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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-7333
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY BUCKHALTER and CLARENCE MASTON,
Defendants-Appellants.
__________________________________________________________________
Appeals from the United States District Court for the
Southern District of Mississippi
_________________________________________________________________
(March 11, 1993)
Before DAVIS and JONES, Circuit Judges, and PARKER1, District
Judge.
PARKER, District Judge:
The two Appellants were jointly tried before a jury for
conspiracy to possess and possession with intent to distribute
cocaine. Buckhalter was acquitted of all but the conspiracy charge
and was given a thirty-six (36) month prison term. Maston was
found guilty of five counts of possession, as well as the
conspiracy count, and was sentenced to life without parole. We
find no merit in any of the points of error presented in this
appeal, and therefore AFFIRM the convictions and sentences.
1 Chief Judge of the Eastern District of Texas, sitting by
designation.
1

FACTS
Defendant Maston was suspected by government agents of
organizing and supervising a crack cocaine distribution network out
of Gulfport, Mississippi. Defendant Buckhalter was suspected as
one of several people selling cocaine for Maston. Michael Johnson,
a confidential informant (CI), testified at trial that he made two
undercover drug purchases from Maston, in which Buckhalter
participated, at a local establishment named Skipper's Lounge.
Another CI, David Alan Clark, also bought cocaine from Maston at
Skipper's Lounge. This transaction was taped, and the tape was
admitted into evidence and played for the jury. Drug ledgers,
powder cocaine and rock cocaine were seized pursuant to a search
warrant executed at Skipper's Lounge after the undercover drug
buys. The Defendants stipulated at trial that all the drugs bought
and seized were controlled substances.
Kenney Rupert testified that he had been involved in Maston's
drug operation. He described the operation from receipt of drugs
from various suppliers through ultimate street sales, including the
respective roles of the two Appellants.
SEVERANCE
Buckhalter alleges that the trial court erred in denying
Buckhalter's motion to sever his trial from co-defendant Maston's.
A decision whether to sever the trials of persons who are indicted
together is within the discretion of the trial court. That
decision will not be disturbed unless the defendant can
2

demonstrate, one, "compelling prejudice" against which the trial
court was unable to afford protection, U.S. v. Massey, 827 F.2d
995 (5th Cir. 1987), and, two, the prejudice occasioned by the
ruling outweighed the government's interest in economy of judicial
administration. United States v. Martinez-Perez, 941 F.2d 295 (5th
Cir. 1991).
Buckhalter complains of the testimony of Katherine Marchant and
Leslie Lord, which concerned a positive result on a drug screening
test taken by Maston in connection with his employment. The
witnesses also related comments made by Maston that he was involved
in making and selling crack cocaine with "another guy," but there
was no implication in their testimony that the other guy was
Buckhalter. The Marchant/Lord testimony concerned only Maston, and
did not incriminate Buckhalter.
Buckhalter objected to the testimony, saying that the
statements amounted to a co-defendant confession in violation of
the Bruton rule. Bruton v. United States, 391 U.S. 123, 88 S.Ct.
1620 (1968) established that admission of a codefendant's
confession that implicates defendant at a joint trial violates
defendant's Constitutional right to confrontation, if the
codefendant does not take the stand. However, if a such a
statement does not implicate the co-defendant, no serious Bruton
problem is presented. United States v. Greer, 939 F.2d 1076, 1096
(5th Cir. 1991). We find no Bruton violation in the record of this
trial, because the statements attributed to Maston by the witnesses
did not implicate Buckhalter.
3

Further the Court gave the jury instructions both during
testimony and at the end of the trial to consider the case of each
defendant separately and individually, and to apply the evidence
only to the defendant to which it related. The jury's not guilty
verdicts as to defendant Buckhalter on counts 3, 4, 5, and 6 show
that they followed the lower court's instructions and in fact
considered the evidence as to each defendant separately.
"[A]cquittals 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." United States v.
Ellender, 947 F.2d 748, 755 (5th Cir. 1991).
Based on the foregoing, we find that the district court did not
abuse its discretion in denying Buckhalter's motion to sever his
trial from that of co-defendant Maston.
IN COURT EYEWITNESS IDENTIFICATION
Buckhalter moved to suppress the in court identification of
Buckhalter by CI Michael Johnson. Buckhalter now challenges the
district court's denial of his motion as error.
Johnson was allowed to make an in court identification of
Buckhalter, testifying that Buckhalter was present and assisted
Maston during drug sales to the CI. On cross examination Johnson
admitted that he could not identify Buckhalter to agents on the day
of the drug buy. The initial description he gave was of a man,
five foot nine inches to five foot ten inches tall and of medium
build. Buckhalter is six feet three inches tall and weighs two
4

hundred and thirty pounds. Johnson's description of Buckhalter's
hair and facial hair was accurate. Later, Johnson positively
identified Buckhalter from a single picture shown to him by a
government agent.
This Court set out the standard for reviewing district court
decisions concerning an allegedly tainted in court identification
in Herrera v. Collins, 904 F.2d 944, 946 (5th Cir. 1990):
In Simmons v. United States, 390 U.S. 377, 88 S.Ct.
967, 19 L.Ed.2d 1247 (1968) the Supreme court announced
the now familiar rule that a conviction based on an
eyewitness identification at trial following a pretrial
identification by photograph will be set aside only if
the identification procedure was so impermissibly
suggestive as to give rise to a substantial likelihood of
misidentification. As this Court has acknowledged, the
admissibility of identification evidence is governed by
a two-step analysis. Initially, a determination must be
made as to whether the identification procedure was
impermissibly suggestive. Next, the court must determine
whether, under the totality of the circumstances, the
suggestiveness leads to a substantial likelihood of
irreparable misidentification.
First, we find that showing a single photograph of the suspect
to Johnson, after Johnson said he could not identify the man, was
impermissibly suggestive. Herrera v. Collins, 904 F.2d 944, 946
n.2 (5th Cir. 1990).
Second, we examine the totality of circumstances, focusing on
the indicia of reliability of the in court identification, to
determine if the suggestiveness required exclusion of the
identification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243,
53 L.Ed.2d 140 (1977). Johnson testified that he had known
Buckhalter slightly for several years, and had seen and talked to
him at the car repair shop where Johnson worked, so this was not a
5

case of a brief encounter with a total stranger. Further, on an
audio tape of the meeting in question a voice identified as
Maston's says, "Buck, get an ounce, need an ounce." Testimony from
Johnson, as well as others, established that Buckhalter was known
by the nickname "Buck." We find, under the totality of the
circumstances, that there is not a substantial likelihood that
showing Buckhalter's photograph to Johnson led to irreparable
misidentification.
REMOVAL OF A JUROR
Both Appellants urge us to reverse and remand this case for a
new trial because the district court abused its discretion in
removing a juror, and substituting the alternate after the jury was
sworn.
During voir dire, the judge asked the jury panel if anyone had
"ever been involved in a criminal matter in any court that would
concern yourself or a member of your family or a close friend,
either as a defendant, a witness or a victim." Larry Johnson made
no response to the judge's question. The jury, including Johnson,
was selected, sworn and empaneled. The court then recessed for the
night.
The next morning, before opening statements, the government
moved to strike Johnson. One of the government's agents thought he
recognized the juror, but could not place him. Based on the
agent's recognition, the government ran a criminal background check
on the juror. The check revealed that he had been arrested ten
6

years earlier by the Harrison County Sheriff's Office, charged with
defrauding the Mississippi Employment Security Commission, and
released on bond after booking. No information was available from
which to determine whether the charge was a felony or a
misdemeanor, or how the case was resolved. Both defense attorneys
stipulated that the individual who had been arrested was the same
person as the juror. The Court advised the parties that if it was
necessary to call the juror in as a witness and question him about
the issue, the Court felt that the juror would be irreparably
tainted, and would have to be discharged. Neither Appellant took
issue with the court's position or asked to call the juror for
further questioning. Based on the information available, the court
held that the juror's failure to disclose his earlier arrest by the
law enforcement agency that was providing a number of witnesses in
this case created an inference of bias, and discharged Johnson. He
was replaced by the alternate juror who had already been selected
and sworn. The Court then overruled Defendants motion for
mistrial. After the Court excluded the juror and overruled
the motion for mistrial, Defendants asked that the juror be put on
the stand and questioned concerning the alleged arrest to develop
the record for appeal. The juror denied ever having been arrested
or taken to jail or appearing in court, while admitting that there
was an instance where the Mississippi Employment Security
Commission claimed he owed them some money. The juror further
testified that he had no hard feelings toward the Harrison County
Sheriff's Department.
7

The Supreme Court has provided us guidance in reviewing
District Court rulings on challenges to jurors who do not candidly
answer questions put to them during voir dire. In McDonough Power
Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845 (1984)
a party sought a new trial, having found out after the verdict was
returned that a juror failed to reveal information in response to
a voir dire question. The Court held, that to obtain a new trial
in such a situation, a party must demonstrate that a juror failed
to answer honestly a material question on voir dire, and then
further show that a correct response would have provided a valid
basis for a challenge for cause. McDonough Power Equipment, Inc.
v. Greenwood, 464 U.S. at 556, 104 S.Ct. at 850 (1984). The proper
inquiry for this Court in reviewing the ruling is whether the
district court abused its discretion in dismissing the juror. The
District Court's judgment must be guided by the underlying purpose
of voir dire and jury selection, that is, to provide the parties
the benefit of an impartial trier of fact. Id. at 550, 847. In
criminal cases, doubts about the existence of bias should be
resolved against permitting the juror to serve. United States v.
Nell, 526 F.2d 1223, 1230 (5th Cir. 1976).
The Court made its decision, based on the rather thin evidence
available for consideration. Although the Government did not prove
actual bias on the part of the juror, the district court was well
within its discretion to conclude that the juror's concealment of
a prior arrest made by a law enforcement agency that was providing
witnesses for the prosecution amounted to implied bias. U.S. v.
8

Scott, 854 F.2d 697 (5th Cir. 1988). The Appellants offered
nothing to rebut the Government's assertion that the juror had
concealed his prior arrest record, until after the Court had ruled.
Based on the conflicting evidence in the record before us (the
testimony from a Government agent that the juror had an arrest
record, and the juror's denial of the fact without further
explanation) we cannot say that the Court abused its discretion in
dismissing the juror.
BUCKHALTER'S SENTENCE
Buckhalter was found guilty by the jury of Count I of the
Indictment which charged that "from an unknown date, but at least
as early as 1988 and continuing through March 1991, [Buckhalter and
his codefendants] conspired to distribute and possess with intent
to distribute cocaine and approximately 50 grams or more of cocaine
base," in violation of 21 U.S.C. �846. The guideline for a
violation of 21 U.S.C. �846 is found at U.S.S.G. �2D1.4(a) which
provides that a conviction of a conspiracy to commit any offense
involving a controlled substance, will be assigned to the same
offense level as if the object of the conspiracy had been
completed. The controlling guideline is therefore U.S.S.G. �2D1.1
which addresses unlawful manufacturing, importing, exporting, or
trafficking of drugs, including possession with intent to commit
these offenses. Pursuant to the Drug Quantity Table in U.S.S.G.
�2D1.1(c), an enterprise involving 15 kilograms or more of cocaine
base has a base level offense of 42. At the sentencing hearing,
9

the district court found that the 16.9 kilograms, as used by the
Probation Officer to determine the relevant conduct to compute the
guidelines, was appropriate. Buckhalter's objection in the
district court and his position on appeal amounts to a claim that
the evidence was insufficient to support the district court's
finding that the conspiracy involved 16.9 kilograms of cocaine
base.
Relevant conduct may extend beyond that necessary for the
finding of guilty. "Establishing this conduct does not require
proof beyond a reasonable doubt. It only requires factual findings
by the sentencing court by a preponderance of the evidence, which
are subject to the 'clearly erroneous' standard of review on
appeal." U. S. v. Mourning, 914 F.2d 699, 706 (5th Cir. 1990).
Government's witness, Kenny Rupert, testified at trial that
beginning in 1988 or 1989 he bought and cooked and sold cocaine
with Appellants. He had extensive first hand knowledge of the
suppliers, the times, locations and amounts of drugs involved in
every phase of the distribution business. Appellants complain that
his testimony was not specific enough on the dates or amounts of
drugs involved to meet the specificity requirements set out in
United States v. Phillippi, 911 F.2d 149 (8th Cir. 1990), Cert.
denied ____U.S. ____, 111 S.Ct. 702, 112 L.Ed.2d 69 (1991). The
Fifth Circuit has never adopted the Phillippi standard, and the
case before us does not present a question that requires us to
decide whether or not to adopt it. Phillippi was found guilty of
possession with intent to distribute two kilograms of cocaine. The
10

offense date was in February 1988. A DEA informant testified at
trial concerning the drugs she had sold to Phillippi during 1986
and 1987. At sentencing, the district court, relying on that
testimony, found that Phillippi had possessed at least ten
kilograms of cocaine through transactions which were part of the
same course of conduct as the offense of conviction. The evidence
before the court concerned drug deliveries that could have occurred
as remotely as two years prior to the charged offense.
Additionally, the witness could only guess about the amount of
drugs delivered based on the size of the outside of heavily wrapped
packages. The Eighth Circuit held that the Court erred in
including the kilograms from these deliveries in calculation of
Phillippi's sentence because the evidence did not clearly establish
the dates on which the deliveries were made or the amounts of drugs
delivered. U.S. v. Phillippi, 911 F.2d 149, 151 (8th Cir. 1990).
The testimony in the present case clearly established that the
drug transactions occurred within the time frame set out in the
indictment for the conspiracy. The testimony also established,
within a specific range, the amount of drugs involved in the
transactions. Phillippi sets limits on the specificity required of
evidence that is used to establish conduct relevant to a drug
possession charge. Clearly, evidence that a transaction occurred
during the conspiracy is specific enough as to date to be
considered in sentencing the convicted conspirator. Likewise,
testimony couched in terms of a range of amounts allows the court
to fairly calculate the amounts involved by using the lower end of
11

the range. Therefore the Court's determination that the
conspiracy involved 16.9 kilograms of cocaine is not clearly
erroneous.
Buckhalter also complains that the district court denied him a
downward departure on the basis that he was a minor participant,
that is, a participant who is less culpable than most other
participants. We hold that the district court's decision in this
respect is well supported by the record.
MASTON'S SENTENCE
Maston also asserts that the evidence was not sufficient to
support the district court's finding that in excess of 16 kilograms
of drugs were involved in this case. His argument is essentially
identical to Buckhalter's. Based on the foregoing discussion, we
hold that the district court's finding in regard to the amount of
drugs is not clearly erroneous.
Maston next argues that the sentencing guidelines in effect in
1988 should have been used in calculating his base offense level
instead of the amended guidelines that were in effect in 1990. He
alleges the use of the 1990 amendments to the guidelines violated
the Ex Post Facto Clause of the United States Constitution.
This issue is settled in the Fifth Circuit. A conspiracy is a
continuing offense. So long as there is evidence that the
conspiracy continued after the effective date of the guidelines,
the Ex Post Facto Clause is not violated. U. S. v. Devine, 934
F.2d 1325, 1332 (5th Cir. 1991). The evidence showed that the
12

conspiracy in question continued until March 1991 when Maston was
arrested. The district court's use of the amendments in effect at
the time of the conclusion of the conspiracy did not violate the Ex
Post Facto Clause.
For the foregoing reasons, we AFFIRM the convictions and
sentences of Buckhalter and Maston.
13