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that this opinion should not be published and is not precedent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