IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30831
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AARON ALEXANDER BOUTTE; DERRICK T. COTLONE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 97-CR-20034
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November 3, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Derrick T. Cotlone appeals his conviction and sentence for
conspiracy to distribute cocaine base, or crack. Aaron Alexander
Boutte appeals his convictions and sentence for conspiracy; for
distribution of crack; for unlawful use of a communication
facility, a telephone; and for being a felon in possession of a
firearm.
Cotlone argues that the evidence was insufficient to prove
his guilt beyond a reasonable doubt to the conspiracy count. We
have carefully considered Coltone’s arguments and have reviewed
*
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that this opinion should not be published and is not precedent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. 98-30831
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the appellate record. After drawing all reasonable inferences in
favor of the verdict, we conclude that a reasonable juror would
have found beyond a reasonable doubt Cotlone guilty of the crack
conspiracy. See United States v. Pineda-Ortuno, 952 F.2d 98, 102
(5th Cir. 1992); see also United States v. Maltos, 985 F.2d 743,
746 (5th Cir. 1992) (elements of drug conspiracy).
Boutte states his issue is a challenge to the sufficiency of
the evidence on the count which charged him with unlawful use of
a communication facility, a telephone, in causing or facilitating
a felony, arranging to distribute crack. Boutte’s argument
concerns purported error by the district court in permitting FBI
Special Agent Duenas to testify about the wire transfers and to
give an opinion that the transfers conveyed drug proceeds. The
argument is not germane to Boutte’s stated issue. Thus, the
sufficiency issue is deemed abandoned on appeal. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Fed. R. App. P.
28(a)(9).
Boutte argues that he was denied a fair trial by the
district court’s comments during the cross-examination of John
Briggs Becton, Boutte’s probation officer. Boutte unsuccessfully
moved for mistrial on the basis of the court’s comments. From
our review of the record as a whole, we conclude that no harm
ensued from any misstatement by the court in light of the court’s
subsequent admonishment to the jury, the court’s charge to the
jury, and Boutte’s opportunity to recall Becton to the witness
stand. See United States v. Wallace, 32 F.3d 921, 928 (5th Cir.
1994). The district court did not abuse its discretion in
No. 98-30831
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denying the motion for mistrial. See United States v. Mitchell,
166 F.3d 748, 753 (5th Cir. 1999).
Boutte challenges the court’s finding concerning the amount
of crack for which he was held responsible in determining his
sentence. We conclude that the district court’s factual finding
is not clearly erroneous. See United States v. Angulo, 927 F.2d
202, 205 (5th Cir. 1991).
AFFIRMED.