                        REVISED DECEMBER 20, 2002

                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit



                                No. 01-30984


                        UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,


                                   VERSUS


   BYRON DUFFAUT, also known as Byron Dufaunt, and KEVIN HUFF,

                                                   Defendants-Appellants.




            Appeals from the United States District Court
                for the Eastern District of Louisiana


                              December 3, 2002
Before HIGGINBOTHAM, DUHE, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
     Byron Duffaut and Kevin Huff were both charged in a three-
count    indictment    with   conspiracy,   possession    with    intent   to
distribute over 50 grams of cocaine base, and possession with the
intent    to   distribute     approximately      250   grams     of   cocaine
hydrochloride. A jury returned guilty verdicts against Duffaut and
Huff on all counts.      Duffaut was sentenced to concurrent 200-month
terms of imprisonment, and Huff was sentenced to concurrent 300-
month terms of imprisonment.        Both Duffaut and Huff filed timely
notices of appeal.
                              BACKGROUND
     The charges against Duffaut and Huff stem from the following
events.   Acting on a tip from a confidential informant (CI), Drug
Enforcement Administration (DEA) agents established surveillance on
a black Lincoln Continental parked in front of a Pauger Street
residence in New Orleans.    The CI informed agents that a black male
named “Kevin” would be using this vehicle to transport a large
amount of cocaine.    The CI further indicated that the Lincoln had
a hidden compartment in the front dashboard, and that another
individual would actually drive the vehicle while “Kevin” followed
in a green Camaro.    A computer check of the Lincoln’s license plate
revealed that the vehicle was registered to Huff. Agents observed
Huff exit the Pauger Street residence and enter a green Camaro,
where he retrieved a plastic bag that appeared to be containing
something.    Huff carried the bag to the Lincoln, opened the
driver’s side door, and sat in that vehicle.         At some point,1
Duffaut came out of the house and was handed “something” by Huff
near the Camaro.     Duffaut then got in the Lincoln and Huff got in
the Camaro, and they drove off in separate directions.
     DEA agents followed the Lincoln eastbound on Interstate-10
until it exited the highway and pulled into an Exxon station.
There, Duffaut used a public telephone before Huff arrived in the
Camaro.   Huff, who was now accompanied by his nephew, Jermaine
Stovall, gave Duffaut “some type of hand signal.”      Both vehicles



     1
      DEA Agent Eric Covell testified on direct examination that
Duffaut emerged from the house after Huff got out of the Lincoln.
On redirect, however, the Government read from the DEA incident
report, which indicated that Duffaut exited the house as Huff was
getting into the Lincoln.

                                   2
then returned to the interstate and traveled eastbound.
       When     the     vehicles        reached       Slidell,       Louisiana,        local        law
enforcement officers, working in tandem with the DEA agents, pulled
the Lincoln over for speeding.                         The Camaro was also stopped.
Duffaut       stated      that     he     was    on     his    way     to    the     casinos        in
Mississippi.           However, during a pat-down for weapons, it was
discovered that Duffaut had no cash or credit cards.                                       Duffaut
consented to search the Lincoln, and a drug-sniffing canine alerted
to the passenger side of the vehicle.                      Once inside the Lincoln, the
canine began “scratching aggressively” at the air bag compartment.
A plastic shopping bag containing a large amount of crack cocaine
and    a    large     amount       of    powder       cocaine      was      found    inside         the
compartment.2           Duffaut and Huff were subsequently placed under
arrest.
       While en route to a holding cell, Duffaut told DEA Agent Eric
Covell that he wanted to cooperate.                         Duffaut stated that he had
made three prior trips to Houston to deliver drugs, and that he was
paid $100 to $500 per trip.
       Prior to trial, the Government filed a notice of its intent to
introduce evidence of prior bad acts in its case-in-chief against
Huff,      pursuant       to   FED. R. EVID.           404(b).          In   particular,            the
Government sought to introduce evidence of a 1991 drug conviction,
and two drug arrests that occurred in 1994 and 1999, respectively.
Huff filed a memorandum opposing the introduction of the prior bad
acts evidence.          The district court ruled that the 1999 drug arrest
was admissible, but denied the Government’s request with respect to
the 1991 and 1994 offenses.


       2
         The parties stipulated at trial that the drugs retrieved from the Lincoln were, in fact,
cocaine base, totaling 491.4 net grams, and cocaine hydrochloride, totaling 249.5 net grams.

                                                  3
      In other pretrial motions, Huff moved to suppress introduction
of the seized drugs, arguing that the officers lacked probable
cause to stop the vehicles because the alleged traffic violation
was fabricated.        He also asserted that the officers were required
to obtain his, rather than Duffaut’s, consent to search the Lincoln
since the officers knew he owned the vehicle, and because he was
present during the stop.          The district court denied the motion.
      At trial, the Government called former New Orleans police
officer Clinton Hajek for the purpose of introducing Huff’s prior
1999 arrest.      Hajek testified that, on May 18, 1999, he and his
partner stopped a Pontiac because they saw its passenger drinking
from an open container.           The passenger, identified as Huff, fled
and Hajek gave chase.         Huff was apprehended and brought back to the
Pontiac, which was registered in Huff’s name, and drugs were found
in the car as well as in Huff’s underwear.
      Hajek testified that $5,702 in cash was found under the
passenger seat of the car, and that a digital scale was discovered
in the trunk.     A subsequent search of Huff’s residence turned up a
handgun, vehicle registration documents, a Greyhound bus ticket
from Houston      to    New    Orleans    in    Stovall’s   name,   and   numerous
telephone records in Huff’s name which documented calls between
Houston, Slidell, and New Orleans.                Hajek acknowledged that the
1999 incident was pending trial.
      The Government introduced the physical evidence, as described
by Hajek, that was retrieved in connection with the 1999 arrest,
including:       1) the drugs seized from the car and from Huff’s
underwear; 2) the digital scale found in the trunk; 3) the property
receipt for the cash; 4) the handgun found at Huff’s residence;
and, (5) the vehicle registration, travel, and phone documents.
The   district    court       permitted   the    Government   to    publish   this

                                          4
evidence to the jury, and Huff did not renew his 404(b) objection
during Hajek’s testimony or at the time the physical evidence was
offered by the Government.   Although the district court did not
give a limiting instruction to the jury when the 404(b) evidence
was introduced, such an instruction was later included in the jury
charge at the conclusion of the trial.
     During closing arguments, the prosecutor made the following
statements:
          What you all have to decide today is whether
          or   not   these   two    guys are   guilty,
          individually; whether or not they worked
          together; whether or not they were in
          possession of the drugs; and whether or not
          it’s right what they did.

          If their behavior or what they did is okay,
          then they should go free.     If having three
          quarters of a kilogram of crack and powder
          cocaine is okay, they should go home right
          now, because they deserve it; if that behavior
          is acceptable.

          But, I don’t think it is. The law says it
          isn’t.
     Duffaut objected to the prosecutor’s statement regarding his
personal belief, which the district court sustained.       Shortly
thereafter, the prosecutor argued:
          And, that’s what this is. From New Orleans to
          St. Tammany.    It doesn’t just affect one
          street and one corner at 2341 Pauger Street.
          This goes a long way.

          As you heard the expert, Chris Ortiz, talk
          about the amount, thousands and thousands of
          hits. That’s not just one guy doing his own
          business in the back of his house, wanting to
          be left alone. That’s on the street, that’s
          one person, two people, three people, four
          people, family after family, person after
          person.


                                5
     Duffaut and Huff moved for a mistrial, arguing that the

prosecutor’s comments were “clearly designed to inflame[].”               The

district court denied the motion and admonished the jury:

           Ladies and gentlemen, you’re here to determine
           whether there’s been a violation of law. It
           has nothing to do with any lawyer’s argument
           as to what he thinks or she thinks is right or
           wrong.

           So, at this point, . . . I think Counsel is
           almost finished, but that’s your job . . . to
           apply the law, as I explain it to you, to the
           facts that you have heard here today and
           testified to by the witnesses and the evidence
           that will be brought to you in the jury room.
           So, you’re to determine whether a crime has
           occurred and whether the government has proven
           it.

           So, as I told you before, what the lawyers say
           is not evidence. It’s their presentation of
           what the evidence is, but their personal
           opinion as to whether something was proven or
           whether it’s right or wrong is not significant
           to you.

     Later, when recounting the sequence of events, the prosecutor

indicated that the DEA agents saw Huff and Duffaut talking outside

the house on Pauger while Huff was holding the plastic bag.

           Mr. Huff has the bag. Ms. Jusselin says that
           [Duffaut] is an unwitting and unknowing
           “mule.”

           Kevin Huff is standing there in front of him
           with the bag.

     Duffaut     again     objected,   arguing   that   the    prosecutor’s

statements were unsupported by the trial testimony.           The district

court   overruled    the    objection,     stating   that   “the   jury   can

remember.”     The prosecutor continued:

                                       6
             He’s standing      there with the bag. Kevin Huff
             is not hiding      it. He didn’t do it outside of
             Mr. Duffaut’s      presence. He didn’t come there
             with the car.       He’s standing out front, Kevin
             Huff has got       the bag in his hand, standing
             there. Byron       Duffaut is standing right next
             to him.

During deliberations, the jury sent out the following note:

             Is there any actual testimony by any of the
             witnesses that place both defendants outside
             the cars with the bag at the same time?

The     district    court   instructed         the     jury   to    rely   upon    its

recollection of the testimony as presented at trial.                         The jury

subsequently returned guilty verdicts against Duffaut and Huff on

all counts.

       Duffaut     was   sentenced   to       concurrent      200-month    terms   of

imprisonment.       Prior to trial, the Government filed a Bill of

Information to establish that Huff pleaded guilty to possession of

crack    cocaine    in   1991.     Huff       filed    written     objections.      At

sentencing, Huff’s 1991 prior felony drug conviction was proved up

by    the   Government    for    purposes      of     increasing    Huff’s    minimum

sentence to 20 years of imprisonment, pursuant to § 841(b)(1)(A).

Huff argued that the prior guilty plea conviction had been expunged

and could therefore not be used to enhance his sentence.                           The

objection was overruled, and Huff was sentenced to concurrent 300-

month terms of imprisonment.          Duffaut and Huff both filed timely

notices of appeal.       On appeal, Huff argues that the district court

erred in denying his motion to suppress, that the district court

committed plain error in admitting Huff’s prior drug arrests, and

                                          7
that the district court improperly enhanced Huff’s sentence.                    Both

Duffaut and Huff also appeal claiming that the prosecutor’s remarks

during closing arguments rendered their trial fundamentally unfair.

                                   DISCUSSION

Did the district court err in denying Huff’s motion to suppress?

      Huff argues that the district court erred in denying his

motion to suppress.     He contends that the search of the Lincoln was

illegal since the officers failed to obtain his consent, even

though they knew Huff owned the vehicle and that he was “being

detained nearby.”       Alternatively, he asserts that both he and

Duffaut were illegally detained and that Duffaut’s consent to the

search was coerced because the officer retained Duffaut’s license

and registration when asking for his permission to search the

Lincoln.

      In reviewing a district court’s decision on a motion to

suppress,    this   court   reviews      questions    of     law   de   novo,   “but

questions of fact are accepted unless the district court’s findings

were clearly erroneous, or influenced by an incorrect view of the

law.” United States v. Gonzales, 79 F.3d 413, 419 (5th Cir. 1996).

The   evidence   is    viewed    in   the    light    most    favorable    to   the

prevailing    party,    unless    this    view   is   inconsistent       with   the

district court’s findings or is clearly erroneous based on the

evidence as a whole.            Id.   A factual finding is not clearly

erroneous if it is “plausible in the light of the record as a


                                         8
whole.”   United States v. Edwards, 65 F.3d 430, 432 (5th Cir.

1995).

     The Fourth Amendment prohibition against unreasonable searches

and seizures extends to vehicle stops and temporary detainment of

a vehicle’s occupants.     United States v. Shabazz, 993 F.2d 431, 434

(5th Cir. 1993).       Once a dog has alerted to the presence of

narcotics, agents have sufficient probable cause to conduct a

search of the vehicle.         United States v. Seals, 987 F.2d 1102,

1106-07 (5th Cir. 1993); United States v. Dovali-Avila, 895 F.2d

206, 207 (5th Cir. 1990).

     Huff came under investigation when the CI advised the DEA

agents that Huff would be transporting a large amount of cocaine to

Slidell in a black Lincoln Continental.        The CI further indicated

that another individual would actually drive the Lincoln while Huff

followed in    his   Camaro.     This    information,   coupled   with   the

corroborating observations made by the agents, supported the stops

of the vehicles and the detention of Huff and Duffaut pending the

officers’ investigation.       See United States v. Holloway, 962 F.2d

451, 459 & n.23 (5th Cir. 1992) (finding that a tip from a

confidential   informant    which   is   sufficiently   corroborated     may

furnish the requisite reasonable suspicion to make an investigatory

stop).

     Shortly after Duffaut was pulled over, officers conducted a

free-air search of the Lincoln by walking around it with a drug-


                                     9
sniffing dog.       Duffaut’s consent was not needed to perform this

free-air search.         United States v. Hernandez, 976 F.2d 929, 930

(5th Cir. 1992) (holding that a canine sniff of the exterior of a

vehicle does not constitute a search within the Fourth Amendment).

Once the canine alerted to the passenger-side door, the officers

had probable cause to search the car.                Dovali-Avila, 895 F.2d at

207 (finding that a canine alert is sufficient to create probable

cause to conduct a warrantless vehicle search).                        Accordingly,

neither Duffaut’s nor Huff’s consent to search the Lincoln was

required in this case.          Huff, therefore, has failed to demonstrate

that the district court erred in denying his motion to suppress.

Did the district court err in admitting Huff’s prior drug arrest?

       Huff argues that the district court abused its discretion in

admitting evidence of his prior 1999 drug arrest.                    In particular,

he   contends     that    the   admission     of    the   physical    evidence   was

cumulative and unduly prejudicial.             Huff asserts that, absent the

admission of the prior arrest evidence, there was insufficient

evidence to support his convictions on the instant charges.

       Although    both     Huff   and   the       Government   state     that   the

applicable standard of review is for abuse of discretion, it is

not.    Though Huff filed a pretrial objection to the Government’s

notice of intent to use the 1999 arrest, he failed to renew his

objection at trial to the admission of both the testimonial and

physical Rule 404(b) evidence.              Therefore, the district court’s


                                         10
admission of this evidence is subject to plain-error review.

United States v. Graves, 5 F.3d 1546, 1551 (5th Cir. 1993) (holding

that where appellant failed to renew an objection made by motion in

limine before the disputed evidence was introduced at trial, review

is for plain error); FED. R. EVID. 103(d).         To demonstrate plain

error, an appellant must show clear or obvious error that affects

his substantial rights; if he does, this court has discretion to

correct a forfeited error that seriously affects the fairness,

integrity, or public reputation of judicial proceedings, but is not

required to do so.      United States v. Calverley, 37 F.3d 160, 162-64

(5th Cir. 1994) (en banc).

     Rule 404(b) precludes the admission of evidence “of other

crimes, wrong doings, or acts . . . to prove the character of a

person in order to show action in conformity therewith.               It may,

however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. ...”        This court has established a

two-part    test   to   determine   the   admissibility   of   Rule    404(b)

evidence.    United States v. Beechum, 582 F.2d 898, 911 (5th Cir.

1978) (en banc).         The extrinsic-offense evidence must (1) be

relevant to an issue other than the defendant’s character, and (2)

must possess probative value which is not outweighed by undue

prejudice.    United States v. Bentley-Smith, 2 F.3d 1368, 1377 &

n.11 (5th Cir. 1993).


                                     11
      Similarity of the extrinsic offense to the offense charged is

the standard by which relevancy is measured under Rule 404(b).

United States v. Gordon, 780 F.2d 1165, 1173 (5th Cir. 1986).              If

offered to show intent, relevancy of the extrinsic offense is

determined by comparing it to the state of mind of the defendant in

perpetrating the respective offenses.       Id.   “The reasoning is that

because the defendant had unlawful intent in the extrinsic offense,

it is   less likely that he had lawful intent in the present

offense.”   Id.

      By pleading not guilty, Huff placed his intent at issue.

United States v. Chavez, 119 F.3d 342, 346 (5th Cir. 1997).

Accordingly, Huff’s 1999 drug arrest was relevant under Rule 404(b)

because it was highly probative of Huff’s knowledge and intent to

commit the charged offenses.      Id.; United States v. Gadison, 8 F.3d

186, 191-92 (5th Cir. 1993) (finding that a prior conviction for

possession of cocaine was admissible because it was probative of

the   defendant’s   intent   in   charged   offense   of    conspiracy    to

distribute cocaine).     However, rather than introducing evidence

sufficient to merely establish the prior drug arrest, Huff points

out that the Government elicited detailed testimony from the

arresting   officer,   including    facts   unrelated      to   the   charged

offenses.   In addition, the Government introduced and published to

the jury the physical evidence collected for the prior arrest,

including the seized drugs, the digital scale found in the trunk,


                                    12
and the     handgun discovered at Huff’s residence.                     Huff argues that

the prejudicial effect of this evidence outweighs its probative

value.     The district court, however, issued a limiting instruction

to the jury regarding this evidence stating:

            You have heard evidence of acts which may be similar
       to those charged in the Indictment, but which were
       committed on other occasions. You must not consider any
       of this evidence in deciding if the Defendant committed
       the acts charged in the Indictment. However, you may
       consider this evidence for other very limited purposes.
            If you find beyond a reasonable doubt, from other
       evidence in this case, that the Defendant did commit the
       acts charged in the Indictment, then you may consider
       evidence of the similar acts allegedly committed on other
       occasions to determine:
            Number one, whether the Defendant had the state of
       mind or intent necessary to commit the crimes charged in
       the indictment . . . .

R. 4, 290-91.3        As the district court issued a limiting instruction

as to the evidence, we find that the court did not commit plain

error in admitting the evidence.                   See United States v. Willis, 6

F.3d 257, 262 (5th Cir. 1993) (stating that “[t]he danger of unfair

prejudice to [the defendant] was minimized by the district court’s

careful instructions to the jury, which made it clear that the

prior convictions could not be considered unless and until the jury

first found that [the defendant] had participated in the charged

acts, and, even then, could be considered only for the purpose of

determining whether [the defendant] had the state of mind or intent



       3
        The district court also instructed that the evidence could be considered to determine
motive or opportunity to commit the crime, whether the Defendant acted according to a plan, or
whether the Defendant committed the acts accused of by accident or mistake.

                                              13
necessary to commit the crime . . . .”); see also United States v.

Leahy, 82 F.3d 624, 637 (5th Cir. 1996) (noting that though some

danger of prejudice is always present, “exclusion of extrinsic

evidence    based   on    its     prejudicial     effect   should    occur    only

sparingly”).

Did the district court improperly enhance Huff’s sentence?

     Huff next argues that the district court erred by enhancing

his sentence based on his 1991 guilty plea conviction.               Because the

1991 conviction had no impact on              Huff’s sentence, the issue is

irrelevant.

     Huff’s presentence report (PSR) did not include the 1991

conviction in its criminal history point calculation for purposes

of determining Huff’s guideline sentencing range of 262-327 months.

As noted by the Government, the 1991 conviction was merely used to

increase Huff’s minimum statutory sentence to 20 years, pursuant to

§ 841(b)(1)(A).         Because the 1991 conviction did not factor into

the PSR’s guideline calculation, and as Huff’s sentencing range

fell above the 20-year statutory minimum, we reject his argument

and affirm the district court’s decision.

Did the prosecutor’s closing remarks prejudice Duffaut’s and Huff’s

substantive rights?

     As    his   sole    issue     on   appeal,   Duffaut   argues     that   the

prosecutor’s      remarks    at    closing      were   improper     because   the

prosecutor:      1) interjected his personal opinion by stating he did


                                         14
not believe that having three quarters of a kilogram of crack and

powder cocaine was “okay,” 2) attempted to inflame the jury by

appealing to their community conscience, and 3) mischaracterized

the evidence by stating that Duffaut and Huff were standing next to

each other while Huff held “the bag.”     Duffaut contends that he was

denied a fair trial as a result of these remarks.       Huff raises the

same issue in his brief, adopting by reference Duffaut’s argument

in its entirety pursuant to FED. R. APP. P. 28(I).

     Applying a two-step analysis to charges of prosecutorial

misconduct, this court decides:          1) whether the prosecutor’s

comments were improper, and 2) if the comments were improper,

whether they prejudiced the defendant’s substantive rights. United

States v. Lankford, 196 F.3d 563, 574 (5th Cir. 1999).        Regarding

the second prong, this court considers 1) the magnitude of the

statement’s prejudice, 2) the effect of any cautionary instructions

given, and 3) the strength of the evidence of the defendant’s

guilt.   Id.

     Here, the prosecutor’s comments were arguably designed to call

on the jurors to act as the conscience of the community.         On the

whole,   the   prosecutor’s   comments   regarding   drug   distribution

affecting “family after family” and “person after person” were

relatively benign, and, a prosecutor may “‘appeal to the jury to

act as the conscience of the community[,]’” so long as the comments

are not “‘calculated to inflame[.]’”      United States v. Brown, 887


                                   15
F.2d 537, 542 (5th Cir. 1989)(citation omitted).                 As for whether

the prosecutor’s statement concerning his personal belief was

improper, any prejudice was remedied by the district court issuing

a contemporaneous curative instruction.               The essence of this

instruction was also repeated to the jury at the conclusion of the

trial.

      As   for   Duffaut   and    Huff’s   argument    that   the    prosecutor

mischaracterized the evidence, the appellants rely in part on the

fact that the jury issued questions to the district court regarding

whether there was any actual testimony by any of the witnesses that

placed both of the defendants outside the cars with the bag at the

same time.       However, the jury’s inquiry whether there was any

evidence that placed Duffaut and Huff together with the bag does

not   indicate     that    they    were    swayed     by   the     prosecutor’s

characterization of the evidence, and, even if the jury believed

the prosecutor’s statement that Duffaut and Huff were together with

the bag, this fact would not have appreciably tipped the balance of

the evidence.     Contrary to Duffaut’s argument, the jury could have

inferred Duffaut’s knowledge of the drugs based on his post-arrest

confession concerning his three prior drug deliveries to Houston.

Also, the jury was presented with evidence that Huff transferred a

plastic bag into the car that was then driven by Duffaut and, when

pulled over, police officers recovered a plastic bag from the car

Duffaut was driving containing narcotics. Whether Huff was holding

the bag while talking to Duffaut would not have significantly

                                      16
altered the evidence underlying the convictions. For these reasons,

the appellants’ prosecutorial misconduct argument is unavailing and

we affirm the jury’s conviction.

                                              CONCLUSION

             Having carefully reviewed the record of this case and the

parties’ respective briefing and for the reasons set forth above,

we conclude that the district court did not err in denying Huff’s

motion to suppress, in admitting evidence of Huff’s prior drug

arrest, or in enhancing Huff’s sentence. We also conclude that the

prosecutor’s closing remarks did not prejudice Huff and Duffaut’s

substantive                    rights.   We   therefore    AFFIRM   Huff   and   Duffaut’s

conviction.

AFFIRMED.




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