course of the robbery since
conspiracy, but it did so in only one sentence as to each
defendant. The government’s argument for count two cannot fairly
be characterized as relying on occurrences of firearms possession
apart from the date alleged in the indictment.
6
The jury instructions provided:
You will note that the Superseding
Indictment charges that the offenses were
committed between certain dates or [sic] on or
about a specified date. The government does
not have to prove that the crimes were
committed on those exact dates, so long as the
government proves beyond a reasonable doubt
that the defendants committed the crimes on
dates reasonably near the dates stated in the
Superseding Indictment.
Cf. FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (CRIMINAL) § 1.18 (2001).
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they found no drugs at Robinson’s house. Instead, the government
proved that the defendants possessed firearms in furtherance of a
different drug-trafficking crime: attempted possession with
intent to distribute crack cocaine.7
Yet we do not reverse the defendants’ convictions because
the variance did not prejudice the defendants’ rights. Rule
31(c) of the Federal Rules of Criminal Procedure permits
conviction of a lesser included offense of the charged offense
even though the lesser offense was not charged in the indictment.
See FED. R. CRIM. P. 31(c)(1) (“A defendant may be found guilty
of . . . an offense necessarily included in the offense
charged.”). Possession of a firearm in furtherance of attempted
7
Attempted possession with intent to distribute is
proscribed by 21 U.S.C. § 846, which provides: “Any person who
attempts or conspires to commit any offense defined in [21 U.S.C.
§§ 801-904] shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.” To establish attempt to
possess with intent to distribute, the government must prove (1)
that the defendants acted with the kind of culpability required
for the crime of possession with intent to distribute and (2)
that the defendants engaged in conduct constituting a substantial
step toward commission of the crime. See, e.g., United States v.
Redd, 355 F.3d 866, 872-73 (5th Cir. 2003).
The government proved overwhelmingly that the defendants
attempted to possess with intent to distribute more than fifty
grams of crack cocaine. First, the government proved at trial
that the defendants intended to take Robinson’s stash of crack
cocaine, which was at least nine ounces, so that they could “make
extra money.” And second, the government proved that the
defendants took substantial steps toward commission of the crime;
for example, Keyon Mitchell procured firearms for the robbery and
drove his cohorts to and from Robinson’s house, and Duford
Mitchell actually entered Robinson’s house and searched for the
crack cocaine.
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possession with intent to distribute is a lesser included offense
of possession of a firearm in furtherance of the crime of
completed possession with intent to distribute. See United
States v. Gaskin, 364 F.3d 438, 453 (2d Cir. 2004) (“[A]ttempted
drug possession in violation of 21 U.S.C. § 846 is simply a
lesser-included offense of the drug possession proscribed by
§ 841(a)(1).”); see also United States v. Remigio, 767 F.2d 730,
733 (10th Cir. 1985) (“The crime of attempt is a lesser included
offense of the substantive crime.”). As the Sixth Circuit stated
in United States v. Solorio, “[t]he concept of variance is
designed to prevent the prosecution from convicting the defendant
of a different offense, not a lesser variation on the charged
offense.” 337 F.3d 580, 590 (6th Cir. 2003) (holding that
conviction of a lesser included offense did not constitute
prejudicial variance because such a conviction was permitted
under Rule 31(c) and therefore the variance did not affect the
defendant’s ability to defend himself).
Moreover, because the facts overwhelmingly support
conviction of the lesser offense, we may modify the judgment to
reflect such a conviction without affecting the defendants’
substantial rights. See United States v. Castro-Trevino, 464
F.3d 536, 543 (5th Cir. 2006) (modifying judgment to reflect
offense of attempt where the defendant pleaded guilty to
completed offense but the facts reflected that the defendant
unsuccessfully attempted to commit the offense).
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Accordingly, we decline to reverse the defendants’
convictions on count two. But we do modify the judgment to
reflect convictions for the lesser offense of possession of a
firearm in furtherance of the drug-trafficking crime of attempted
possession with intent to distribute more than fifty grams of
crack cocaine.
IV. RULE 404(b) EVIDENCE
Duford Mitchell argues that the district court improperly
permitted testimony that he pulled a gun on another individual
during the time frame of the conspiracy.
This court reviews a district court’s decision to admit Rule
404(b) evidence in a criminal case under a heightened abuse-of-
discretion standard. United States v. Jackson, 339 F.3d 349, 354
(5th Cir. 2003) (citing United States v. Wisenbaker, 14 F.3d
1022, 1028 (5th Cir. 1994)). Even if the district court abused
its discretion in admitting the Rule 404(b) evidence, we do not
reverse if the error was harmless. See FED. R. CRIM. P. 52(a);
Jackson, 339 F.3d at 354 (citing United States v. Torres, 114
F.3d 520, 526 (5th Cir. 1997)).
Evidence of other crimes, wrongs, or acts is admissible “as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” FED. R.
EVID. 404(b). The admissibility of evidence pursuant to Rule
404(b) is analyzed in a two-step inquiry. “First, it must be
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determined that the extrinsic offense evidence is relevant to an
issue other than the defendant’s character. Second, the evidence
must possess probative value that is not substantially outweighed
by its undue prejudice and must meet the other requirements of
[R]ule 403.” United States v. Beechum, 582 F.2d 898, 911 (5th
Cir. 1978) (en banc).
Robinson testified that during the course of the conspiracy,
he saw Duford Mitchell pull a gun on Tommy Johnson on an occasion
when Keyon Mitchell and Johnson got into a physical fight.
Johnson also testified that Duford Mitchell pulled a gun on him
once. The district court permitted the testimony, over Duford
Mitchell’s objection, only for the purpose of showing that Duford
Mitchell possessed a firearm during the conspiracy, reasoning
that his firearm possession was relevant to his intent. The
court instructed the jury that it could consider the fact that
Duford Mitchell possessed a firearm in order to determine whether
Duford Mitchell committed the crime of conspiracy as alleged in
count one knowingly and intentionally.8 But the court also
instructed the jury to disregard the portion of the testimony
regarding Duford Mitchell’s pulling a gun on someone else because
it related only to a separate, unalleged crime.
8
Duford Mitchell’s challenge is exclusively to the
admission of the testimony that he pulled a gun on Johnson; he
does not challenge (and we express no opinion on) the court’s
admission of the evidence of firearm possession (and the related
instruction) for the purpose of showing intent on count one.
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Duford Mitchell asserts in conclusory terms that the
testimony about pulling a gun on another individual is irrelevant
to both the conspiracy and firearms charges, that it was admitted
solely to prove his character, and that the probative value of
the evidence is substantially outweighed by its prejudice.
Assuming arguendo that Mitchell’s assertions are correct, any
error is harmless. “One of the dangers inherent in the admission
of extrinsic offense evidence is that the jury may convict the
defendant not for the offense charged but for the extrinsic
offense.” United States v. Anderson, 933 F.2d 1261, 1272 (5th
Cir. 1991) (quoting United States v. Beechum, 582 F.2d 898 (5th
Cir. 1978) (en banc)). But the district court’s limiting
instruction sufficiently minimized this risk. See, e.g., United
States v. Adair, 436 F.3d 520, 527 (5th Cir.), cert. denied, 126
S. Ct. 2306 (2006). Moreover, there was ample evidence of Duford
Mitchell’s guilt on both counts apart from the disputed
testimony.
V. MOTIONS FOR SEVERANCE AND MISTRIAL
Keyon Mitchell maintains that the district court should have
granted his mid-trial motions for severance and mistrial because
of testimony that Duford Mitchell assaulted a government witness
during the trial. We disagree.
We review the district court’s denial of motions for
severance and mistrial for abuse of discretion. See United
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States v. Neal, 27 F.3d 1035, 1045 (5th Cir. 1994) (severance);
United States v. Mitchell, 166 F.3d 748, 751 (5th Cir. 1999)
(mistrial).
Under Rule 14(a) of the Federal Rules of Criminal Procedure,
if the joinder of defendants for trial appears to prejudice a
defendant, the court may sever the defendants’ trials or provide
any other relief that justice requires. FED. R. CRIM. P. 14(a).
To demonstrate that the court abused its discretion in denying
the motion for severance, “the defendant bears the burden of
showing specific and compelling prejudice that resulted in an
unfair trial, and such prejudice must be of a type against which
the trial court was unable to afford protection.” Morrow, 177
F.3d at 290 (internal quotation marks omitted) (quoting United
States v. Faulkner, 17 F.3d 745, 759 (5th Cir. 1994)). Severance
is proper “only if there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants,
or prevent the jury from making a reliable judgment about guilt
or innocence.” Zafiro v. United States, 506 U.S. 534, 539
(1993). “When the risk of prejudice is high, a district court is
more likely to determine that separate trials are necessary,
but . . . less drastic measures, such as limiting instructions,
often will suffice to cure any risk of prejudice.” Id. (citing
Richardson v. Marsh, 481 U.S. 200, 211 (1987)).
Cornelius Sims, who pleaded guilty to conspiracy in this
case, testified for the government. Sims testified, inter alia,
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that after the first day of trial, Duford Mitchell attacked him
while they were in a room together at the jail where they were
being held during the trial. According to Sims, Duford Mitchell
said, “It’s just me and you now,” called Sims “a snitch,” and
began repeatedly striking Sims in the head. The government also
introduced photographs of Sims after the fight showing a knot on
Sims’s head. The district court permitted the testimony and
admitted the photographs over Keyon Mitchell’s objection. After
Sims’s testimony, the district court instructed the jury that it
could consider the testimony regarding the altercation “in
connection with the charges that have been brought against Duford
Mitchell” but that the jury should “keep the evidence separate as
to Duford Mitchell and Keyon Mitchell,” as “[t]hat evidence has
no bearing on Keyon Mitchell.” Several other inmates who
witnessed the altercation also testified about it, and the court
reminded the jury after their testimony that it could consider
the testimony against Duford Mitchell alone and not against Keyon
Mitchell.
Keyon Mitchell asserts that Sims was a key witness against
him, and he opines that the assault greatly prejudiced him
because it bolstered Sims’s credibility and caused him to be
sympathetic to the jury. He argues that it was error for the
trial court to have continued with the joint trial after the
assault.
We conclude that Keyon Mitchell has not made the specific
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showing of sufficiently compelling prejudice required to
demonstrate an abuse of discretion. The most damaging witnesses
against Keyon Mitchell were Jeffrey and Robinson, not Sims.
There were numerous other witnesses who testified that Keyon
Mitchell sold them crack cocaine. Even if the assault on Sims
had prejudiced Keyon Mitchell, the trial court did not abuse its
discretion by determining that the prejudice could be adequately
minimized by limiting instructions, obviating the need for
severance or a new trial.
VI. FORECLOSED ARGUMENTS
Duford Mitchell also presents other arguments that he
concedes have been foreclosed by precedents of this court and of
the Supreme Court. He makes these arguments solely to preserve
them for further review.
First, he argues that the district court erred by enhancing
his United States Sentencing Guidelines offense level based on
facts not found by a jury but rather found by a judge by a
preponderance of the evidence. This includes an objection to the
court’s determination of his criminal-history category. As he
concedes, the argument is foreclosed by United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005).
Second, he argues that the district court erred by relying
upon hearsay statements in the presentence report without giving
him an opportunity to confront the individuals who made the
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statements. As he concedes, this argument is foreclosed by
United States v. Navarro, 169 F.3d 228, 236 (5th Cir. 1999)
(“[T]here is no Confrontation Clause right at sentencing . . . .”
(citing Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir. 1996), rev’d
on other grounds, 521 U.S. 320 (1997))).
VII. CONCLUSION
For the foregoing reasons, we AFFIRM the defendants’
convictions on count one, we MODIFY the convictions on count two
to reflect convictions for possession of a firearm in furtherance
of attempted possession with intent to distribute more than fifty
grams of crack cocaine, we AFFIRM AS MODIFIED the convictions on
count two, and we AFFIRM the defendants’ sentences.
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