United States v. Gilbert

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_____________________

No. 98-41040
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AUSBY JAMES GILBERT, also known
as Eddie Willis, also known as
Teddy Gilbert; DERRICK WAYNE BURTON,

Defendants-Appellants.
_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Texas
(1:97-CR-153-7)
_________________________________________________________________

October 21, 1999

Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges.

PER CURIAM:*

The defendants, Derrick Wayne Burton and Ausby James Gilbert

(a/k/a Teddy Gilbert), appeal their convictions and sentences for

distributing, and conspiracy to distribute, marijuana and crack

cocaine in violation of 21 U.S.C. §§ 841 & 846. Following an FBI

investigation, the defendants were indicted and convicted of

engaging in a conspiracy to distribute marijuana and crack cocaine

throughout Beaumont, Texas, between the years 1995 and 1997. The

defendants assert that their indictment was insufficient, that the

jury’s verdict was not supported by sufficient evidence, that the

*
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this opinion should not be published and is not precedent except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.
district court committed various errors during trial, and that the

district court relied on untrustworthy evidence in calculating

their sentences. Finding no error, we affirm.

I

A

On March 15, 1997, the police were called to the Beaumont

Hilton Hotel to assist hotel security in evicting the occupants of

a room for violating hotel policy. Both hotel personnel and the

police officers testified that there was smoke and a strong odor of

marijuana emanating from the room. The hotel security and the

police knocked on the door twice and identified themselves. The

police officers testified that, although there was no answer, they

could hear noises coming from inside the room consistent with the

destruction of evidence. After one failed attempt, the police were

able to enter the room and discovered it was occupied by four

adults, Roger Andrus, Michael Gerard, Steven Jones, and Derrick

Burton, and one juvenile, Linton Arceneaux. A search of the room

revealed three bags of marijuana, loose marijuana on an end table,

a bottle containing PCP, marijuana on the person of two of the

occupants, and two plastic bags containing crack cocaine cookies

weighing 365.75 grams. Additional marijuana and PCP were found in

a small sitting area adjacent to the bedroom and in the toilet.

When the police entered the hotel room, Burton was sitting on

the bed with one bag of crack cocaine cookies within arm’s reach.

A second bag of crack cocaine cookies was found between the

2
headboard and the mattress of the same bed, along with a marijuana

cigarette. Based on the quantity of crack cocaine found in the

hotel room, the FBI became involved in the investigation. It

revealed that a conspiracy to distribute crack cocaine in Beaumont,

Texas, had begun sometime in 1992. Initially, the conspiracy

involved the purchasing of crack cocaine by Roger Andrus and

Brandon Biagas from Chris Wilkes in varying amounts and

distributing it to individuals in Beaumont. Approximately in March

1994, Andrus and Biagas met Mark Cooksey. They began purchasing

crack cocaine from him in Houston, Texas, to sell in Beaumont.

Andrus and Biagas began by purchasing approximately two ounces of

cocaine each from Cooksey a week, but the purchases eventually

escalated to approximately eighteen ounces every two weeks. The

relationship with Cooksey lasted between six months and one year.

Co-defendant Marcus Ephron also participated in some of the

trips to Houston and began making purchases for himself from

Cooksey. During the final trips to Houston to purchase cocaine,

Andrus and Biagas hired John Gobert to drive a separate car to

Houston and to take the cocaine back to Beaumont with him. As a

result of the relationship with Cooksey, Andrus and Biagas met Tony

Scott and began buying cocaine from him. In approximately April

1995, the defendant, Derrick Burton, began traveling to Houston

with Andrus, Biagas, and Ephron to purchase cocaine from Cooksey

and Scott. Burton would pool his money with Ephron, and they would

3
purchase nine ounces of crack from Scott on a bi-monthly basis.

This crack was transported to Beaumont and distributed.

In approximately October of 1995, the defendant, Ausby James

Gilbert, became involved with the group. He would transport the

drugs purchased by Andrus, Biagas, Ephron, and Burton from Houston

to Beaumont in a separate car. At that time, Biagas and Andrus

were each obtaining and distributing approximately 15-18 ounces of

crack cocaine a week. Additionally, sometime between October 1995

and April 1996, Scott set up a contact person in Houston from whom

the group began purchasing marijuana.

Beginning in May 1996, Andrus and Biagas each began purchasing

one-half kilogram of crack cocaine a week from Scott in Houston.

After purchasing the powder, they would return to Beaumont, cook it

into crack for resale, and distribute it. The defendants, Burton

and Gilbert, were involved actively in distributing the crack

cocaine. This activity continued until January 1997, when Scott

went to prison.

In January 1997, Andrus and Biagas began dealing with a person

they knew as “JoJo.” Andrus and Biagas, accompanied by Ephron and

Burton, would drive to Houston, purchase the cocaine, and return

to Beaumont to distribute it. In May 1997, while still purchasing

approximately one-half kilogram of cocaine a week from “JoJo,” the

members of the group pooled their money and attempted to purchase

two kilograms of powder cocaine from Cooksey. Gilbert and Burton

were given $30,000 to purchase the cocaine and to transport it from

4
Houston to Beaumont. Cooksey met with Gilbert and Burton and took

the money, but never returned with the cocaine, telling them that

he had been robbed. After that, Andrus was out of money, but

Burton and Biagas continued to purchase cocaine from “JoJo” in the

amount of one-fourth kilogram of powder a week until June 1997. In

total, the evidence revealed that more than 200 kilograms of crack

cocaine and an unspecified amount of marijuana were distributed

between 1992 and 1997.1

Additionally, evidence was introduced at trial regarding a

traffic stop on February 7, 1997, in Chambers County, Texas (a

county between Beaumont and Houston). The evidence showed that

during a routine traffic stop, officers discovered marijuana

residue and codeine in a vehicle driven by Burton and transporting

Andrus, Ephron, and a juvenile. Further, evidence was introduced

regarding correspondence between Burton and Ephron while they were

awaiting trial on charges stemming from the traffic stop.

Specifically, a letter referencing the conspiracy addressed to

Ephron from Burton was introduced stating: “[i]f them hoes

(referring to the FBI) try to talk to you, don’t tell them

shit . . . [and] don’t be talking to nobody in here about the case,

cause they got a whole bunch of snitches in here.”2

1
The testimony at trial of several members of the conspiracy,
including Brandon Biagas, Tony Scott, Marcus Ephron, Michael
Gerard, and Steven Jones, confirm these basic facts.
2
Additional evidence was also presented of various arrests of
the parties involved in the group. Evidence was present regarding
offenses involving crack cocaine and other controlled substance

5
 B

The defendants, Burton and Gilbert, along with Roger Andrus,

Steven Jones, Michael Gerard, Marcus Ephron, and Brandon Biagas

were indicted on various charges stemming from their involvement in

the conspiracy to distribute and possess with intent to distribute

marijuana and crack cocaine.3 Specifically, Burton and Gilbert

were charged with conspiracy to distribute and possess with intent

to distribute marijuana and crack cocaine in violation of 21 U.S.C.

during the time frame of the conspiracy. One of these arrests
included the sale of 3.37 grams of cocaine base by Gilbert to an
undercover Beaumont police officer.
3
On September 24, 1997, a federal grand jury returned a
two-count indictment against Burton, Andrus, Jones, and Gerard for
conspiracy to distribute and possess with intent to distribute
marijuana and crack cocaine on or about March 1, 1997 until
March 15, 1997, in violation of 21 U.S.C. §§ 841(a)(1) & 846, and
for possession with intent to distribute crack cocaine on March 15,
1997, in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(D). A
superseding indictment was returned on October 22, 1997, against
the same four defendants, adding another defendant, Marcus Ephron,
in Count I (conspiracy) and adding a substantive count for
possession with intent to distribute crack cocaine on September 8,
1996, against Ephron (Count III). The superseding indictment also
made minor changes to the name of one of the defendants and amended
the length of the conspiracy to on or about September 8, 1996 until
about March 15, 1997. On December 18, 1997, a second superseding
indictment was returned by the same grand jury adding two
additional defendants, Ausby Gilbert and Brandon Biagas. The
indictment also enlarged the period of the conspiracy to on or
about January 1, 1996 until March 15, 1997. Gilbert was charged
with Count I of the indictment (conspiracy), and Count III
regarding possession with intent to distribute crack cocaine on
August 17, 1996. Various other changes were made to the second
superseding indictment, but none of them affected either Gilbert or
Burton.

6
§§ 841(b)(1)(A)4 & 8465 (Count I). Additionally, Burton was

4
21 U.S.C. § 841 states in relevant part:
(a)Unlawful acts
Except as authorized by this subchapter, it shall be
unlawful for any person knowingly or intentionally--
(1) to manufacture, distribute, or dispense,
or possess with intent to manufacture,
distribute, or dispense a controlled
substance; or
(2) to create, distribute, or dispense, or
possess with intent to distribute or dispense,
a counterfeit substance.
(b) Penalties
Except as otherwise provided in section 859, 860, or 861
of this title, any person who violates subsection (a) of
this section shall be sentenced as follows:
(1)(A) In the case of a violation of
subsection (a) of this section
involving--. . .
(ii) 5 kilograms or more of a
mixture or substance containing a
detectable amount of --
(I) coca leaves, except coca leaves and
extracts of cocoa leaves for which cocaine,
ecgonine, and derivatives of ecgonine or their
salts have been removed;
(II) Cocaine, its slats, optical and geometric
isomers, and salts of isomers; . . .
such person shall be sentenced to a term of
imprisonment which may not be less than 10
years or more than life and if death or
serious bodily injury results from the use of
such substance shall be not less than 20 years
or more than life, a fine not to exceed the
greater of that authorized in accordance with
the provisions of Title 18, or $4,000,000 if
the defendant is an individual . . .
(C) In the case of a controlled substance in
schedule I or II, or 1 gram of flunitrazepam,
except as provided in subparagraphs (A), (B),
and (D), such person shall be sentenced to a
term of imprisonment of not more than 20 years
and if death or serious bodily injury results
from the use of such substance to a term of
imprisonment of not less than twenty years or
more than life, a fine not to exceed the
greater of the authorized in accordance with
the provisions of Title 18, or $1,000,000 if

7
indicted for possession with intent to distribute crack cocaine on

March 15, 1997, in violation of 21 U.S.C. §§ 841(a)(1) &

841(b)(1)(A) (Count II), and Gilbert was indicted for possession

with intent to distribute crack cocaine on August 17, 1996, in

violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(C) (Count III).

All of the defendants except Burton and Gilbert entered guilty

pleas to the various charges prior to April 6, 1998. On April 7,

1998, Burton and Gilbert were tried. The jury returned a guilty

verdict against them on Count I for conspiracy to possess with

intent to distribute both marijuana and cocaine base pursuant to 21

U.S.C. § 846,6 on Count II as to Burton, and on Count III as to

Gilbert. On August 18, 1998, Burton was sentenced to 235 months

imprisonment followed by five years of supervised release. Gilbert

was sentenced to 262 months imprisonment followed by five years of

supervised release. Both defendants filed timely notices of

appeal.

C

the defendant is an individual. . . .
5
21 U.S.C. § 846 states:
Any person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to
the same penalties as those proscribed for the offense,
the commission of which was the object of the attempt or
conspiracy.
6
Burton was convicted for his role in the conspiracy from
April 1995 through July 1997. Gilbert was convicted for his role
in the conspiracy from October 1995 through July 1997.

8
 After carefully reviewing the issues on appeal raised by the

separate appellate briefs filed by Burton and Gilbert, we can

reduce the questions to ten: (1) Was the indictment insufficient

because it did not state with specificity the amounts and types of

controlled substances involved in the conspiracy; (2) Was the

evidence presented to the jury sufficient to support its verdict;

(3) Did the district court err in admitting into evidence the

testimony of Gerard and Scott in the light of defense counsel’s

invocation of Federal Rule of Evidence 615; (4) Did the district

court err in admitting into evidence the plastic bags containing

the drugs seized for the Hilton Hotel, along with a slip of paper

stating where in the room the drugs were found;7 (5) Did the

district court err in denying defense counsel an opportunity to

question Biagas regarding his plea agreement with the government;8

7
Burton asserts that the district court abused its discretion
when it admitted into evidence five plastic bags containing the
drugs seized from the Hilton Hotel on March 15, 1997. Burton
argues that because the bags contained a slip of paper indicating
where the collecting officer (Officer Roberts) found the drugs in
the hotel room, the evidence constituted hearsay and was
erroneously admitted. Officer Roberts testified that upon arriving
at the Hilton, he found marijuana throughout the room. He
testified that he gathered the drugs and put them in separate bags,
placing a piece of paper in each bag indicating where the drugs
were found. The decision of the district court to admit this
evidence did not amount to an abuse of discretion. Further, even
if the admission of the evidence was in error, it was harmless in
the light of the mountain of evidence adduced at trial against
Burton.
8
Gilbert asserts that the district court improperly prevented
his trial counsel from questioning Brandon Biagas with respect to
his plea agreement. The record indicates that the government met
its requirements under Giglio v. United States, 405 U.S. 150
(1972), by providing to the defense details of the plea agreement

9
(6) Did the district court properly prevent Biagas from responding

when he was asked to make a legal conclusion;9 (7) Did the district

court err in relying on the contents of the PSR to determine the

amount of controlled substance involved for purposes of sentencing;

(8) Were statements made by the government during closing argument

improper, thus resulting in prejudice;10 (9) Did the district court

between the government and Biagas prior to offering his testimony
into evidence. Further, the record indicates that Gilbert’s trial
counsel was given wide latitude to delve into the plea agreement,
and to elicit from Biagas the exact terms of the agreement and what
promises were made by the government in return for pleading guilty.
However, our precedent clearly establishes that the defendant’s
trial counsel is not permitted to delve into the negotiations
surrounding the plea agreement and the conversations between the
party accepting the plea agreement and his counsel. See United
States v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978)(stating
any discussions characterized as plea negotiations are inadmissible
evidence). As such, the district court was correct when it
prevented Gilbert’s attorney from questioning Biagas with respect
to the offers made to him during the plea negotiation, and as to
the advice his counsel provided to him.
9
Gilbert asserts that the district court improperly limited
his cross-examination of Biagas when it prevented him from asking
Biagas whether he thought he was involved in a “conspiracy.” The
government objected to this question because it called for a legal
conclusion by an non-expert witness. The court sustained the
objection. Based on United States v. Southers, 583 F.2d 1302 (5th
Cir. 1978), it is clear that the trial court may prevent a lay
witness from answering a question that calls for a legal
conclusion. Id. at 1306 (holding that “bank officials were
properly not permitted to give their opinion on the question of
‘intent’ and ‘defraud’” because those terms have “particular legal
construction”); See also, United States v. Baskes, 649 F.2d 471,
478 (7th Cir. 1980)(holding that if the court determines that any
question requires an understanding of the nature and scope of the
law, it may properly preclude a response that would not be helpful
to the tier of fact). Thus, given the wide latitude afforded the
district court in such matters, it did not abuse its discretion in
sustaining the government’s objection.
10
After reviewing Burton’s assignments of error, it is clear
that even if the government’s remarks were improper, they certainly

10
err by not requiring the government to honor its alleged plea

agreement with Gilbert; and (10) Did the district court err by

striking a member of the jury pool for cause.11 Finding no error,

we affirm.

III

A

would not rise to the level required to demonstrate prejudice.
Burton’s first two points of error refer to statements made by the
government in response to his trial counsel’s characterization of
evidence and regarding Burton’s veracity. Our precedent clearly
establishes that trial counsel is free in closing argument to point
out any conflicting view of the evidence. See United States v.
DeLaRosa, 911 F.2d 985, 992 (5th Cir. 1990). Burton’s third point
of error asserts that the government attempted to make the district
judge the “thirteenth juror” by making statements such as: “the
judge also charges you,” and “the judge will tell you.” Such
reference to the jury instructions by the government during its
closing argument are clearly proper.
11
Determinations as to the impartiality of a juror lie in the
discretion of the trial judge and will not be grounds for a
reversal of a conviction absent abuse of discretion. See United
States v. McCord, 695 F.2d 823, 828 (5th Cir. 1983). The following
exchange occurred between the court and juror Hanks:
Hanks: Practically my whole family is in federal jail.
Court: There’re all in . . . .
Hanks: My dad, two of my brothers, and one have gotten
out. They were sentenced for conspiracy to distribute
marijuana, cocaine, and to conspiracy to murder and to
murder after the fact.
Court: Well, I have a very basic question to ask you.
That is, can you be fair and impartial with all of that?
Hanks: Probably not. Not in a criminal case, I couldn’t.
Court: You cannot put that aside?
Hanks: No. Because in the back of my mind I’m always
gonna have these questions. A lot of stuff my family
did, they need to be there, but a lot of stuff they
didn’t do what they was charged with. And that’s gonna
be in the back of my mind . . . .
Based on this testimony, the district court did not abuse its
discretion in striking this potential juror.

11
 Burton’s first point of error is that the district court erred

in denying his objection asserting that the quantity and type of

controlled substances were not alleged as an element of the offense

under 21 U.S.C. § 841. Thus, because the type and quantity of each

controlled substance was not contained in the indictment, Burton

asserts he could not be found guilty of an “aggravated drug

amount,” but “is guilty--if at all--of the lowest grade of the

controlled substance offense.” Our precedent is clear that drug

type and quantity under 21 U.S.C. § 841 are sentencing factors and

are not elements of the offense that must be alleged in the

indictment. See United States v. Castillo, 77 F.3d 1480, 1486 (5th

Cir. 1996); United States v. Valencia, 957 F.2d 1189, 1197 (5th

Cir. 1992).12

12
Burton urges the court to reconsider these holdings in the
light of the Supreme Court’s holding in Jones v. United States, --
U.S. --, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In Jones, the
Court addressed the question of how an ambiguous federal criminal
statute should be construed. The statute was unclear in
delineating the elements of the offense from the sentencing
factors. Rather than striking the statute as unconstitutional, the
Court applied the analysis of “constitutional doubt” to construe
the statute, that is, where a given construction of a statute would
raise constitutional doubts as to its validity, the court should
adopt an alternative construction if available. In Jones, the
Court clearly limited its analysis to ambiguous statutes, and
expressly recognized “the principle that the definition of the
elements of a criminal offense is entrusted to the legislature.”
Jones, 119 S.Ct. at 1224 n.6 (citation omitted); see also, United
States v. Hudson, 7 Cranch 32, 3 L.Ed. 259 (1812); Staples v.
United States, 511 U.S. 600, 604, 114 S.Ct. 1793, 128 L.Ed.2d 608
(1994); United States v. Castillo, 179 F.3d 321, 327-28 (5th Cir.
1999)(stating that we look to the “language, structure, subject
matter, context, and history [of a statute] in determining whether
or not Congress intended for a statute to define a separate crime
or to set forth a separate sentencing factor”). Further, the Court
unequivocally stated that “our decision today does not announce any

12
 B

Both defendants argue that the evidence presented to the jury

is insufficient to uphold the conspiracy charge. Further, Burton

argues that the evidence supporting his conviction for possession

with intent to distribute crack cocaine was insufficient. Because

neither Burton nor Gilbert renewed their motions for judgment of

acquittal at the conclusion of the presentation of their evidence,

we review the sufficiency of the evidence under a plain error

standard. See United States v. Pariente, 558 F.2d 1186, (5th Cir.

1977); United States v. McCarty, 36 F.3d 1349, 1358 (5th Cir.

1994). Under the plain error standard, the court will reverse the

district court’s judgment only where a “manifest miscarriage of

justice” occurs. Id. “Such a miscarriage would exist only if the

record is devoid of evidence pointing to guilt, or . . . because

the evidence on a key element of the offense was so tenuous that a

conviction would be shocking.” Id. (citations omitted); See also,

United States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988).

Each element of the conspiracy was proved through the trial

testimony of co-conspirators Biagas, Scott, Ephron, Gerard, and

Jones. The co-conspirators testified specifically that Burton and

new principle of constitutional law, but merely interprets a
particular federal statute . . . .” Jones, 119 S.Ct. at 1228 n.11.
21 U.S.C. § 841 clearly separates the elements of the crime
(“Unlawful acts” set out in section (a)) and the sentencing factors
(“Penalties” set out in section (b)). Thus, because the statutory
ambiguity in Jones is not present in 21 U.S.C. § 841, the Court’s
holding in Jones does not call into question our holdings in
United States v. Castillo, 77 F.3d 1480, 1486 (5th Cir. 1996) and
United States v. Valencia, 957 F.2d 1189, 1197 (5th Cir. 1992).

13
Gilbert were among those who agreed to travel to Houston to

purchase crack cocaine and marijuana and to bring it back to

Beaumont for distribution.13 Additionally, Tony Scott, one of the

drug suppliers, testified with regard to drug purchases made by

Gilbert, and about Burton’s involvement in the conspiracy. Thus,

after reviewing the evidence of Burton’s and Gilbert’s involvement

in the conspiracy, we conclude that such evidence was clearly

sufficient to support the guilty verdict.

Turning to Burton’s contention that the evidence was

insufficient to support the jury’s finding on Count II of the

indictment, charging him with possession with intent to distribute

crack cocaine, we likewise find the evidence sufficient. At trial,

the government introduced evidence showing Burton’s physical

13
Specifically, Biagas testified that Burton accompanied him
and others to Houston to pick up crack cocaine and marijuana, and
that they would return to Beaumont to sell it. He also testified
with reference to Burton that he was well aware of the agreement to
commit the unlawful act. With respect to Gilbert, Biagas testified
that Gilbert began traveling to Houston in another vehicle,
agreeing that he would transport the drugs to Beaumont in that
vehicle. Biagas testified that Gilbert was compensated for these
services with drugs and money. The testimony of Ephron was very
similar to Biagas’s in almost every respect. Additionally, Ephron
testified that Burton began to purchase his own drugs on the trips,
and would sell them upon return to Beaumont.
Tony Scott, one of Burton and Gilbert’s crack cocaine
suppliers, testified for the government and corroborated all of the
co-conspirators’ statements. He testified that Burton was
definitely involved in the group that came from Beaumont. He
further testified that he knew Gilbert to be the driver for the
group that transported the drugs from Scott’s home in Houston to
Beaumont. He also testified that Gilbert made personal purchases
on numerous occasions.
Further, a letter written by Burton to Ephron and introduced
into evidence contained extensive references to the conspiracy.

14
proximity to the crack cocaine in the hotel room. Michael Gerard,

a co-conspirator who was present in the hotel room on the night in

question, stated that when he and Jones came to the hotel, and that

Andrus, Burton, and the juvenile were already present. They began

smoking marijuana and were about to dip a marijuana cigarette in

some PCP when the police arrived. Burton, who already had a bag of

crack cocaine, took a second bag from Andrus and attempted to hide

both bags behind the bed. Furthermore, Steven Jones testified that

Burton had control of the crack cocaine in the hotel room on the

night in question. Finally, Sergeant Roberts of the Narcotics Unit

of the Beaumont Police Department testified that, based on his

training and experience, 13 ounces of crack cocaine--the amount

found in the proximity of Burton--is a distributable amount,

exceeding that which is normally held for personal consumption.

Based on this testimony showing Burton’s control of the crack

cocaine and the amount of crack cocaine found in the hotel room,

the government met its evidentiary burden.

C

Both Burton and Gilbert assert that the district court erred

in allowing the testimony of government witnesses Gerard and Scott,

to which they objected under Federal Rule of Evidence 615. The

basis for this claim stems from the fact that Gerard and Scott,

along with Burton, were transported together from the prison to the

courthouse. The government asserts, and the district court found,

that Gerard and Scott only spoke in general terms about receiving

15
time cuts for their cooperation with the government in connection

with the conspiracy, and generally about the areas they were going

to testify to during Burton and Gilbert’s trial.

Federal Rule of Evidence 615 states: “At the request of a

party the court shall order witnesses excluded so that they cannot

hear the testimony of other witnesses, and it may make the order on

its own motion.” FED.R.EVID. 615. The purpose of the rule is to

“prevent witnesses from tailoring their testimony to that of

another witness’s testimony.” Palmer v. Lares, 42 F.3d 975, 980

(5th Cir. 1995)(citing United States v. Wylie, 919 F.2d 969, 976

(5th Cir. 1990)). The district court’s decision to admit testimony

in contravention of Rule 615 is reversed only if its admission was

an abuse of discretion and resulted in prejudice to the defendants.

Palmer, 42 F.3d at 980. In determining whether the admission of

testimony was an abuse of discretion, we should focus on “whether

the witness’s conversation concerned substantive aspects of the

trial and whether the court allowed opposing counsel an opportunity

to explore fully the conversation.” Id. (citations omitted).

The district court performed a lengthy evidentiary hearing on

this matter, allowing Burton and Gilbert’s trial attorneys ample

opportunity to explore the conversation fully. Further, Burton was

present during the conversation in question and was unable to

provide any testimony regarding its substance from which the

district court could find an effect on the testimony of the

witnesses. Moreover, Gerard testified during the evidentiary

16
hearing that he and Scott did not talk about the specifics of each

other’s testimony, but only in general terms. Thus, the admission

of this testimony was not an abuse of discretion.

D

With regard to their sentences, Burton and Gilbert assert that

the district court erred in relying on the information contained in

the PSR in determining the amount of controlled substances involved

because the amounts were contested and the report lacked

reliability. Burton asserts that the district court erred in

adopting the amounts of drugs as contained in the PSR because after

he contested the amounts, the district court failed to make a

detailed finding with regard to its basis for determining the

quantity of controlled substance involved.

The district court found that the amount of drugs attributed

to Burton in the PSR was calculated properly. It adopted the facts

set out in the PSR after concluding that they were supported by a

preponderance of the evidence. The court determined that because

there were no drugs seized, it would have to approximate the

quantity of controlled substance involved, as permitted by U.S.S.G.

§ 2D1.1, comment 12. Further, Burton has failed to produce any

evidence other than his bald assertions that the court erroneously

calculated the amount of controlled substances involved during the

conspiracy. Thus, we hold that the district court’s finding in

Burton’s regard was not clearly erroneous.

17
 Gilbert challenges the reliability of the PSR, arguing that

much of the evidence came from co-defendants who had cut deals with

the government. Gilbert asserts that because these parties could

not provide any receipts, telephone records, pay sheets, beeper

records, money lists, etc., which would substantiate their claim as

to the amount of controlled substances involved, their claims lack

the necessary indicia of reliability. The record indicates that

the district court conducted an inquiry concerning the information

contained in the PSR and determined it to be “correct.” Thus,

based on the record of this inquiry, we hold that the district

court’s determination as to the reliability of the information

contained in the PSR was not clearly erroneous.

E

Finally, Gilbert argues that the district court erroneously

denied his motion to compel the government to honor his plea

agreement. As a result of the government’s failure to honor the

plea agreement, he further argues that his due process rights were

violated. The plea agreement, Gilbert alleges, was entered into

during the course of three separate pretrial meetings with the

government, during which he was “under the assumption” that he was

entering into a plea bargain. On these occasions, Gilbert provided

the government with information regarding the conspiracy and signed

a proffer letter. Gilbert concedes, however, that no formal

written plea agreement was ever entered into by the parties.

18
 Assuming the existence of an oral agreement between the

government and Gilbert, Gilbert has been unable to demonstrate that

he was prejudiced as a result of the government’s failure to reduce

the alleged agreement to writing and to honor it. During the

evidentiary hearing conducted by the district court, Gilbert

presented no evidence that he suffered any prejudice. Thus,

because Gilbert has failed to demonstrate he detrimentally relied

on the alleged plea agreement to his prejudice, his claim fails.

III

In conclusion, we hold that Burton and Gilbert have failed to

demonstrate reversible error in connection with their convictions

and sentences. Thus, their convictions are in all respects

A F F I R M E D.

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