                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                      REVISED JULY 15, 2005
              IN THE UNITED STATES COURT OF APPEALS         March 31, 2005

                      FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                Clerk
                      ____________________

                          No. 04-30089
                      ____________________


UNITED STATES OF AMERICA

               Plaintiff - Appellee

v.

LAWRENCE CLYDE BRINGIER, JR, also known as Junior, also
known as Bread

               Defendant - Appellant
_________________________________________________________________

           Appeal from the United States District Court
        for the Middle District of Louisiana, Baton Rouge
                           No. 01-172-D
_________________________________________________________________

Before KING, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

PER CURIAM:

     On August 26, 2003, a jury convicted Lawrence Clyde

Bringier, Jr. of one count of conspiracy to distribute more than

five kilograms of cocaine under 21 U.S.C. § 846, two counts of

money laundering under 18 U.S.C. § 1956(a)(1)(B)(i) and 18 U.S.C.

§ 2, and one count of structuring transactions to evade reporting

requirements under 31 U.S.C. § 5324(a)(3) and 18 U.S.C. § 2.        At

sentencing, the district court set Bringier’s base offense level

on the narcotics count at thirty-eight, calculating the amount of

drugs at 120 kilograms of cocaine and two kilograms of cocaine
base (crack).   Pursuant to the Presentence Report (PSR),

Bringier’s base offense level for each count included two levels

for obstruction of justice.   In addition, the court enhanced

Bringier’s base offense level by two levels on the narcotics and

money laundering counts because of his role as a leader or

organizer.   The district court then sentenced Bringier to 360

months imprisonment on the conspiracy count, 240 months

imprisonment on each of the money-laundering counts, and sixty

months imprisonment on the structuring-transactions-to-evade-

reporting-requirements count, to run concurrently.   Bringier now

appeals his conviction and sentence, alleging various errors by

the district court.   Addressing each of these alleged errors in

turn, we AFFIRM.   We address Bringier’s challenges to his

conviction in summary fashion.   We give more fulsome treatment to

his Booker-based challenge to his sentence.   United States v.

Booker, 125 S. Ct. 738 (2005).

     First, the district court did not err by deciding not to

quash the indictment for violation of the Kastigar principle

because Bringier waived his right to a Kastigar hearing.     See

Kastigar v. United States, 406 U.S. 441 (1972). In May 2000,

Bringier’s wife and stepdaughter were kidnapped and murdered.      In

connection with an ensuing investigation, the government granted

Bringier testimonial immunity in return for information he might

have regarding his family’s death.   In a letter to Bringier’s

attorney, Thomas D’Amico, the government confirmed the oral

                                 2
immunity agreement and noted two conditions to the agreement: (1)

that Bringier must tell the complete truth; and (2) that Bringier

agreed to relieve the government of the derivative evidence

burden of proof arising from Kastigar.    See id.

       On October 31, 2001, Bringier was charged in a superceding

indictment with, inter alia, conspiracy to distribute more than

five kilograms of cocaine, money laundering, and structuring

transactions to evade reporting requirements.    On July 3, 2003,

Bringier filed a motion for a Kastigar hearing, requesting that

the government show that it did not use his immunized statements

or the fruits of those statements to develop either the

indictment or the evidence sought to be introduced at trial.

Bringier asked the district court to suppress the immunized

testimony and any evidence derived therefrom and to dismiss the

indictment in the event the government was unable to meet its

burden.    The government opposed the defendant’s motion, arguing,

inter alia, that Bringier had waived his right to a

Kastigar hearing in the immunity agreement.

       On August 12, 2003, the district court held a hearing on

Bringier’s motion.    At the hearing, the government presented two

witnesses: Federal Bureau of Investigation Special Agent Roger

White and Bringier’s former attorney, Thomas D’Amico.1    Both

   1
          D’Amico withdrew from representing Bringier approximately
two months after Bringier’s arraignment on the narcotics and money
laundering charges when he learned that his former client, Ken
Barrow, was identified by the government as a prosecution witness.

                                  3
witnesses testified that Bringier entered into the immunity

agreement described in the government’s letter which specifically

stated that Bringier waived his right to a Kastigar hearing.      At

the conclusion of the hearing, the district court denied

Bringier’s Kastigar motion, reasoning that Bringier had waived

his right to such a hearing.

     On appeal, Bringier argues that his Sixth Amendment right to

conflict-free representation was violated because D’Amico had a

conflict of interest, and thus that D’Amico’s testimony should be

struck and the case should be remanded to the district court for

another hearing on his Kastigar motion.    Specifically, Bringier

argues that the district court erred in failing to take into

account D’Amico’s conflict of interest.    Bringier claims that

after D’Amico withdrew from representing him in the present case,

D’Amico began representing James Eugene Warner, III, one of

Bringier’s co-defendants.    Bringier also claims that D’Amico had

previously represented Ken Barrow,2 a cooperating informant who

ultimately testified against Bringier at trial.   D’Amico

represented Barrow in 1998 and in 2000 during the time D’Amico

was representing Bringier.

     We disagree with Bringier’s contention that D’Amico




     2
          Bringier appears to confuse Ken Barrow with Lawrence
Harvey, and thus incorrectly states in his brief that D’Amico
represented Lawrence Harvey.

                                  4
testified at the hearing while laboring under a conflict of

interest.   The timeline of this case is indicative:   When

Bringier entered into the immunity agreement, D’Amico (who was

then representing him) no longer represented Barrow and did not

yet represent Warner.   D’Amico could not have known at that time

that Barrow, his former client, would become a prosecution

witness in the case against Bringier, nor could he have known

that at some point in the future he would represent Warner in a

case where Bringier would be his co-defendant.    Similarly, at the

time of the hearing on the Kastigar motion, D’Amico no longer

represented Bringier and did not attend the hearing in a

representative capacity.   D’Amico’s role in the hearing was to

provide factual, non-privileged testimony regarding the waiver of

the Kastigar hearing.   In addition, the only case Bringier cites

in support of his claim that D’Amico had a conflict of interest,

United States v. Newell, 315 F.3d 510 (5th Cir. 2002), is clearly

distinguishable from the present case.   In Newell, a lawyer

simultaneously represented two defendants at trial and chose to

sacrifice one of his clients to save the other.    Id. at 518-19.

Conversely, in the present case, D’Amico never represented two

clients with conflicting interests at the same time.    In

addition, it is worth noting that the district court specifically

found D’Amico’s testimony credible.   The district court stated:

     Let me say at the outset, I have known Mr. D’Amico for
     many years. I not only know of him by reputation, but I
     have had him appear in this court on a number of

                                 5
     occasions. He has a representation [sic], not only with
     me, but I think among the criminal law community and the
     legal community in this area and in this state of being
     a premier criminal law attorney.

Thus, Bringier’s claim that D’Amico labored under a conflict of

interest has no merit.

     Moreover, even assuming arguendo that D’Amico did have a

conflict and that his testimony should have been stricken, the

district court still had ample evidence to find that Bringier had

waived his right to a Kastigar hearing.    First, Special Agent

Roger White also testified to the terms of the immunity

agreement.    Second, the letter memorializing the immunity

agreement was also introduced as evidence.    Accordingly, the

district court did not err in finding that Bringier waived his

right to a Kastigar hearing and thus did not err by refusing to

quash the indictment.

     Second, the district court did not err by denying Bringier’s

motion for acquittal based on insufficiency of the evidence.

With regard to the conspiracy to distribute narcotics conviction,

the government introduced sufficient evidence demonstrating

Bringier’s role in the conspiracy: various witnesses testified

and the government presented additional evidence corroborating

the testimony (e.g., phone records and drugs that were seized).

There was also ample evidence that Bringier engaged in money

laundering.    Specifically, there was evidence that Bringier used

a nominee to purchase a car and a house with the proceeds of an


                                  6
unlawful activity and that he made an effort to conceal that he

was the real purchaser.    Finally, the evidence showed that

Bringier was indeed structuring transactions to evade reporting

requirements.    There was evidence of Bringier’s pattern of bank

deposits, his wife’s knowledge of the reporting requirements, and

his knowledge that depositing over $10,000 would require

additional paperwork.    There is no doubt that a rational trier of

fact could have found that this evidence established Bringier’s

guilt beyond a reasonable doubt on all counts on which he was

convicted.    We therefore hold that the evidence was sufficient to

support Bringier’s conviction and that the district court did not

err by denying Bringier’s motion for acquittal.

     Third, the district court did not err by denying Bringier’s

motion for a mistrial on the basis that several witnesses made

references to the deaths of his wife and stepdaughter while

testifying.    There is no significant possibility that the

references to his family’s death (i.e., the statements that “an

accident happened in [Bringier’s] life,” “the funeral services of

[Bringier’s] wife,” and “right before [Bringier’s] family got

killed”) substantially impacted the jury’s verdict in light of

the entire record.    The evidence of Bringier’s guilt--as stated

above--was overwhelming, making the references Bringier complains

of harmless.    Thus, the district court did not abuse its

discretion by denying Bringier’s motion.

     Fourth, the district court did not err by denying Bringier’s

                                  7
motion for a mistrial on the basis that evidence related to a

shipment of over 200 kilograms of cocaine was introduced at

trial.   First, the government never promised Bringier that it

would not introduce this evidence against him.      Second, Bringier

failed to object timely to the introduction of the evidence.

Finally, as the district court noted, this evidence was not

prejudicial to Bringier since other witnesses testified that

“many, many kilos of cocaine . . . were directly distributed to

this defendant.”   Hence, the district court did not abuse its

discretion by denying Bringier’s motion.

     Fifth, we reject Bringier’s argument that the district court

erred by allowing the verdict to stand in light of the cumulative

errors that occurred during trial.     Having concluded that the

district court did not commit the errors alleged by Bringier, we

find that the cumulative error doctrine is simply inapplicable.

United States v. Villarreal, 324 F.3d 319, 328 (5th Cir. 2003).

Thus, the district court did not err by allowing the verdict to

stand.

     Finally, Bringier makes two arguments with regard to his

sentence.   First, Bringier argues that the district court erred

by imposing a two-level enhancement to his base offense level in

the narcotics and money-laundering convictions under the UNITED

STATES SENTENCING GUIDELINES §3B1.1 [hereinafter U.S.S.G. or the

Guidelines].   Specifically, Bringier argues that the evidence at

trial did not support a finding by the district court that he was

                                  8
a leader or organizer in the drug or money laundering schemes.

The evidence presented at trial shows that Bringier was a leading

player in a major drug conspiracy.   There was evidence at trial

that: (1) Bringier alone bought and sold approximately

$12,200,000 worth of cocaine; (2) Bringier used Jamar Rucker as a

courier to transport hundreds of thousands of dollars and

approximately 100 kilograms of cocaine; (3) Bringier hired cooks

to convert the cocaine he purchased into crack; and (4) Bringier

paid Ken Barrow to use his house to cook cocaine.   Based on this

evidence, the district court’s determination that Bringier was a

leader or a organizer of the drug conspiracy was not clearly

erroneous.3   The evidence presented at trial also shows that

Bringier was a leader or organizer in the money-laundering

schemes.   There was evidence that Bringier recruited Leonard

Foreman, paid him $5,000 to purchase the Worthey Road property,

and continued to exercise control over him by using him as an

intermediary with respect to the property.   The evidence also

showed that Bringier recruited Lawrence Jackson to buy a Corvette

in Jackson’s name for Bringier’s use and that Bringier directed

Jackson’s actions with regard to the purchase, a process that

took considerable effort because of Jackson’s poor credit rating.

Bringier not only used Foreman and Jackson, but he recruited


     3
          Both parties agree that we review the judge’s factual
findings for clear error. Accordingly, we assume without deciding
that clear error is the proper standard post-Booker.

                                 9
them, got them to participate in his money laundering schemes,

exercised control over them, and then continued to direct their

activities in connection with these schemes.     Therefore, we hold

that the district court’s determination that Bringier was a

leader or organizer in the money-laundering schemes was not

clearly erroneous.   Accordingly, the district court did not err

by imposing a two-level enhancement to Bringier’s base offense

level in the narcotics and money laundering convictions.

     Bringier next argues, for the first time on appeal, that his

sentence is illegal under Blakely v. Washington, 125 S. Ct. 21

(2004).    While Bringier’s case was pending before this court, the

Supreme Court decided Booker, 125 S. Ct. at 738.      In Booker, the

Supreme Court held that when a sentencing judge bound by

mandatory guidelines increased the sentencing range under the

Guidelines based on facts (other than the fact of a prior

conviction) not found by the jury or admitted by the defendant,

the sentence violated the defendant’s Sixth Amendment right to a

jury trial.    125 S. Ct. at 756.    In light of the Supreme Court’s

decision in Booker, we requested supplemental briefing from the

parties.   In his supplemental brief, Bringier concedes that his

objections to the PSR and his sentence were not expressed in

terms of Blakely or the Sixth Amendment.      Nevertheless, Bringier

argues that his objections below capture the essence of Blakely

and the Sixth Amendment, and thus that this court should consider

the issue preserved for review.      However, Bringier did not make a

                                    10
Blakely or a Sixth Amendment argument below, and we decline

Bringier’s suggestion that we consider his arguments below in the

“essence” of Blakely and the Sixth Amendment.    Accordingly, we

review Bringier’s sentence for plain error.     See Booker, 125 S.

Ct. at 767; United States v. Mares, No. 03-21035, 2005 WL 503715

(5th Cir. March 4, 2005).

     Under the plain error review standard we have “a limited

power to correct errors that were forfeited because [they were]

not timely raised in the district court.” United States v. Olano,

507 U.S. 725, 731 (1993).   “An appellate court may not correct an

error the defendant failed to raise in the district court unless

there is (1) error, (2) that is plain, and (3) that affects

substantial rights.”    Mares, 2005 WL 503715, at *8 (citing United

States v. Cotton, 535 U.S. 625, 631).   “If all three conditions

are met an appellate court may then exercise its discretion to

notice a forfeited error but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.” Id.

     With regard to plain-error review, Bringier argues that it

was plain error for the district court to enhance his sentence

using facts not found by a jury in violation of his Sixth

Amendment right.    The district court enhanced Bringier’s sentence

pursuant to its findings that Bringier was a leader or organizer

in the narcotics and money-laundering schemes, that Bringier had

distributed 120 kilograms of cocaine and two kilograms of crack

                                 11
cocaine (rather than five to fifteen kilograms of cocaine) in the

narcotics scheme, and that he had obstructed justice on all

counts.    Bringier contends that these errors affected his

substantial rights because the sentencing range for each count of

which he was convicted was higher than it otherwise would have

been absent those findings.

     The first prong of the plain error test is satisfied in this

case.    Under the mandatory guideline system in place at the time

of sentencing, Bringier’s sentence was enhanced based on findings

made by the judge that went beyond the facts admitted by the

defendant or found by the jury.    Bringier has therefore

established Booker error.     Because of Booker, the error is also

plain.    Mares, 2005 WL 503715, at *11 (citing Olano, 507 U.S. at

734 and Johnson v. United States, 520 U.S. 461, 468 (1997)).       The

third prong, however, is not satisfied in this case.    Bringier

has failed to show that the error affected his substantial

rights.    The standard for determining whether an error affects

substantial rights requires that the error affected the outcome

of the district court’s proceedings.     Mares, 2005 WL 503715, at

*8 (citing Olano, 507 U.S. at 734).    To meet this standard,

Bringier bears the burden of demonstrating a probability

sufficient to undermine confidence in the outcome.     Id. (citing

United States v. Dominguez Benitez, 124 S. Ct. 2333, 2340

(2004)).    Since the error here was the district court’s use of

extra verdict enhancements to reach a sentence under Guidelines

                                  12
that the judge believed to be mandatory, the question is whether

Bringier has demonstrated that the sentencing judge would have

reached a different result had it sentenced Bringier under an

advisory scheme rather than a mandatory one.   Mares, 2005 WL

503715, at *9.   Based on the record before us, we do not know

what the trial judge would have done had the Guidelines been

advisory.   Bringier has pointed to nothing in the record

indicating that the sentencing judge would have reached a

different conclusion under an advisory scheme.4   Bringier’s mere

     4
          Out of an excess of caution, but not out of any
obligation to do so, we have reviewed the sentencing hearing
transcript and found that the judge made some remarks regarding the
sentence he imposed. The sentencing judge specifically stated:

     I do not know that the testimony at the trial ever made
     it, nailed it down, but I suspect--and I think you
     probably suspect as well--that your activities led to the
     death of your wife and child. I just think it is, you
     know, a tragedy, you know, a waste of a young man that
     could have been many things.
     I do not know what to tell you other than this is the--
     even though it is a harsh sentence of 30 years, that is
     the lowest sentence that I could give you.           Your
     convictions on these counts could have carried a life
     sentence, but I do not see any reason to sentence you
     beyond the minimum.

     The Eleventh Circuit has recently decided a case in which it
found that the defendant met his burden under the third prong of
plain-error review. United States v. Shelton, No. 04-12602, 2005
WL 435120 (11th Cir. Feb. 25, 2005).      In Shelton, the court
considered the statements made by the sentencing judge, writing:

     The district court during sentencing expressed several
     times its view that the sentence required by the
     Guidelines was too severe, and noted that “unfortunately”
     Shelton’s criminal history category under the Guidelines
     was based on his past charges rather than on the actual
     nature of the crimes as reflected in the sentences

                                13
assertion that his sentence would have been lower absent the

extra verdict enhancements fails to suffice.   Under these

circumstances, Bringier has failed to carry his burden of

demonstrating that the result would likely have been different

had the judge been sentencing under the post-Booker advisory

regime rather than the pre-Booker mandatory regime.   Accordingly,

we find no plain error and affirm Bringier’s sentence.

     For the foregoing reasons, we AFFIRM Bringier’s conviction

and sentence.




     imposed in those cases. The district court not only
     sentenced Shelton to the lowest possible sentence it
     could under the Guidelines, 130 months, but also stated
     that sentence was “more than appropriate” in this case.
     All of these comments taken together convince us that
     there is a reasonable probability the district court
     would have imposed a lesser sentence in Shelton’s case if
     it had not felt bound by the Guidelines.

Shelton, 2005 WL 435120, at *6 (emphasis added).

     Unlike Shelton, the sentencing judge here did not lament over
the sentence he imposed, nor did he state that the sentence is
“more than appropriate” or “too severe.”        Instead, he merely
acknowledged the sentence was harsh. In addition, the fact that
the sentencing judge imposed the minimum sentence under the
Guideline range (360 months) alone is no indication that the judge
would have reached a different conclusion under an advisory scheme.
Mares, 2005 WL 503715, at *9. Accordingly, the sentencing judge’s
statements in this case are not sufficient to raise a reasonable
probability that he would have reached a different conclusion under
an advisory scheme. Therefore, Bringier would not have met his
burden under the third prong of plain-error review even had he
pointed to the sentencing judge’s remarks.


                                14
