United States v. Bowens

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 17, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 01-60490

UNITED STATES OF AMERICA,

Plaintiff - Appellee

versus

MACK ARTHUR BOWENS; WILLIE HAMPTON,

Defendants - Appellants

Appeals from the United States District Court for the
Northern District of Mississippi

( 2:00-CR-094-P-B )

Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

After a two-week joint trial, a jury convicted Mack Arthur

Bowens and Willie Hampton of various drug distribution and

possession charges and Bowens alone of obstructing justice. The

convictions resulted from sting operations conducted by the Tunica

County Sheriff’s Office, the Mississippi Bureau of Narcotics

(“MBN”), and the Federal Bureau of Investigation. Defendants

contend that their convictions are the result of a corrupt Tunica

*
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this opinion should not be published and is not precedent except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.
County Sheriff, Lieutenant Jerome Hudson, whom Defendants contend

launched a vendetta against Bowens and Hampton because Bowens

exposed one of Lieutenant Hudson’s friends as a corrupt FBI agent.

Defendants present nineteen claims of error. In Part I we

explain the factual and procedural background relevant to both

appeals. Part II addresses claims of error common to Bowens and

Hampton. Part III addresses claims of error unique to Bowens.

Part IV addresses claims of error unique to Hampton. Finally, Part

V addresses Defendants’ claim of cumulative error.

We find no reversible error in the convictions of Bowens and

Hampton.

I

The story begins in 1999 with a sting operation of the Tunica

County Sheriff’s Office, the MBN, and the FBI. The sting used

informants to make controlled buys of crack cocaine from Bowens and

Hampton while under surveillance. Lieutenant Hudson of Tunica

County, along with James Jones of the MBN and Special Agent Tom

Bohlke of the FBI, recruited George Butler, who had previously been

arrested for possession of crack cocaine, to make a controlled buy

from Bowens. Government witnesses testified that on December 15,

1999, Butler went to a trailer occupied by Bowens and Jake Cotton,

an associate of Bowens. Butler was given marked money and wore a

wire. Lieutenant Hudson testified that Bowens’ voice is heard on

the audiotape telling Butler that his police source said Butler was

2
not a good customer. Bowens then said, “I can’t go direct with

you.” Cotton and Butler then stepped outside the trailer, where

Butler paid Cotton with the marked money. After circling the block

at Cotton’s request, Cotton gave Butler the crack cocaine. Butler

returned to the agents and gave the drugs to them. Cotton was

later arrested and testified at Bowens’ trial that the crack

cocaine belonged to Bowens and that Bowens told him to sell the

drugs to Butler.

Butler made another controlled buy from Bowens and Cotton

later that day. Bowens told Butler to see Cotton, who was at a

different location. Butler drove to Cotton’s location, and Cotton

told Butler that he would go get the drugs from Bowens. At

Cotton’s request Butler circled the block and then bought crack

from Cotton. Butler returned to the agents and gave the drugs to

them.

In March 2000, Tunica police arrested Ruby Gooden on drug

charges. She told Lieutenant Hudson that she would help him

prosecute her drug sources if he helped her with her charges.

Although no formal agreement was made, Gooden identified various

sources of her drugs, including Bowens and Hampton, and stated that

she often bought crack from them. On March 20, 2000, Gooden made

a controlled buy of crack from Hampton at Hampton’s sister’s house.

Lieutenant Hudson testified that the voice on the audiotape was

Hampton’s, that Hampton’s car was at the house where the drug deal

3
occurred, and that Hampton’s sister owned the house.

On March 29, 2000, Gooden made a controlled buy of crack from

Bowens. She went to Bowens and Cotton’s trailer, bought the crack

cocaine, and returned to the agents. Bowens’ car was outside the

trailer at the time of the buy. She testified that Bowens laid the

crack on a counter, she picked it up and replaced it with the buy

money, and that he picked up the buy money. She told the agents

that Bowens was in the trailer cutting a large amount of crack on

a dinner plate.

Based on the above controlled buys, the agents sought and

executed multiple search warrants. The first warrant issued for

Hampton’s sister’s house, where Gooden and Butler made the

controlled buys from Hampton. The search occurred a few hours

after Gooden’s March 20 buy. The agents found the marked buy money

in Hampton’s right front pocket. They also found 7 grams of crack

cocaine, plastic bags, razors, scales, and a cutting agent in a

bedroom containing Hampton’s personal effects.

The agents next obtained a second search warrant for a garage

owned by Hampton. The agents found a car inside the garage that

Hampton had been seen driving in August 1999, and documents in the

car showed Hampton as the owner. The agents found 7.5 pounds of

cocaine inside the car, along with triple-beam scales, a bullet

proof vest, wrapping material, and coffee grounds.

After Gooden’s controlled buy from Bowens on March 29, 2000,

4
the agents obtained a search warrant for the trailer. As they

approached the trailer, the agents saw Bowens leaving in his car.

They pulled him over and found marked buy money in his pockets.

Inside the trailer, the agents seized a dinner plate that tested

positive for trace amounts of crack cocaine.

Bowens and Hampton were arrested in March 2000. Bowens was

indicted on May 25, 2000, for (1) conspiracy to distribute and

possess with intent to distribute in excess of 500 grams of cocaine

(Count One); (2) distribution of crack cocaine, aided and abetted

by Jack Cotton, at approximately 10:00 a.m. on December 15, 1999

(Count Two); (3) distribution of crack cocaine, aided and abetted

by Jack Cotton, at approximately 3:00 p.m. on December 15, 1999

(Count Three); (4) distribution of crack cocaine on March 29, 2000

(Count Seven); (5) possession with intent to distribute in excess

of 5 grams of crack cocaine (Count Eight); and (6) corruptly

endeavoring to obstruct justice by causing a government witness to

sign a false and fraudulent affidavit in an effort to undermine

testimony (Count Nine). The government indicted Hampton of (1)

conspiracy to distribute and possess with intent to distribute in

excess of 500 grams of cocaine (Count One); (2) distribution in

excess of 5 grams of crack cocaine on March 20, 2000 (Count Four);

(3) possession with intent to distribute crack cocaine on March 20,

2000 (Count Five); (4) possession with intent to distribute in

excess of 50 grams of crack cocaine and in excess of 500 grams of

5
cocaine hydrocholoride (Count Six).

Bowens and Hampton filed motions to sever their trials, to

suppress evidence resulting from various search warrants, and for

judgment of acquittal. They also asserted a claim of outrageous

government conduct. The court denied the motions following a

hearing and rejected the claim of outrageous government conduct.

At trial, Gooden’s testimony focused on controlled buys and

previous purchases from Bowens and Hampton. Her testimony was

consistent with Lieutenant Hudson’s regarding their details. She

admitted that she was addicted to crack and that she had bought

crack from Hampton and Bowens since 1996. She also discussed

exculpatory documents that Bowens allegedly forced her to sign; she

testified that she signed three documents stating that Lieutenant

Hudson asked her to help him set up Bowens, but that the documents

were not true. She signed them at the request of Bowens’

girlfriend and other friends out of fear. During cross-

examination, she refuted the allegation that she was asked to plant

crack cocaine on both defendants. She stated that no one asked her

to do so.

Butler corroborated Lieutenant Hudson’s testimony about the

two controlled buys from Bowens. He also testified that he bought

crack from Bowens and Cotton on previous occasions from the same

trailer. Finally, Butler testified that a week after the buys

Bowens asked him to go for a ride with him, which he did.

6
According to Butler, Bowens drove him to the country, accused him

of being a snitch and wearing a wire; that he pointed a handgun at

him and said, “I’ll kill you if you set me up.”

Cotton testified that he pled guilty to aiding and abetting

Bowens in distributing drugs and that the crack he sold Butler on

December 15, 1999, and to Gooden on March 29, 2000, was Bowens’

crack. He confirmed that Bowens was cutting crack in the trailer

on March 29. He stated that Bowens sold a large amount of crack

from the trailer in the past and that he was present when Bowens

bought crack from Hampton for distribution. He testified that

although he had signed an exculpatory document for Bowens, the

document was false. Finally, he denied that he planted the crack

on Bowens to aid the investigation.

The government’s primary witness was Lieutenant Hudson, who

recounted the events of the controlled buys and the searches.

Although Bowens and Hampton challenged Lieutenant Hudson’s

testimony charging a vendetta resulting from Bowens’ exposure of a

corrupt FBI agent, several other agents corroborated Lieutenant

Hudson’s testimony.

First, James Jones of the MBN confirmed Lieutenant Hudson and

Butler’s story regarding Butler’s controlled buys from Bowens. He

also confirmed the testimony regarding Gooden’s controlled buys

from Hampton and Bowens. Jones was present during the Hampton

search and confirmed that the buy money was recovered from Hampton

7
and that 7 grams of crack, scales, and other drug paraphernalia

were found in a bedroom containing Hampton’s belongings. He also

confirmed that Gooden stated in debriefing after the buy that

Bowens was in the trailer cutting crack on a dinner plate and that

the search of Bowens and the trailer yielded a dinner plate with

trace amounts of cocaine, the buy money, and $975 cash.

Second, FBI Agent Bohlke refuted the defendants’ claims that

the Tunica County Sheriff’s Department seized Hampton’s car in

August 1999 and later planted it and the cocaine in the garage to

be found during the search. Agent Bohlke testified that he was

involved with the sting operation starting in December 1999 and

that he had no knowledge of any drugs being planted.

Third, Fire Chief Koonce testified that he lived across the

street from Hampton’s garage and that he saw Hampton leaving the

garage in his car at the end of November or the beginning of

December. Koonce assisted the police in opening the garage to

execute the warrant, and he testified that the garage had a strong

chemical smell.

Finally, the government called various people who testified

that they bought drugs from Bowens and Hampton in the past.

Clarence Dorsey testified that he bought crack from Hampton at

Hampton’s sister’s house on multiple occasions. Melvin Shipp

testified that he was a previous drug dealer, that he bought crack

from Hampton in the past, and that he sold drugs with Bowens in the

8
past. Bowens produced an exculpatory document that Shipp signed,

but Shipp testified that the section of the document stating that

Bowens had never dealt drugs was added after he signed it. Kevin

Murphy testified that while in jail with Bowens, Bowens tried to

get him to sign a document to affirm facts that he knew nothing

about. Similarly, Danny Thomas testified that Bowens tried to get

him to sign a document incriminating all the witnesses called by

the government, but he refused to sign it because it was false.

Thomas and another witness, Willie Wade, testified that they bought

crack from Bowens in the trailer in the past. These witnesses

corroborated details testified to by Lieutenant Hudson, Butler, and

Gooden, including the unique shape of the crack sold by Hampton.

Bowens did not testify at trial. Hampton testified that he

was in Memphis or had just left Memphis at the time of the alleged

controlled buy. He also testified that his car was impounded by

the police and remained in their possession when they searched the

vehicle and found the drugs. In response, the government called

Fernando Esco, who testified that, contrary to his testimony at

trial, Hampton told him that the County returned his car to him.

Bowens and Hampton’s primary argument below and on appeal

hinges on the credibility of Lieutenant Hudson and the informants

used by the agents. Appellants allege that Bowens previously

exposed Special Agent Tatum, an FBI agent, as having forged his

signature on a waiver of rights. Tatum was eventually convicted.

9
Bowens claims that because Tatum was a good friend of Lieutenant

Hudson, Hudson framed him. The government claims that Lieutenant

Hudson did not even know of Tatum’s prosecution and resulting

conviction until after completing the investigation of Bowens.

Hampton does not explain why Lieutenant Hudson’s vendetta against

Bowens extends to him.

Defendants also sought to introduce evidence regarding

Lieutenant Hudson’s conduct while working at a different police

department as evidence of his untruthful character and as evidence

of opportunity to frame them. Lieutenant Hudson worked under

Police Chief Ronnie White in the Greenwood, Mississippi Police

Department. Chief White fired Lieutenant Hudson in 1996, nearly

four years before he began the investigation of Bowens and Hampton

in Tunica. Chief White would have testified that Lieutenant Hudson

fraudulently attempted to cash a payroll check twice and that he

failed to timely return funds provided for a controlled buy. After

firing Lieutenant Hudson, Chief White found a large amount of

illegal drugs in Lieutenant Hudson’s police locker. Lieutenant

Hudson’s explanation was that he failed to timely check the drugs

into the crime lab or to the station’s evidence locker. No charges

were ever brought against Lieutenant Hudson for his actions.

Lieutenant Hudson testified that he was fired because he complained

that the Police Chief was ignoring corrupt police conduct. The

district court excluded Chief White’s testimony.

10
 After the two-week jury trial, the jury found Bowens and

Hampton guilty of all charges except conspiracy. The court

sentenced Bowens to 40 years of incarceration for Counts Two,

Three, Seven, and Eight, and 10 years of incarceration for Count

Nine, running concurrently. The court sentenced Hampton to life in

prison without parole for Counts Four and Six, and 30 years of

incarceration for Count Five, running concurrently.

Defendants moved for a new trial based on evidence discovered

after trial showing that Lieutenant Hudson improperly held Gooden

in jail during the investigation and throughout the trial.

Defendants contend that Lieutenant Hudson did so in order to coerce

her testimony. They claim that Lieutenant Hudson altered an arrest

warrant to indicate that Gooden was still under arrest during trial

when the charge had in fact been dismissed. They also contend that

Lieutenant Hudson sent a letter to the Tunica Sheriff’s Department

explaining Gooden was in the Federal Witness Protection Program and

was not to be visited by anyone, when in fact she was in the

Federal Emergency Witness Assistance Program. The court denied the

motion without a hearing.

II

Bowens and Hampton raise several common claims of error. They

claim (1) that the district court abused its discretion by

excluding evidence that could establish Lieutenant Hudson’s motive

to frame them; (2) that the government committed Brady violations

11
by suppressing material, favorable evidence; and (3) that the

district court abused its discretion by denying their motion to

sever the joint prosecution.

A

Bowens and Hampton claim that many of the court’s evidentiary

rulings constitute an abuse of its discretion. Specifically, they

contend that the court erred in (1) finding that evidence regarding

Lieutenant Hudson’s possible bias was irrelevant and unfairly

prejudicial; (2) limiting their cross-examination of Lieutenant

Hudson; and (3) excluding testimony of Chief White, Lieutenant

Hudson’s former boss. Although the court allowed Defendants to

present evidence and argue that Lieutenant Hudson planted drugs at

issue, Defendants assert that the Tatum evidence and testimony of

Chief White were essential to explain why Lieutenant Hudson may

have framed them.

We review a district court’s evidentiary rulings for an abuse

of discretion.1 “Generally, an abuse of discretion only occurs

where no reasonable person could take the view adopted by the trial

court. If reasonable persons could differ, no abuse of discretion

can be found.”2 Even if the court abused its discretion, reversal

is required only if the evidentiary error affected the substantial

1
United States v. Powers, 168 F.3d 741, 748 (5th Cir. 1999).
2
Dawson v. United States, 68 F.3d 886, 896 (5th Cir. 1995)
(quoting Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th
Cir. 1995)).

12
rights of the parties.3 “An error is harmless if the court is

certain, after reviewing the record, that the error did not

influence the jury or had only a slight effect on its verdict.”4

Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be

without the evidence.”5 Otherwise relevant evidence “may be

excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading

the jury.”6 The trial judge has broad discretion over

determinations of relevance and unfair prejudice.7 But Rule 403

should be used sparingly to exclude relevant evidence.8

1

The district court granted the government’s motion in limine

excluding all evidence regarding Agent Tatum as irrelevant,

unfairly prejudicial, and confusing. Defendants argue that the

court’s exclusion was an abuse of discretion because it effectively

3
FED. R. EVID. 103(a).
4
Tanner v. Westbrook, 174 F.3d 542, 549 (5th Cir. 1999)
(citing EEOC v. Manville Sales Corp., 27 F.3d 1089, 1094 (5th Cir.
1994)).
5
FED. R. EVID. 401.
6
FED. R. EVID. 403.
7
United States v. Madera, 574 F.2d 1320, 1322 (5th Cir.
1978).
8
United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979).

13
denied them their Sixth Amendment right to present a vigorous

defense.

Although an accused has a Sixth Amendment right to offer

testimony and to question witnesses, the right to a vigorous

defense is limited by the Federal Rules of Evidence.9 Due process

and the Sixth Amendment’s Compulsory Process Clauses entitle a

defendant to obtain witnesses in his favor and present exculpatory

evidence, but a defendant’s rights are abridged only when the

defendant is precluded from presenting testimony or witnesses that

are relevant and material to the defense.10 Accordingly, although

Appellants phrase their argument in terms of the Sixth Amendment,

the question is whether the court abused its discretion by

excluding evidence as irrelevant and unfairly prejudicial.

The government claims that Lieutenant Hudson had no knowledge

of the Tatum investigation or its outcome until after the

investigation of Bowens had begun. As a result, the proposed

evidence would only show that an FBI agent unrelated to the Bowens

investigation committed a felony in an unrelated case. Moreover,

9
Taylor v. Illinois, 484 U.S. 400, 410-11 (1988) (“The
principle that undergirds the defendant’s right to present
exculpatory evidence is also the source of essential limitations on
the right. The adversary process could not function effectively
without adherence to rules of procedure that govern the orderly
presentation of facts and arguments to provide each party with a
fair opportunity to assemble and submit evidence to contradict or
explain the opponent’s case.”).
10
See Washington v. Texas, 388 U.S. 14, 23 (1967); see also
Taylor, 484 U.S. at 408.

14
the government notes that if the Tatum evidence had been admitted,

the government in turn would have admitted evidence that Bowens put

a bounty on Lieutenant Hudson’s life and that this was the reason

the investigation began, not because of any vendetta. Introduction

of this evidence, the government urges, would prejudice the

defendants, confuse the jury, and unnecessarily consume time.

The court erred by excluding the evidence as irrelevant. FED.

R. EVID. 401 requires only that evidence be probative of the

proposition it is offered to prove and that the proposition be of

consequence to the case as determined by the substantive law.11

Appellants’ theory was that Lieutenant Hudson planted the drugs as

revenge for Bowens’ exposure of Lieutenant Hudson’s friend.

Evidence of Lieutenant Hudson’s friendship with Tatum and of

Bowens’ fear of being set up, as evidenced by letters written by

Bowens predating his arrest, is probative of Lieutenant Hudson’s

bias, and is of consequence to the determination of whether Bowens

did in fact possess and distribute crack cocaine. Given that

evidence of a witness’s bias, especially one like Lieutenant Hudson

who served as the government’s chief witness and who was a leader

of the investigation against the defendants, is usually relevant,

the court abused its discretion in finding this evidence to be

11
See United States v. Hall, 653 F.2d 1002, 1005 (5th Cir.
Unit A Aug. 1981).

15
irrelevant.12

The government claims that the evidence’s probative value is

substantially outweighed by unfair prejudice, confusion of the

issues, misleading the jury, and undue delay because the government

would have been forced to counter, as an alternative reason why the

investigation began, with evidence of Bowens placing a bounty on

Lieutenant Hudson’s life. However, Bowens was willing to risk any

resulting prejudice from the government’s rebuttal evidence, and a

court should not exclude evidence out of concerns for delay when

the evidence is important in resolving the case.13

However, a review of the record reveals that any error was

harmless. The government presented strong corroborating testimony

and evidence of guilt. Two agents from separate departments - the

MBN and the FBI - corroborated Lieutenant Hudson’s story, and they

12
See United States v. Abel, 469 U.S. 45, 51 (1984) (holding
that evidence of a witness’s bias was admissible because “[a]
successful showing of bias on the part of a witness would have a
tendency to make the facts to which he testified less probable in
the eyes of the jury than it would be without such testimony”); see
also Davis v. Alaska, 415 U.S. 308, 316 (1974) (“The partiality of
a witness is subject to exploration at trial, and is always
relevant as discrediting the witness and affecting the weight of
his testimony.”) (internal quotation marks omitted).
13
See, e.g., Busby v Orlando, 931 F.2d 764, 785-86 (11th Cir.
1991). Moreover, Rule 403 should be used sparingly to exclude
relevant evidence; the danger of unfair prejudice must
substantially outweigh the probative value of the evidence.
Considering that the Tatum evidence would call the credibility of
the government’s main witness into question and that it served as
the only evidence of Lieutenant Hudson’s bias, its probative value
is high. The exclusion is not justified as precluding unfairly
prejudicial or confusing evidence.

16
specifically denied that drugs or buy money were planted.

Defendants focus on Lieutenant Hudson’s alleged control of Gooden,

but both Gooden and Butler testified that they bought crack from

Bowens, further corroborating Lieutenant Hudson’s story. Finally,

various other witnesses testified to their purchases of crack from

Defendants and that Bowens either attempted to coerce or succeeded

in coercing false affidavits from many of the witnesses.

Defendants were found with the buy money after the controlled buys

occurred, and the authorities found evidence of cocaine in

Hampton’s bedroom, Hampton’s car, and in Bowens’ trailer. Given

this overwhelming evidence of guilt, any error by the court in

excluding evidence of Lieutenant Hudson’s bias could not have

affected the jury’s determination. Any error was harmless and does

not justify reversal.

2

Defendants also contend that the court erred in not allowing

cross-examination regarding Lieutenant Hudson’s possible bias,

again relying on the Sixth Amendment. We agree that the court

erred in limiting cross-examination, but the error was harmless for

the reasons described above.14 The material facts and allegations

were corroborated by other government witnesses that are not

subject to Defendants’ allegations of bias. The error, at most,

could have only a slight effect on the jury’s verdict and is

14
Van Arsdall, 475 U.S. at 682.

17
therefore harmless.15

3

Appellants sought to admit Chief White’s testimony that in

1996, four years before the investigation of Bowens, Chief White

found a significant amount of illegal drugs in Lieutenant Hudson’s

police locker. They sought to admit this testimony as proof of

Lieutenant Hudson’s opportunity to frame Bowens under Rule 404(b),

or as a specific instance of conduct probative of untruthfulness

under Rule 608(b).

During trial, the parties agreed to three stipulations: (1)

that Chief White dismissed Lieutenant Hudson for his fraudulent

attempt to cash his paycheck twice; (2) that Chief White found a

large amount of unaccounted for illegal drugs in Lieutenant

Hudson’s police locker that should have been checked into the

evidence vault; and (3) that Lieutenant Hudson failed to timely

return buy money. The court, however, rejected the latter two

stipulations as inadmissible under Rules 404(b) and 608(b) of the

Federal Rules of Evidence. Specifically, the court found that the

drug locker evidence was not probative of Lieutenant Hudson’s

character for untruthfulness to qualify under Rule 608(b) and that

it was not admissible as evidence of opportunity under Rule 404(b)

because the incident occurred years before at a time when

Lieutenant Hudson did not know the defendants.

15
See Tanner, 174 F.3d at 548-49.

18
 The court did not err by excluding Chief White’s testimony

under Rule 608(b).16 Rule 608(b) provides that “[s]pecific

instances of the conduct of a witness, for the purpose of attacking

or supporting the witness’ character for truthfulness, ... may not

be proved by extrinsic evidence,” but, at the discretion of the

court, a party may inquire about specific instances during cross-

examination “if probative of truthfulness or untruthfulness.”17

This language makes clear that specific acts going to a witness’s

truthfulness may be investigated at the court’s discretion during

cross-examination; the rule does not allow attacking a witness’s

credibility through extrinsic evidence.18 Defendants do not explain

why the plain language of Rule 608(b) does not control.

Nor was the evidence erroneously excluded as evidence of

Lieutenant Hudson’s opportunity to frame the defendants. Rule

404(b) provides that “[e]vidence of other crimes, wrongs, or acts

is not admissible to prove the character of a person in order to

show action in conformity therewith,” but it may “be admissible for

other purposes, such as ... opportunity.”19 A court has broad

16
Id. This determination also disposes of Bowens’ contention
that the court erred by finding that the “drug locker evidence” and
Bowens’ failure to timely return the buy money were not probative
of Bowens’ character for truthfulness.
17
FED. R. EVID. 608(b).
18
United States v. White, 972 F.2d 590, 600 (5th Cir. 1992).
19
FED. R. EVID. 404(b); see also United States v. Beechum, 582
F.2d 898, 910-11 (5th Cir. 1978).

19
discretion in determining admissibility under Rule 404(b).20

Evidence of opportunity under Rule 404(b) must be independently

relevant by fitting into a logical chain of inferences and bearing

a “reasonable relationship to the issues at trial.”21 It is the

proponent’s burden to demonstrate the proposed evidence’s

relevance, and it is error to admit evidence that bears no

reasonable relationship to the issues presented at trial.22 The

Second Circuit held that a trial court erred by admitting evidence

of an accused’s drug conviction that occurred twelve years before

the acts at issue as rebuttal evidence of the accused’s defense

that he was only a bystander.23 In contrast, we held in United

States v. Coleman that videotaped statements of the defendant

regarding actions occurring earlier in the same day were properly

admissible as evidence of the defendant’s opportunity to commit the

20
United States v. Myers, 550 F.2d 1036, 1045 (5th Cir. 1977).
21
CHARLES E. WAGNER, FEDERAL RULES OF EVIDENCE CASE LAW COMMENTARY 404-
35 to 404-36 (2002) (citing United States v. Sampson, 980 F.2d 883,
888 (3d. Cir. 1992)); see also United States v. Cortinas, 142 F.3d
242, 247 (5th Cir. 1998) (noting that the first inquiry in
determining admissibility under Rule 404(b) is whether the evidence
is relevant to an issue other than character).
22
CHARLES E. WAGNER, FEDERAL RULES OF EVIDENCE CASE LAW COMMENTARY 404-
35 to 404-36 (2002) (collecting cases).
23
United States v. Garcia, 291 F.3d 127, 137-38 (2d. Cir.
2002) (“If the government cannot identify a similarity or some
connection between the prior and current acts, then evidence of the
prior act is not relevant to show knowledge and intent. . . .
Without a connection between the two acts, the prior act is not
relevant or probative and is inadmissible.”).

20
crimes charged.24

Bowens relies on United States v. McClure25 to support his

argument that this evidence was admissible as evidence of

opportunity, but McClure is inapposite. In McClure, the defendant

was convicted of distribution of illegal drugs, and he urged on

appeal that the court erred in excluding proffered testimony of

three witnesses. These witnesses would have testified that the

same government informant who posed as the buyer from McClure later

intimidated them into selling drugs.26 McClure sought to introduce

this testimony, which was evidence of “other wrongs” of the

government informant, as proving McClure’s lack of criminal intent

in selling the drugs under Rule 404(b). The district court

excluded the testimony as not probative of McClure’s criminal

intent because the alleged events occurred after McClure’s sale to

the informant. We reversed the district court, holding that “under

Fed. R. Evid. 404(b) evidence of a systematic campaign of threats

and intimidation against other persons is admissible to show lack

of criminal intent by a defendant who claims to have been illegally

24
78 F.3d 154, 156-157 (5th Cir. 1996) (holding that the
defendant’s statement regarding efforts to carjack other victims
earlier in the day “was particularly helpful in evaluating
Coleman’s opportunity to use the weapon and his knowledge of
Beasley’s intent to use a weapon to carjack an automobile, and in
generally placing Coleman’s conduct regarding the charged offenses
in proper context”).
25
546 F.2d 670 (5th Cir. 1977).
26
Id. at 672.

21
coerced.”27 However, McClure does not address when evidence is

properly admissible as proof of opportunity under Rule 404(b). As

such, Bowens is mistaken in relying on it to mitigate the fact that

the proof of Lieutenant Hudson’s alleged opportunity occurred four

years before the investigation of Bowens began.28

Bowens provides no authority supporting his assertion that

evidence of a police officer’s personal possession of narcotics

four years before an investigation began is properly admissible

under Rule 404(b) as evidence of opportunity. The court below and

the government on appeal properly assert that the drug locker

evidence is simply too remote and unrelated to constitute evidence

of Lieutenant Hudson’s opportunity to frame Bowens.

Defendants’ only response is that neither Rule 404(b) nor Rule

608(b) require the specific act to be closely related in time to

the charged crime and that, in any case, he is not asserting that

Bowens used the drugs from the Greenwood Police Department to set

up Bowens. Rather, they assert that because Lieutenant Hudson had

access to drugs previously, he could have had access again,

27
Id. at 672-73.
28
Bowens also cites United States v. Blum, 62 F.3d 63 (2d Cir.
1995), but it is similarly inapposite. In Blum, the Second Circuit
held that the district court erred in excluding testimony as
extrinsic character evidence of a witness because the testimony was
proper evidence of motive under Rule 404(b). Id. at 68. The
question here is whether evidence of Lieutenant Hudson’s possession
of seized drugs in 1996 is properly admissible as proof of
opportunity during the investigation of Bowens four years later.

22
providing the opportunity to frame Bowens. This argument is

unpersuasive because any narcotics officer involved in a sting

operation has access to narcotics seized and later placed in the

evidence locker. Bowens does not explain how Lieutenant Hudson’s

actions in 1996 could produce an opportunity to frame Bowens in

2000. Rule 404(b) prohibits the use of character evidence to prove

conforming conduct, but Chief White’s testimony would have provided

just that: evidence of Lieutenant Hudson’s past conduct to

insinuate that he did the same thing again while a member of the

Tunica County Sheriff’s Department. Bowens has not shown a valid

exception under Rule 404(b).29

The court did not abuse its discretion in excluding the

testimony of Chief White.30

B

After trial, Defendants moved for a new trial based on alleged

Brady violations. First, Defendants alleged that the government

29
Bowens was free to cross-examine Lieutenant Hudson about his
actions while employed in Greenwood. Rule 404(b) and 608(b) would
not have been a bar to delving into Lieutenant Hudson’s work
history on cross-examination. Bowens chose instead to introduce
the evidence through Chief White, making it extrinsic character
evidence subject to Rules 608(b) and 404(b).
30
Defendants also assert that excluding Chief White’s
testimony violated their Sixth Amendment right to compulsory
process for witnesses. As discussed above, a defendant’s Sixth
Amendment rights are not unbound. Van Arsdall, 475 U.S. at 679.
Because the district court properly excluded Chief White’s
testimony under the Federal Rules of Evidence, there was no Sixth
Amendment violation.

23
suppressed an MBN policy providing that “drug addicts shall not be

used as informants without the written approval of the Director.”

Appellants contend that they could have used this policy to impeach

the informants. Second, Defendants allege the suppression of

documents regarding Gooden’s arrest and incarceration, including

public records and a memorandum written by Lieutenant Hudson to the

jail administrator stating that Gooden was in a “federal witness

program.” Appellants assert, without any answer by the government,

that Gooden was held against her will by Lieutenant Hudson.31 The

court found no Brady violation.32

1

We review Brady determinations de novo.33 To establish a Brady

violation, a defendant must show that the government suppressed

31
Counsel for Bowens indicated at oral argument that Gooden
brought suit to recover for Lieutenant Hudson’s actions and has
settled her claim.
32
Hampton asserts that the court erred in resolving the motion
without conducting an evidentiary hearing. This argument is
without merit. District courts may resolve motions for new trial
without conducting an evidentiary hearing. See United States v.
Runyan, 290 F.3d 223, 248 (5th Cir. 2002) (explaining that “the
decision to hold a hearing rests within the sound discretion of the
trial court”) (internal quotation marks omitted). The district
court handled this case during pretrial, through a two-week jury
trial, and through sentencing; it could fully consider the nature
and effect of the documents alleged to be improperly suppressed in
light of its knowledge of all the players involved. We find no
abuse of discretion.
33
Felder v. Johnson, 180 F.3d 206, 212 (5th Cir. 1999).

24
favorable, material evidence.34 Evidence is material “only if there

is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been

different.”35 “The materiality of Brady evidence depends almost

entirely on the value of the evidence relative to the other

evidence mustered by the State.”36 Thus, “when the undisclosed

evidence is merely cumulative of other evidence, no Brady violation

occurs.”37

2

The MBN policy limiting the use of drug addicts as informants

was not suppressed by the government. Defendants make a general

claim that they did not know of the policy during trial, but they

do not explain why the policy was not discoverable through the

exercise of due diligence. Their knowledge of the policy before

trial is evidenced by Hampton’s attempt to get a copy of the policy

from the U.S. Attorney’s office. The U.S. Attorney could not

furnish a copy of the policy because it was a policy of the

Mississippi Bureau of Narcotics, but Hampton was informed that the

policy was obtainable from the MBN. A post-trial letter written to

34
Brady v. Maryland, 373 U.S. 83, 87 (1963).
35
United States v. Bagley, 473 U.S. 667, 682 (1985).
36
Smith v. Black, 904 F.2d 950, 967 (5th Cir. 1990), vacated
on other grounds, 503 U.S. 930 (1992).
37
Spence v. Johnson, 80 F.3d 989, 995 (5th Cir. 1996).

25
the MBN from defendants demonstrates that the policy was obtainable

from the MBN within a matter of days. Given that the government

bears no responsibility to direct the defense toward potentially

exculpatory evidence that is either known to the defendant or that

could be discovered through the exercise of reasonable diligence,38

there was no Brady violation based on the U.S. Attorney’s failure

to provide the MBN policy.

Similarly, Defendants fail to explain why the public records

and documents indicating Gooden’s improper detention were not

obtainable through due diligence or were not cumulative. All of

the documents and evidence discussed in Bowens’ opening brief were

disclosed, and therefore cannot constitute a Brady violation.

Bowens knew that (1) Gooden was arrested in March 2000 and that the

charges were later dismissed because of her cooperation; (2) Gooden

entered the Federal Emergency Witness Assistance Program, which

included drug rehabilitation; (3) Gooden exited the program because

she did not wish to stay in the rehabilitation program; (4) Gooden

was subsequently re-arrested by Lieutenant Hudson; and (5)

Lieutenant Hudson justified Gooden’s arrest by scratching out the

date on her original March 2000 arrest warrant and replacing it

with “November 2000.” Bowens had a copy of the original arrest

warrant and the altered version, and he knew that Gooden remained

incarcerated. Given that the state bears no responsibility to

38
Rector v. Johnson, 120 F.3d 551, 558-59 (5th Cir. 1997).

26
direct the defense toward potentially exculpatory evidence that is

either known to the defendant or that could be discovered through

the exercise of reasonable diligence, the evidence at issue was not

suppressed in violation of Brady.39

In his reply brief, Bowens focuses solely on three categories

of evidence: the affidavits of Gooden claiming she was improperly

held against her will to coerce her testimony, affidavits from

other jail officials stating that Lieutenant Hudson told them that

Gooden was in the Federal Witness Protection Program despite the

fact that she was only in the Federal Emergency Witness Assistance

Program, and the jailer’s letter inquiring about the status of

Gooden’s detention. But these documents do not establish a Brady

violation. The affidavits were taken after trial and therefore

could not have been suppressed. The letter was cumulative and

therefore immaterial, despite Defendants’ claim that they needed

the jailer’s letter “to put the pieces of the puzzle together.”

The withheld evidence is cumulative of what Defendants already knew

or could have discovered through reasonable diligence - that

Lieutenant Hudson was holding Gooden based on questionable

authority.40

The alleged conduct of Lieutenant Hudson is disturbing, and

Gooden brought suit to address the alleged false imprisonment. But

39
Id.
40
Spence, 80 F.3d at 995.

27
the record does not indicate that a Brady violation occurred.41

C

Bowens and Hampton were indicted together. Bowens moved for

relief from prejudicial joinder under FED. R. CRIM. P. 14, which

provides that “[i]f the joinder of offenses or defendants in an

indictment, an information, or a consolidation for trial appears to

prejudice a defendant or the government, the court may order

separate trials of counts, sever the defendants’ trials, or provide

any other relief that justice requires.”42 The district court

denied the motion.

41
Defendants also claim that the evidence of Gooden’s
allegedly illegal detention entitles them to a new trial based on
newly discovered evidence. Other than the evidence discussed
above, which was either not suppressed or immaterial, the only new
evidence on which Defendants base their claim is Gooden’s post-
trial affidavits. Gooden has now recanted her in-court testimony
that she voluntarily participated with the government, and now
claims that Lieutenant Hudson illegally held her and threatened to
take her children away if she did not assist him in prosecuting
Bowens and Hampton. The district court noted the “so-called
affidavits” in its Memorandum Opinion, but it found that “based on
Gooden’s testimony at the hearing on the motion to suppress, the
Court is convinced that she voluntarily assisted the department in
obtaining information about Hampton and Bowens.”
Although her new testimony, if true, would cast doubt on the
trial, Bowens concedes in his brief that, considering Gooden’s
character and her ever-changing stories, “the recantation by Gooden
should be viewed with extreme caution.” He concedes that only when
coupled with the newly discovered evidence of Lieutenant Hudson’s
illegal holding of Gooden, could her recantation provide a basis
for a new trial. Given that there is no material, non-cumulative,
newly-discovered evidence of Lieutenant Hudson’s actions, Gooden’s
affidavits are insufficient to warrant a new trial. See United
States v. Pena, 949 F.2d 751, 758-59 (5th Cir. 1991); see also
United States v. Jaramillo, 42 F.3d 920, 924 (5th Cir. 1995).
42
FED. R. CRIM. P. 14(a).

28
 On appeal, Bowens asserts that he was prejudiced by being

tried alongside Hampton, who distributed a significantly larger

amount of cocaine, and who Bowens asserts had a much weaker case.43

The government notes the district court’s broad discretion in

determining motions to sever and asserts that there was no abuse of

discretion.

We review the court’s denial of Bowens’ motion to sever for an

abuse of discretion.44 FED. R. CRIM. P. 8(b) provides that “[t]he

indictment or information may charge 2 or more defendants if they

are alleged to have participated in the same act or transaction ...

constituting an offense or offenses.”45 It is rote that as a

general matter, “persons indicted together should be tried

together, especially in conspiracy cases.”46 “To demonstrate that

a district court abused its discretion in denying a motion to

sever, the defendant must show that: (1) the joint trial prejudiced

43
Hampton attempts to join this argument under FED. R. APP. P.
28(i). He does not, however, specify why he was prejudiced as a
result of the joint trial. Bowens’ assertion of prejudice as a
result of being tried with Hampton is fact-specific to Bowens’
position; therefore, Hampton may not join in Bowens’ claim of
error. See United States v. Baptiste, 264 F.3d 578, 586 n.6 (5th
Cir. 2001).
44
United States v. Richards, 204 F.3d 177, 193 (5th Cir.
2000), overruled on other grounds by United States v. Longoria, 298
F.3d 367, 372 & n.6 (5th Cir. 2002).
45
FED. R. CRIM. P. 8(b).
46
United States v. Posada-Rios, 158 F.3d 832, 863 (5th Cir.
1998) (internal quotation marks omitted).

29
him to such an extent that the district court could not provide

adequate protection; and (2) the prejudice outweighed the

government's interest in economy of judicial administration.”47 The

prejudice must be “specific and compelling.”48 “[A]n appellant must

isolate events occurring in the course of the joint trial and then

. . . demonstrate that such events caused substantial prejudice.”49

In determining whether the defendant is prejudiced, the jury’s

resolution of the various charges is instructive: “acquittals as to

some defendants on some counts support an inference that the jury

sorted through the evidence and considered each defendant and each

count separately.”50 Similarly, cautionary instructions given by

the court to the jury decrease the possibility of prejudice.

Finally, denying a motion to sever despite a quantitative disparity

of evidence and a possible spillover effect does not necessarily

equal an abuse of discretion.51

Bowens contends that he, as a defendant with a stronger case

than Hampton, was severely prejudiced by being tried with Hampton,

who Bowens characterizes as a major drug dealer. However, it is

47
Richards, 204 F.3d at 193 (internal quotation marks
omitted).
48
Id.
49
Id.
50
Id.
51
United States v. Neal, 27 F.3d 1035, 1045 (5th Cir. 1994).

30
well-established that even assuming a quantitative disparity of

evidence between Hampton and Bowens, the resulting possibility of

prejudice does not entitle Bowens to a severance and a finding on

appeal that the district court abused its discretion.52 The court

instructed the jury that each count constituted a separate crime,

that the evidence pertaining to each count should be considered

separately, and that a determination on one count “should not

control your verdict as to any other.” Similar instructions have

been found to eliminate the possibility of prejudice.53

Furthermore, the jury acquitted as to the conspiracy count but

convicted on other counts, cutting against Bowens’ claim of error.54

Other than his general “spillover” assertion, Bowens points to no

compelling or specific prejudice that would justify a finding that

the court abused its discretion. With the same awareness mentioned

in United States v. Simmons,55 we find no reversible error in the

court’s decision to deny the motion to sever.

52
See id.
53
Richards, 204 F.3d at 193; Posada-Rios, 158 F.3d at 864;
United States v. Faulkner, 17 F.3d 745, 759 (5th Cir. 1994).
54
See Richards, 204 F.3d at 193.
55
374 F.3d 313, 318 (5th Cir. 2004) (“In our decision we are
keenly aware that the claimed ‘efficiency’ of a joint trial can be
a surrogate for the reality that a joint trial of multiple
defendants is simply to the advantage of the government. It is the
potential presence of prosecutorial advantage distinct from the
expense of duplicating efforts that draws our attention.”).

31
 III

Bowens raises three claims of error unique to his appeal:

(1) that the evidence is insufficient to support his convictions;

(2) that the court erred by denying his motion to suppress

evidence; and (3) that the court clearly erred in determining his

sentence. We find no reversible error.

A

Bowens’ sufficiency of the evidence argument boils down to a

claim that no reasonable jury could convict him based primarily on

the testimony of government informants who benefitted from their

testimony and whose credibility was questionable because of their

drug addictions. This claim of error fails, however, because (1)

credibility determinations are for the jury; (2) the law provides

that a defendant may be convicted on the uncorroborated testimony

of a co-conspirator who benefits from his testimony so long as the

testimony is not incredible; and (3) in any case, the government

introduced a significant amount of other direct and circumstantial

evidence supporting the convictions. As a result, Bowens cannot

meet the difficult standard of review, showing that no reasonable

jury could have found him guilty beyond a reasonable doubt.

1

“In reviewing an appeal based on insufficient evidence, the

standard is whether any reasonable trier of fact could have found

that the evidence established the defendant’s guilt beyond a

32
reasonable doubt.”56 We review the evidence in the light most

favorable to the verdict.57 Given that “the jury retains the sole

responsibility for determining the weight and credibility of the

evidence,”58 we do not ask “whether the trier of fact made the

correct guilt or innocence determination, but rather whether it

made a rational decision to convict or acquit.”59 Finally, it is

clear that “a defendant may be convicted on the uncorroborated

testimony of a coconspirator who has accepted a plea bargain unless

the coconspirator’s testimony is incredible.”60 Testimony that

relates facts impossible for the witness to observe is incredible.61

2

The government charged Bowens with two counts of distributing

crack cocaine, as aided and abetted by Cotton, to Butler (Counts

Two and Three), one count of distributing crack cocaine to Gooden

(Count Seven), one count of possessing with intent to distribute

crack cocaine (Count Eight), and one count of obstruction of

justice (Count Nine). The drug charges are violations of 21 U.S.C.

56
Jaramillo, 42 F.3d at 922-23.
57
Id. at 923.
58
Id. at 922.
59
Herrera v. Collins, 506 U.S. 390, 402 (1993).
60
United States v. Villegas-Rodriguez, 171 F.3d 224, 228 (5th
Cir. 1999).
61
United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994).

33
§ 841(a), providing that it “shall be unlawful for any person

knowingly or intentionally ... to manufacture, distribute, or

dispense, or possess with intent to manufacture, distribute, or

dispense, a controlled substance.”62 The essential elements are

knowledge, possession or distribution of a controlled substance,

and intent.63 Possession can be actual or constructive, which “has

been defined as ownership, dominion or control over the contraband,

or over the vehicle in which the contraband was concealed.”64

Regarding Counts Two and Three, the government presented

evidence through the testimony of Lieutenant Hudson, James Jones of

the MBN, Butler, Cotton, and other witnesses providing

circumstantial evidence, that (1) the Tunica County Sheriff’s

Office, along with agents from the MBN and the FBI, set up a sting

operation involving Butler, who was under arrest for drug

violations; (2) the agents searched Butler’s car and person before

giving him marked buy money and following him to the trailer where

Bowens and Cotton were located; (3) the agents conducted

surveillance of Butler’s conversation with Bowens and Cotton; (4)

Bowens told Butler that he could not deal with Butler directly

because Bowens’ police informant said that Butler was bad business;

62
21 U.S.C. § 841(a)(1).
63
United States v. Solis, 299 F.3d 420, 447 (5th Cir. 2002).
64
United States v. Skipper, 74 F.3d 608, 611 (5th Cir. 1996).

34
(5) Cotton sold crack to Butler outside of the trailer;65 (6) the

crack Cotton sold to Butler was given to Cotton by Bowens; (7)

Bowens often sold crack from the trailer, which he bought from

Hampton; (8) Clarence Dorsey, a former drug dealer, sold .5 ounce

quantities of cocaine to Bowens on a regular basis; (9) Danny

Thomas bought crack from Bowens in the trailer in 1999; (10) Willie

Wade bought crack from Bowens; (11) a later search of the trailer

where Bowens allegedly sold crack revealed trace amounts of cocaine

on a plate, confirming Gooden’s allegations; and (12) Bowens either

succeeded in persuading, or attempted to persuade, five people to

sign documents stating that he had never sold drugs to anyone.

This accumulation of testimony, coupled with the

circumstantial evidence of Bowens’ sales of crack to Butler,

provides sufficient evidence to support Counts One and Two. The

jury heard Bowens’ cross-examination of the witnesses, including

Cotton, and they heard Bowens’ argument that Cotton, not Bowens,

should be responsible for the sales to Butler. Although a co-

conspirator who has reached a plea agreement is less credible than

an unbiased witness, it is well-settled that “[a] defendant may be

convicted on the uncorroborated testimony of a co-conspirator who

has accepted a plea bargain.”66 The only limitation is that the

testimony must not be incredible, but considering that Cotton was

65
Cotton was not under arrest and a police informant at this
time.
66
Villegas-Rodriguez, 171 F.3d at 228.

35
in a position to confirm Bowens’ actions, his testimony was not

incredible. Credibility determinations are for the jury.67 A

rational jury could convict Bowens of the sales to Butler.

Counts Seven and Eight involve one sale of crack to Gooden and

Bowens’ possession with intent to distribute in excess of 5 grams

of cocaine base on March 29, 2000. Through the testimony of

Lieutenant Hudson, James Jones of the MBN, Gooden, and other

witnesses providing circumstantial evidence, the government

presented evidence that (1) the Tunica County Sheriff’s Office,

along with agents from the MBN and the FBI, set up a sting

operation involving Gooden, who was under arrest for drug

violations; (2) the agents searched Gooden’s car and person before

giving her marked buy money and following her to the trailer where

Bowens was located; (3) the agents conducted surveillance of

Gooden’s conversation with Cotton and Bowens; (4) Bowens placed

five rocks of crack on a table, Gooden laid the buy money on the

table, Bowens picked the money up, and the crack sold belonged to

Bowens; (5) Gooden told agents after the buy that Bowens was inside

the trailer and had been cutting a large amount of crack on a

dinner plate; (6) Bowens’ car was at the trailer during the

controlled buy; (7) a warranted search revealed a dinner plate that

tested positive for crack cocaine; (8) a search of Bowens revealed

67
United States v. Resio-Trejo, 45 F.3d 907, 910-11 (5th Cir.
1995).

36
$975 dollars, including the $100 of buy money in his front pocket;

(9) Bowens forced Gooden to sign exculpatory documents saying that

he was not a drug dealer; and (10) various other people purchased

crack from Bowens in the trailer and were forced or asked to sign

exculpatory documents for Bowens.

Bowens has not demonstrated that the evidence was

insufficient. Bowens’ attorney cross-examined each of these

witnesses and exposed their inconsistencies. Again, credibility

determinations are for the jury, and when coupled with other

evidence of Bowens’ involvement in drug trafficking, a rational

jury could convict him of possession with intent to distribute and

of the sale to Gooden.

Turning to Count Eight, obstruction of the due administration

of justice, in violation of 18 U.S.C. § 1503(a), the government was

required to prove “(1) that a judicial proceeding was pending; (2)

that the defendant had knowledge of the judicial proceeding; and

(3) that the defendant acted corruptly with the specific intent to

influence, obstruct, or impede that proceeding in its due

administration of justice.”68

The government presented evidence that while drug charges were

pending in federal court against Bowens, he coerced Cotton into

signing a false affidavit exonerating Bowens of all drug activity.

68
United States v. De La Rosa, 171 F.3d 215, 220-21 (5th Cir.
1999).

37
There is no dispute that at the time of the alleged event, April

2000, charges were pending and that Bowens knew of the judicial

proceeding. Cotton testified that Bowens coerced him into signing

the affidavit, which Bowens knew was false.

Bowens asserts that nothing was corrupt about his actions; he

was merely preparing his defense to the drug charges. He also

contends that Cotton’s testimony cannot be trusted because of his

character and prior inconsistencies.

Bowens’ argument is without merit. First, he cites no

authority for his contention that Bowens’ actions could not be

corrupt because there is no evidence of force or threats. The

statute itself speaks in disjunctive terms, making it unlawful for

anyone to “corruptly or by threats or force, or by any threatening

letter or communication, influence[], obstruct[], or impede[], or

endeavor[] to influence, obstruct, or impede, the due

administration of justice.”69 The term “corruptly,” as used in §

1503, means “for an improper motive” or “an evil or wicked

purpose.”70 There is no statutory requirement that force or threats

of force be used. Second, Bowens’ attack on Cotton’s credibility

fails for the reasons discussed above: Cotton was subject to cross-

examination, and it is the jury’s job to judge credibility.

Finally, Cotton’s testimony is not wholly incredible. The jury

69
18 U.S.C. § 1503(a) (emphasis added).
70
United States v. Haas, 583 F.2d 216, 220 (5th Cir. 1978).

38
found Cotton’s testimony to be credible, and it provided sufficient

evidence on which a rational jury could convict Bowens of

obstruction of justice. The evidence supports Bowens’ conviction

on Count Eight.

B

Before trial, Bowens moved to suppress evidence resulting from

two warranted searches that he asserts were invalid. Bowens

contends that the government agents knowingly or recklessly misled

the issuing judge by failing to disclose that the confidential

informant on which they relied (Gooden) was addicted to crack,

under arrest, and assisting the government in exchange for

leniency. He contends that if the Magistrate Judge had known that

Gooden was the government’s source, the warrants would not have

issued.71

In response, the government asserts that the agents did not

falsify affidavits or intentionally mislead the judges who issued

the search warrants. The affidavits represented that their

confidential informant was reliable based on the controlled buys

that corroborated her initial allegations that she could obtain

crack from Bowens and Hampton. The agents set up the sting

operation, recounted the details to the judge, and informed the

judge that the informant succeeded in buying crack. The agents

71
The first warrant issued to search the trailer where Bowens
and Cotton allegedly sold crack, and the second warrant issued to
search Bowens’ residence.

39
informed the judge that the controlled buys were recorded, but they

did not disclose that their source was a drug addict, that Bowens’

voice could not be heard on the audiotape, and that no agent

actually witnessed the sale occur.

After a two-day suppression hearing, the district court found

that although the issuing judges were not told of Gooden’s drug use

or arrest, “no one intentionally misrepresented important facts to

either judge.” Further, the court found that based on the

affidavits for the search warrants, the search warrants were valid

because “the judges had a ‘substantial basis for ... conclud[ing]’

probable cause existed.”

1

In reviewing a denial of a motion to suppress, the court’s

factual findings are reviewed for clear error, while the court’s

legal conclusions are reviewed de novo.72 “Our review of a district

court’s denial of a motion to suppress evidence seized pursuant to

a warrant is limited to (1) whether the good-faith exception to the

exclusionary rule applies, and (2) whether the warrant was

supported by probable cause.”73

The good-faith exception provides that “[e]vidence obtained by

officers in objectively reasonable good faith reliance upon a

72
United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir.
2001) (per curiam).
73
United States v. Alix, 86 F.3d 429, 435 (5th Cir. 1996).

40
search warrant is admissible, even though the affidavit on which

the warrant was based was insufficient to establish probable

cause.”74 An officer’s reliance is in good faith “so long as the

warrant is supported by more than a ‘bare bones affidavit.’”75 A

bare bones affidavit “is so deficient in demonstrating probable

cause that it renders an officer’s belief in [the existence of

probable cause] completely unreasonable.”76 However, an officer

will not have reasonable grounds for believing the warrant issued

properly “if the magistrate or judge in issuing a warrant was

misled by information in an affidavit that the affiant knew was

false or would have known was false except for his reckless

disregard of the truth.”77

2

Even assuming the lack of probable cause, the good-faith

exception supports the court’s denial of the motions to suppress.

The fact that information provided by an informant is against her

own penal interest provides “substantial corroboration.”78 Here,

74
United States v. Cisneros, 112 F.3d 1272, 1278 (5th Cir.
1997) (internal brackets and quotation marks omitted).
75
Id. (internal quotation marks omitted); see United States
v. Leon, 468 U.S. 897, 920 (1984).
76
Cisneros, 112 F.3d at 1278.
77
Leon, 468 U.S. at 923.
78
See United States v. McKeever, 5 F.3d 863, 865 (5th Cir.
1993) (citing United States v. Harris, 403 U.S. 573, 583-84
(1971)).

41
Gooden informed the agents that her sources for crack were Bowens

and Hampton and that she had purchased crack from them on various

occasions. These statements were against her penal interest and

provide substantial corroboration.

Yet the affidavits did not rely on her statements alone.

Caselaw provides that “[u]ncertainty about the veracity of an

informant can also be compensated for by detail of the statement or

internal consistency of the statement and surrounding facts.”79 The

facts and circumstances surrounding Bowen’s alleged drug possession

and distribution were sufficiently detailed in the affidavit. The

agents tested Gooden’s allegations by setting up carefully

monitored controlled buys. These controlled buys yielded what she

claimed they would: her purchase of crack cocaine from Bowens and

Hampton. Based on her initial story and the subsequent controlled

buys that supported her contentions, the agents believed Gooden to

be a reliable source and received the search warrant for the

trailer.

These facts supported the subsequent search of Bowens’

residence as well. Bowens’ residence was specifically implicated

as a possible source of seizable items because Bowens told Gooden

that he was out of drugs on March 28, 2000, and needed to go get

more. His car appeared at his residence on the morning of March

79
United States v. Privette, 947 F.2d 1259, 1262 (5th Cir.
1991).

42
29, 2000, and he later returned to the trailer.

The district court’s finding that the agents did not

intentionally or recklessly mislead the issuing judges is not

clearly erroneous. “Absent evidence of an intentional material

misrepresentation or omission in the affidavit, the warrant will

not be invalidated.”80 Moreover, characterizing facts in a

particular manner does not necessarily make it false; “if a

statement can be read as true, it is not a misrepresentation.”81

Here, the agents described Gooden as a reliable source.

Presumably, they did so because her allegations regarding Bowens

and Hampton were confirmed by the controlled buys. The district

court found that no material misrepresentation occurred, and Bowens

does not sufficiently explain why the court clearly erred in so

finding.

Given that the affidavits at issue provided more than “bare

bones assertions,” and that the judges had before them adequate

“information to allow the conclusion that a fair probability

existed that seizable evidence would be found” in the trailer and

at Bowens’ residence, the agents’ reliance was objectively

reasonable.82 The good-faith exception applies, and there was no

80
United States v. McCarty, 36 F.3d 1349, 1356 (5th Cir.
1994).
81
United States v. Cherry, 50 F.3d 338, 341 (5th Cir. 1995).
82
United States v. Restrepo, 994 F.2d 173, 189 (5th Cir.
1993); see also Cisneros, 112 F.3d at 1279.

43
error in denying the motion to suppress.

C

Bowens claims that the district court clearly erred in finding

that he distributed at least 500 grams of cocaine base and in

applying an upward adjustment for possessing a dangerous weapon in

relation to a drug trafficking crime. We review a district court’s

factual findings on which a defendant’s sentence is based for clear

error.83 We review the court’s application of the guidelines de

novo.84 A defendant’s sentence may be based on conduct for which

he was acquitted.85 In resolving factual disputes, district courts

“may consider relevant information without regard to its

admissibility under the rules of evidence applicable at trial,

provided that the information has sufficient indicia of reliability

to support its probable accuracy.”86

1

Bowens’ primary assertion is that the witnesses on which the

court based its finding of distribution of at least 500 grams of

cocaine base were biased as a result of the government’s offer of

reduced sentences in exchange for their testimony. However, Bowens

83
United States v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995).
84
United States v. Carbajal, 290 F.3d 277, 282-83 (5th Cir.
2002).
85
United States v. Carreon, 11 F.3d 1225, 1241 (5th Cir.
1994).
86
U.S. SENTENCING GUIDELINES MANUAL § 6A1.3(a).

44
cross-examined each witness and exposed their possible biases. It

is well established that the court’s credibility determinations are

afforded great deference. The court had the benefit of knowing the

witness’s biases before sentencing Bowens. Finally, although

Bowens was convicted of distributing 29.65 grams of cocaine base,

Bowens concedes that his sentence may be based on conduct for which

he was not convicted.

Despite Bowens’ assertions, the court did not clearly err by

finding that Bowens distributed at least 500 grams of cocaine base

and sentencing him accordingly under § 2D1.1 of the Sentencing

Guidelines. Seven government witnesses testified to Bowens’

distribution, which combined for a total distribution of 873.67

grams of cocaine base between 1996 and 2000. Bowens cross-examined

each witness, but offered no evidence rebutting the amount of

distribution.

2

The court did not err by applying a two-level upward

adjustment to Bowens’ sentence for possessing a dangerous weapon in

relation to a drug trafficking crime pursuant to § 2D1.1(b)(1) of

the Sentencing Guidelines. The court did not clearly err in

finding that Bowens used a weapon to threaten a government

informant in an attempt to conceal his drug trafficking crimes.

A two-level upward adjustment is appropriate when a defendant

possessed a dangerous weapon while possessing or trafficking

45
drugs.87 The government bears the burden of proof to show a

temporal and spatial relation between the weapon, the drug

trafficking, and the defendant.88 The adjustment should be applied

if the weapon was present, unless it is clearly improbable that the

weapon was connected with the offense.

The court based its holding on the testimony of Butler.

Butler testified that about a week after the two controlled buys

from Bowens, Bowens picked him up, drove him to the country,

accused him of a being a snitch, and forced him to remove his

clothes to prove he was not wearing a wire. Butler testified that

Bowens then held a gun to him and said that he (Bowens) would kill

Butler if he set him up. Bowens offered no evidence or testimony

rebutting Butler’s story, but Bowens notes that the government

never found a weapon on him, in his car, or in his home.

Bowens contends that, assuming Butler’s story to be true,

“there lacks a sufficient nexus between the alleged possession [of

a weapon] and Bowens’ alleged cocaine trafficking.” Bowens relies

on United States v. Cooper,89 a case in which the government

asserted that although the defendant was not found with the firearm

while in possession or while distributing the narcotics, the

87
U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(b)(1).
88
United States v. Vasquez, 161 F.3d 909, 912 (5th Cir. 1998).
89
274 F.3d 230 (5th Cir. 2001).

46
firearm was possessed during the alleged drug conspiracy.90 The

facts showed only that Cooper had a gun with him, but no drugs,

when he was arrested. The panel rejected the government’s theory,

explaining that it–

would result in an enhancement any time a drug
offender is found with a gun regardless of
whether drugs are also found or otherwise
connected to the gun’s location as long as the
government alleges that the defendant is
involved in an ongoing conspiracy. Of course,
such a holding would relieve the government of
its burden of proving that a temporal and
spatial relation existed between the weapon,
the drug trafficking activity, and the
defendant.

The government asserts that because “the threat to kill

[Butler] was clearly an effort to protect and promote BOWENS’ drug

business and to fend off any interference from law enforcement,”

the possession was related spatially and temporally to the drug

offenses. The government relies on United States v. Booker, which

applied the dangerous weapon enhancement to a defendant even though

the evidence did not establish that he possessed the weapon while

he also possessed narcotics.91 The evidence established that Booker

possessed a gun during an argument with a former client about some

missing cocaine.92 Booker asserted that the enhancement was

inappropriate because the weapon possession was only involved in

90
Id. at 246.
91
334 F.3d 406, 413 (5th Cir. 2003).
92
Id.

47
settling a personal argument, but the panel disagreed, holding that

because the incident occurred during the drug trafficking

conspiracy, the weapon was possessed during “drug trafficking

activity” within the meaning of § 2D1.1.93

Bowens’ argument boils down to the proposition that unless a

defendant is found in possession of a weapon while also possessing

the narcotics, the enhancement is inappropriate. This position is

as overbroad as the government’ position in Cooper. The facts of

this case - which have not been shown to be clearly erroneous -

establish that Bowens used a dangerous weapon in an attempt to

prohibit Butler from cooperating with the authorities in their

ongoing drug investigation. Bowens’ threat occurred days after one

of Butler’s controlled buys of crack. This is not Cooper, where

the defendant was simply found in possession of a weapon and the

government alleges the possession to be during an ongoing

conspiracy. Here, the defendant used a firearm in a threatening

manner to protect his drug trafficking business. It occurred soon

after a controlled buy and during an ongoing investigation; as a

result, the necessary temporal and spatial relation existed between

the weapon, the drug trafficking activity, and the defendant. We

find no error in the enhancement.

IV

Hampton raises three claims of error unique to his appeal:

93
Id.

48
(1) that the district court erred in denying his motions to

suppress evidence; (2) that prosecutorial misconduct during trial

requires reversal; and (3) that the court reversibly erred in

disqualifying his original counsel. We find no reversible error.

A

1

Hampton challenges the Collins Street Warrant issued to search

his sister’s home, where he stayed while in Mississippi and where

the controlled buys occurred. The warrant application stated that

crack cocaine was purchased from Hampton within the last twenty-

four hours by a confidential informant at the Collins Street home

and that the drug purchase occurred under the surveillance of the

officers.

Hampton contends that the good-faith exception does not apply

because Lieutenant Hudson did not inform the issuing magistrate

that Gooden, the confidential informant, was a drug addict who had

been placed under arrest. This is the same argument made by

Bowens, and we reach the same conclusion here. Contrary to

Hampton’s assertions, the warrant application did not rely solely

on an untested informant; the officers tested her allegations by

setting up and executing the controlled buys. The court’s finding

that the officers did not intentionally or recklessly mislead the

issuing judges was not clearly erroneous.94 Given that the

94
See supra Part III.B.

49
affidavits at issue provided more than “bare bones assertions,” and

that the judges had before them adequate “information to allow the

conclusion that a fair probability existed that seizable evidence

would be found” in the Collins Street home, the agents’ reliance

was objectively reasonable.95 The good-faith exception applies, and

there was no error in denying the motion to suppress.

2

Hampton asserts that the good-faith exception is inapplicable

to the Hickory Street warrant issued to search his garage because

(1) Lieutenant Hudson misrepresented the number of informants and

the information provided by Dr. Schrader, (2) the affidavit

mentions only the possibility of contraband, and (3) the affidavit

does not adequately describe the contraband to be seized.

The Hickory Street affidavit repeated the allegations from the

Collins Street warrant - that Hamtpon sold drugs the day before to

an informant - and stated that when the informant attempted another

buy, Hampton told her that he needed to get more drugs, leaving the

residence and returning later. The application noted that several

informants contended that Hampton previously went to California to

get more drugs and that he stored the drugs in the garage. The

warrant identified crack cocaine, weapons, money, and paraphernalia

as the possible contraband. The district court found probable

cause under the totality of the circumstances and in light of the

95
Restrepo, 994 F.2d at 189; Cisneros, 112 F.3d at 1279.

50
cocaine recovered from the Collins Street search.

Even assuming that the warrant is not supported by probable

cause and excluding the disputed paragraph, the good-faith

exception applies. The warrant rested on the controlled buy that

occurred at the Collins Street home, on the fact that the Collins

Street warrant netted a significant amount of contraband, and on

allegations from sources that Hampton needed to get more cocaine.

The warrant noted that Hampton’s car left the Collins Street home

and returned later that day and that Hampton controlled the garage

to be searched. Given these circumstances, the warrant is not “so

deficient in demonstrating probable cause that it renders an

officer’s belief in [the existence of probable cause] completely

unreasonable.”96 The court did not err in denying the motion to

suppress.

B

Hampton asserts that prosecutorial misconduct during redirect

examination of Gooden and during rebuttal argument requires

reversal. Because Hampton made no contemporaneous objection to

either instance of alleged misconduct, we review for plain error.97

To prevail, Hampton must show “1) an error; 2) that is clear or

plain; 3) that affects the defendant’s substantial rights; and 4)

96
Cisneros, 112 F.3d at 1278.
97
United States v. McWaine, 243 F.3d 871, 873 (5th Cir. 2001),
overruled on other grounds by United States v. Randle, 304 F.3d 373
(5th Cir. 2002).

51
seriously affects the fairness, integrity or public reputation of

judicial proceedings.”98

Hampton alleges that the prosecutor improperly used the court

to bolster the credibility of Gooden during her redirect

examination. Hampton challenged Gooden’s credibility during cross-

examination, focusing on her signed admissions to Hampton that she

planted the drugs on him. She explained that she signed these out

of fear for her life. On redirect, the prosecution explained

“[t]his is the time to tell the truth one way or the other and

whatever that truth is. You have a federal judge to your right and

to your left you have a United States Marshal. ... The federal

judge who sits to your right will make sure nobody holds it against

you that you tell the truth.”

The alleged misconduct during rebuttal is the government’s

argument that Lieutenant Hudson, a local deputy sheriff, could not

have planted 7.5 pounds of cocaine in Hampton’s car, especially

considering that such a large amount would be noticed if taken from

the police station, that the amount is worth $340,000, and that a

smaller amount would suffice if Lieutenant Hudson wanted to frame

Hampton. Hampton contends the argument was improper and plain error

because the government knew, through the excluded locker testimony

of Chief White, that Lieutenant Hudson could in fact obtain a large

quantity of drugs.

98
Id.

52
 We need not determine whether the acts at issue rise to the

level of prosecutorial misconduct because, in light of the other

evidence presented by the government supporting Hampton’s

convictions, Hampton cannot show plain error. Even if the

statements during redirect and during rebuttal argument were

improper, the error was not so egregious as to be clear or plain,

and the substantial amount of evidence presented by the government

indicates that these isolated statements in the course of a two-

week trial did not affect Hampton’s substantial rights.

C

Hampton claims that the district court reversibly erred when

it disqualified his counsel, violating his Sixth Amendment right to

retain his counsel of choice, without first conducting an

evidentiary hearing to explore the nature and extent of his

counsel’s conflict of interest. He asserts that he could have

waived any conflict and speculates that the government witnesses

who were also represented by Hampton’s attorneys would have also

waived the conflict. The government, noting the “substantial

latitude” given to district courts in finding an actual or

potential conflict and refusing a defendant’s waiver, contends that

there is no requirement that a district court hold a hearing in

every case and claims that the court here acted within its

discretion. We agree with the government and find no abuse of

discretion in the court’s disqualification of Hampton’s counsel.

53
 Hampton initially retained Gail Thompson and Ronald Lewis.

The government moved to disqualify both attorneys because (1)

Thompson previously represented Melvin Shipp, a government witness

seeking a Rule 35 sentence reduction, and (2) Lewis represented

Clarence Dosey, a government witness also seeking a Rule 35

sentence reduction. Both Shipp and Dorsey testified that Hampton

was a drug dealer selling drugs from the Collins Street home.

Thompson and Lewis responded to the motion to disqualify and filed

motions for reconsideration after the court’s initial

disqualification. The magistrate judge disqualified Thompson and

Lewis, and the district affirmed the decision, explaining in its

written order that,

[i]n serving the best interests of Hampton,
Lewis cannot also serve the best interests of
Dorsey, one of his present clients, because he
could very possibly be called upon to impeach
Dorsey’s credibility during Hampton’s trial.
Additionally, a strong possibility exists that
Thompson, in order to serve Hampton’s best
interest, would have to impeach Shipp’s
credibility, thus breaching her attorney-
client privilege with him.

Hampton relies on United States v. Garcia99 and United States

v. Izydore100 for the proposition that if the lower court becomes

aware of an alleged conflict of interest, the court must conduct a

full evidentiary hearing. However, neither Garcia nor Izydore

99
517 F.2d 272 (5th Cir. 1975).
100
167 F.3d 213 (5th Cir. 1999).

54
provides such a rule. In Garcia, the panel held that a defendant

can waive the right to conflict-free representation and remanded to

the district court to determine “whether the defendants competently

and intentionally waive[d] their Sixth Amendment protections.”101

The nature of the conflict and the attempted waiver were

undetermined. In Izydore, the panel affirmed the district court’s

disqualification of counsel despite the defendant’s attempted

waiver because “a defendant’s waiver does not necessarily preclude

a district court from rejecting a defendant's counsel of choice

when the overall circumstances of a case suggest a conflict of

interest may develop.”102

Izydore relied on the Supreme Court’s opinion in Wheat v.

United States, which explains that the constitutional right to

choose one’s counsel “is circumscribed in several important

respects,” and that all conflicts are not necessarily cured by a

defendant’s waiver because “[f]ederal courts have an independent

interest in ensuring that criminal trials are conducted within the

ethical standards of the profession and that legal proceedings

appear fair to all who observe them.”103 Given these

considerations, the Supreme Court explained that district courts

101
Garcia, 517 F.2d at 277.
102
Izydore, 167 F.3d at 221 (citing Wheat v. United States,
486 U.S. 153, 163 (1988)).
103
Wheat, 486 U.S. at 159-60.

55
must be provided substantial latitude in refusing waivers in

situations where actual or even possible conflicts of interest may

arise. “The evaluation of the facts and circumstances of each case

under this standard must be left primarily to the informed judgment

of the trial court.”104

The district court here had the benefit of various motions

from all parties and recognized the actual conflict of interest at

hand. Hampton’s attorneys needed to attack the credibility of

government witnesses who would testify that Hampton had sold them

drugs, but Hampton’s attorneys had previously formed an attorney-

client relationship with these government witnesses. Unlike Garcia

and Izydore, the conflict was clear even without the benefit of a

hearing: “No man can serve two masters.” Contrary to Hampton’s

assertions, our caselaw does not mandate a full evidentiary hearing

in every case. Bearing in mind the Supreme Court’s instruction

that “the essential aim of the [Sixth] Amendment is to guarantee an

effective advocate for each criminal defendant rather than to

ensure that a defendant will inexorably be represented by the

lawyer whom he prefers,”105 we cannot say that the court abused its

discretion in disqualifying Hampton’s original counsel.

V

Defendants’ final argument is that assuming we find his

104
Id. at 164.
105
Id. at 159.

56
claimed errors to be harmless, their cumulative effect requires

reversal under the cumulative error doctrine.

The cumulative error doctrine “provides that an aggregation of

non-reversible errors (i.e., plain errors failing to necessitate

reversal and harmless errors) can yield a denial of the

constitutional right to a fair trial, which calls for reversal.”106

The doctrine is rarely applied to reverse a defendant’s conviction,

although clear cumulative prejudice requires reversal.107 In United

States v. Labarbera, we applied the cumulative error doctrine to

reverse a defendant’s firearm conviction because of the

prosecutor’s repeatedly improper cross-examination.108 The

prosecutor insinuated that (1) the defendant was a drunk; (2) the

defendant had been previously convicted of a firearms violation;

(3) the prosecutor knew the defendant was involved in other illegal

activity; and (4) the prosecutor had knowledge of the other illegal

activity that could not be presented to the jury.109 The court held

that although “[i]ndividual instances such as these have sometimes

escaped reversal under the harmless error rule,” their cumulative

effect convinced the court “that the defendant did not receive the

106
United States v. Munoz, 150 F.3d 401, 418 (5th Cir. 1998).
107
See United States v. Labarbera, 581 F.2d 107, 110 (5th Cir.
1978).
108
Id.
109
Id. at 108-110.

57
fair trial that he is entitled to under the law.”110

The cumulative error doctrine is inapplicable to this case.

The only error was the court’s limitation of evidence regarding

Lieutenant Hudson’s possible motive to frame Bowens. This error

alone does not create the aggregate effect that could result in a

constitutionally infirm trial. Defendants’ subjected Lieutenant

Hudson to a thorough cross-examination, accusing him of planting

the drugs; the jury considered the credibility of the witnesses and

returned a conviction. The error does not combine to make the

difficult showing of a denial of Bowens’ constitutional right to a

fair trial and require reversal.

VI

Finding no reversible error, we AFFIRM the convictions.

110
Id. at 110.

58