                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                   March 7, 2005
                      _____________________
                                                         Charles R. Fulbruge III
                              No. 03-30918                       Clerk
                         _____________________

                    UNITED STATES OF AMERICA,

                         Plaintiff - Appellee,

                                versus

  JOHNNY DAVIS, also known as Fat, also known as 10th Ward Fat,
         also known as Project Fat, also known as Black;
               RICHARD PORTER, also known as Whop,

                     Defendants - Appellants.
_________________________________________________________________

          Appeals from the United States District Court
              for the Eastern District of Louisiana
                District Court Cause No. 00-CV-255
_________________________________________________________________

Before GARWOOD, JONES and PRADO, Circuit Judges.

PRADO, Circuit Judge.*

     This appeal arises from the convictions of Johnny Davis and

Richard Porter for several offenses.     The indictment charged

Davis and Porter with conspiring to distribute heroin and use

firearms in connection with drug trafficking activities.       In

addition, the indictment charged Porter with using a firearm to

commit murder during the course of a drug trafficking conspiracy

and charged Davis with four instances of using a firearm to


     *
      Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.

                                   1
commit murder in the course of a heroin trafficking conspiracy.

The indictment also charged Davis and Porter with other firearms

offenses.   The government sought the death penalty against Davis.

A jury convicted Porter of all counts brought against him.       The

jury convicted Davis of all counts brought against him except the

counts involving one of the murders and the possession of a

firearm on the date of that murder.    The jury rejected the death

penalty for Davis.    Davis and Porter challenge their convictions

in this appeal.

                  Motion to Suppress Wiretap Evidence

     Part of the evidence the government used to connect Porter

and Davis to the drug conspiracies and the shootings consisted of

telephone conversations obtained by wiretaps.    Prior to trial,

Davis and Porter moved to suppress the wiretap evidence.       Davis

and Porter argued that the wiretaps were unlawful under the plain

language of federal and then-applicable state law because the

applications for the wiretaps were signed by an assistant in the

office of the Louisiana Attorney General, rather than the

Attorney General himself.    The district court determined the

wiretaps were lawfully obtained because Louisiana law did not

expressly prohibit delegation of authority to sign wiretap

applications and admitted evidence obtained from the wiretaps

during trial.   On appeal, Davis and Porter challenge the district

court’s conclusion that the wiretaps were lawful.       Davis and



                                   2
Porter maintain that federal law allows wiretap authorization by

a state’s principal prosecuting attorney, but that it does not

permit an assistant attorney general to sign a wiretap

application.   This court reviews the district court’s conclusion

de novo.1

     Federal law governs the admissibility of state-authorized

wiretap evidence in federal criminal cases.2   The federal statute

for state wiretaps provides as follows:

     The principal prosecuting attorney of any State, or the
     principal prosecuting attorney of any political
     subdivision thereof, if such attorney is authorized by
     a statute of that State to make application to a State
     court judge of competent jurisdiction for an order
     authorizing or approving the interception of wire,
     oral, or electronic communications, may apply to such
     judge for . . . an order authorizing, or approving the
     interception of wire, oral, or electronic
     communications by investigative or law enforcement
     officers having responsibility for the investigation of
     the offense as to which the application is made. . . .3

This court previously determined the purpose of the provision

naming the “principal prosecuting attorney”:

     was not to designate a particular officer by name or
     title but to ensure the centralization of policy
     decisions of this type at the highest practicable
     levels . . . [and] “to provide for the centralization
     of policy relating to statewide law enforcement in the
     area of the use of electronic surveillance in the chief


     1
      See United States v. Edwards, 303 F.3d 606, 619 (5th Cir.
2002).
     2
      See United States v. Nelligan, 573 F.2d 251, 253 (5th Cir.
1978).
     3
      18 U.S.C. § 2516 (emphasis added).

                                 3
     prosecuting officer of the State.”4

The court explained that state law defines the state’s chief

prosecuting officer for the purpose of applying for a wiretap.5

     Louisiana law designates the criminal division of

Louisiana’s Department of Justice as responsible for “criminal

prosecution”6 and names the Attorney General as the executive

head and chief administrative officer of the department.7    Thus,

the Louisiana Attorney General serves as the state’s chief

prosecuting attorney.   The question remains, however, whether

Louisiana has authorized only the Attorney General to apply for

wiretaps.

     At the time the assistant attorney general signed the

application questioned here, section 1308 of Louisiana’s

electronic surveillance statute authorized the “attorney general,

with the approval of the district attorney in whose district the

interception of wire or oral communications shall take place,” to

apply for a wiretap.8   The Louisiana legislature amended the


     4
      United States v. Pacheco, 489 F.2d 554, 562 (5th Cir. 1974)
(quoting S. REP. NO. 90-1097, reprinted in 1968 U.S.C.C.A.N. 2112,
2187).
     5
      See Pacheco, 489 F.2d at 562.
     6
      LA. REV. STAT. ANN. § 36:704E (West Supp. 2004).
     7
      See id. § 36:701B.
     8
      1995 La. Sess. Law Serv. 1130 (West) (recording the
enactment of the Wire or Oral Communications—Authorization for
Interception—Evidence of Additional Offenses Act).

                                 4
statute the following year to expressly authorize the “attorney

general, or the deputy or any assistant attorney general acting

pursuant to the authorization of the attorney general” to apply

for a wiretap.9     Davis and Porter contend the amendment indicates

Louisiana’s intent to expand the persons who can apply for a

wiretap, and that at the time the challenged applications were

signed, Louisiana did not permit an assistant attorney general to

sign the applications.      The amendment, however, is more

appropriately viewed as a clarification of Louisiana law.

     Louisiana’s laws of statutory construction require courts to

interpret laws of the same subject matter in reference to each

other.10     Where two statutes deal with the same subject matter,

courts must harmonize the statutes to the extent possible.11

With respect to the duties and responsibilities of the Attorney

General, Louisiana law indicates that the state permitted an

assistant attorney general to apply for a wiretap before section

1308 was amended.      Specifically, state law provides that the

functions of the Attorney General shall be executed by the

“offices and officers” of the state Department of Justice.12

     9
      2002 La. Sess. Law Serv. 128 (West)(reporting the creation
of the Louisiana Anti-Terrorism Act).
     10
      See La. Municipal Ass’n, Parish of Jefferson v. Louisiana,
No. 04-CA-0227, 2005 WL 106494, at *13 (La. Jan. 9, 2005).
     11
          See La. Municipal Ass’n, No. 04-CA-0227, 2005 WL 106494,
at *3.
     12
          See LA. REV. STAT. ANN. § 36:701B (West Supp. 2004).

                                    5
Louisiana law designates the heads of each division within the

Department of Justice as officers of the department.13

     In this case, the assistant attorney general who signed the

challenged wiretap applications was the head of the criminal

division and was thus an “officer” of the Louisiana Department of

Justice within the meaning of Louisiana law.   Reading these

provisions together with section 1308 which defines a particular

Attorney General function—applying for a wiretap—indicates

Louisiana permitted the assistant attorney general who headed the

criminal division to apply for a wiretap before section 1308 was

amended.   Because no question exists about whether the assistant

attorney general who signed the challenged applications here

acted under the authority of the Attorney General, this court

concludes that the wiretaps were lawful even though the assistant

attorney general in charge of the criminal division signed the

applications.

     Davis and Porter also complain that the wiretaps were

unlawful because Louisiana law does not permit private

contractors to monitor wiretapped communications.   After the

wiretaps were approved, the Drug Enforcement Agency hired private

contractors who worked for a company called Lafayette Group to

monitor the wiretaps.   The Lafayette Group is mostly comprised of


     13
      See id. § 36:701E(1) (naming officers of the department as
the attorney general, the chief deputy attorney general, and the
directors of the divisions of the department).

                                 6
retired law enforcement officers.      The contractors monitored and

transcribed intercepted conversations under the supervision of

Louisiana law enforcement officers.     Because the Lafayette Group

monitored the wiretaps, Davis and Porter maintain that the

wiretaps were unlawful and that the district court erred by

admitting the evidence obtained from the wiretaps.

     Federal law governs the admissibility of state-authorized

wiretap evidence in federal court.14     State-authorized wiretaps

must comply with federal and state law.15     Here, no question

exists about whether the wiretaps complied with federal law

because the federal wiretap statute expressly authorizes the use

of a government contractor to intercept a wiretap.16     Unlike the

federal statute, the Louisiana wiretap statute does not

specifically authorize government contractors to intercept

wiretaps.     Instead, the Louisiana electronic surveillance statute

provides for “an order authorizing or approving the interception

of wire or oral communications by an investigative or law

enforcement officer having responsibility for the investigation




     14
          See Nelligan, 573 F.2d at 253-54.
     15
          See 18 U.S.C. § 2516(2) (requiring compliance with state
law).
     16
      See 18 U.S.C. § 2518(5)(stating that a government
contractor acting under the supervision of an investigative or
law enforcement officer may intercept wiretaps).

                                   7
of the offense as to which the application is made.”17     The

statute defines “investigative or law enforcement officer,” in

part, as a “commissioned state police officer.”18     Davis and

Porter rely on this definition to support their argument that

Louisiana law permits only commissioned state police officers to

monitor wiretaps.

     Two Louisiana courts of appeal have affirmed convictions in

which wiretap evidence gathered by the Lafayette Group was

used.19     Those decisions indicate that Louisiana law permits law

enforcement officers to use private contractors to monitor state

wiretaps.     In one of those decisions, a Louisiana court of

appeals rejected the argument that Davis and Porter advance

here.20     Even if using the Lafayette Group was improper under

Louisiana law, using private contractors to monitor wiretaps

would constitute a mere technical violation of the Louisiana

electronic surveillance statute and does not require the




     17
      LA. REV. STAT. ANN. § 15:1308A (West Supp. 2004) (emphasis
added).
     18
          Id. § 15:1302(12).
     19
      See State v. Esteen, 821 So. 2d 60, 72, 79 (La. App. 5
Cir. 2002) (affirming convictions without addressing the
propriety of the use of the Lafayette Group); State v. Sterling,
825 So.2d 1279, 1290-94 (La. App. 4 Cir. 2002) (expressly
upholding the use of the Lafayette Group after extensive
analysis).
     20
          See Sterling, 825 So.2d at 1290-94.

                                   8
suppression of evidence under Louisiana law.21    This court

concludes that Louisiana law permits law enforcement to use a

private contractor, working under the supervision of a law

enforcement officer, to monitor a wiretap.     Thus, the wiretaps

were lawful.

     Because the wiretaps were lawful, the evidence obtained by

the wiretaps was admissible and the district court did not err by

denying the motion to suppress.   Having made this determination,

the court need not address Davis’s and Porter’s other arguments

about the admissibility of the wiretap evidence as those

arguments are based on unlawful wiretaps.

                        Motion for Acquittal

     The remaining arguments in this appeal apply only to Porter.

Porter first contends that the district court erred by denying

his motion for acquittal on counts 10 and 13.     Count 10 alleged

that Porter used a firearm to shoot and kill Leonard Morgan

during the course of the heroin distribution conspiracy charged

in count 1.    Count 13 alleged that Porter used a firearm to shoot

Shantell Blouin during the course of two crimes: the conspiracy

to distribute heroin charged in count 1 and the distribution of

crack cocaine charged in count 12.    On appeal, Porter contends


     21
      See   State v. Neisler, 666 So.2d 1064, 1068 (La. 1996)
(treating   police officers’ failure to present their informant to
the judge   when obtaining the wiretap order, as required by the
Louisiana   electronic surveillance statute, as a technical
violation   that did not require suppression).

                                  9
that there was insufficient evidence for the jury to convict him

of the firearms counts and that the district court should have

granted his motion for acquittal.

     “A motion for a judgment of acquittal challenges the

sufficiency of the evidence to convict.”22     “The evidence is

sufficient if, drawing all reasonable inferences and credibility

determinations in the light most favorable to the prosecution, a

rational trier of fact could have found that the evidence

established the essential elements of the crime beyond a

reasonable doubt.”23     This court reviews the denial of a motion

for a judgment of acquittal de novo.24

     Although Porter complains about insufficient evidence, the

government presented evidence that Porter ordered Morgan’s murder

from prison.     Viewing the evidence in the light most favorable to

the prosecution, the evidence showed that Porter instructed Davis

to kill Morgan because Morgan was invading Porter’s heroin-

trafficking territory.     In particular, Bruce Baker testified that

while he and Porter were incarcerated, Porter told him that he

wanted Timmy Carruth to kill Morgan, but that Carruth was taking

too long to do it, and therefore, he gave Davis the go ahead to


     22
          United States v. Medina, 161 F.3d 867, 872 (5th Cir.
1998).
     23
          United States v. Daniels, 281 F.3d 168, 178 (5th Cir.
2002).
     24
          See Medina, 161 F.3d at 872.

                                   10
kill Morgan.       Although Porter presented evidence that Carruth

killed Morgan, that evidence presented a different theory about

Morgan’s murder–that Carruth killed Morgan because of his own

conflict with Morgan.       Choosing between these theories required

the jury to weigh the credibility of the witnesses.       By

convicting Davis and Porter of Morgan’s murder, the jury rejected

Porter’s theory and accepted the government’s theory.       Accepting

all credibility choices in favor of the jury's verdict,25

sufficient evidence supports the verdict on count 10.

       Porter also complains that insufficient evidence exists that

he used a firearm in furtherance of cocaine distribution or

heroin trafficking to support count 13.       Like his argument about

count 10, Porter’s argument rests on the jury’s credibility

determinations.       The evidence presented two different theories

about why Porter shot Blouin: the government contended that

Porter wanted to prevent Blouin from revealing that Porter used

cocaine, thereby revealing Porter’s vulnerability to those who

wanted to move in on his heroin-distribution territory; Porter

contended that he shot Blouin to prevent her from revealing to

his child’s mother that he was trading cocaine with Blouin for

sex.    Although the evidence in support of either theory was not

overwhelming, the jury chose the government’s theory and rejected

Porter’s theory.       Accepting all credibility choices in favor of

       25
            See United States v. Johnston, 127 F.3d 380, 401 (5th Cir.
1997).

                                     11
the jury's verdict,26 sufficient evidence supports the verdict on

court 13.

                            Motion to Sever

     Porter next contends that the district court erred by

failing to sever counts 12 through 15 of the indictment.        Counts

12 through 14 charged Porter with drug and weapons offenses in

connection with Blouin’s shooting.        Count 15 charged Porter with

being a felon in possession of a weapon–the gun Porter possessed

when he was arrested for shooting Blouin.        Before trial, Porter

moved to sever these counts.     Porter argued that trying him on

these counts simultaneously with count 10, which involved the

murder of Leonard Morgan, would prejudice him.        Porter also

argued that trying him on count 15 along with counts 1 through 3,

which charged him with participating in a drug conspiracy, would

prejudice him.     The district court denied the motion because the

disputed counts were based on allegations of the same or similar

character as the alleged drug conspiracy and fell within the time

frame of the alleged conspiracy.        On appeal, Porter maintains

that he was prejudiced by the inflammatory evidence of the

shooting of Blouin and the evidence that he was a gun-carrying

felon.

     In reviewing the denial of a motion to sever, the court must

first determine whether the initial joinder of the counts was


     26
          See Johnston, 127 F.3d at 401.

                                   12
proper under Rule 8(a) of the Federal Rules of Criminal

Procedure.27     Rule 8(a) provides as follows:

     Two or more offenses may be charged in the same
     indictment or information in a separate count for each
     offense if the offenses charged, whether felonies or
     misdemeanors or both, are of the same or similar
     character or are based on the same act or transaction
     or on two or more acts or transactions connected
     together or constituting parts of a common scheme or
     plan.28

Rule 14 further provides that if it appears that a defendant is

prejudiced by a joinder of offenses, the court may order a

separate trial of the counts.29         Thus, this court reviews the

denial of a motion to sever for an abuse of discretion.30         To

demonstrate an abuse of discretion, Porter must demonstrate a

“specific and compelling prejudice that resulted in an unfair

trial and such prejudice must be of a type against which the

trial court was unable to afford protection.”31

     Here, the indictment alleges that Davis and Porter conspired

to distribute heroin and conspired to use and carry firearms to

further the heroin conspiracy, beginning July 28, 1998 and

continuing until October 12, 2001.         Counts 12, 13, and 14 apply

     27
          See United States v. Holloway, 1 F.3d 307, 310 (5th Cir.
1993).
     28
          FED. R. CRIM. P. 8.
     29
          See FED. R. CRIM. P. 14(a).
     30
          See Holloway, 1 F.3d at 310.
     31
      See United States v. Pena-Rodriguez, 110 F.3d 1120, 1128
(5th Cir. 1997).

                                    13
only to Porter and allege separate drug possession and firearm

counts that fall within the time frame of the heroin conspiracy.

Because these counts are alleged as part of a common scheme or

plan, the face of the indictment indicates joinder was proper.32

     This court must also consider the “efficacy of the limiting

measures taken by the trial court [and] the strength of the

evidence of the defendant’s guilt”33 to determine if Porter was

prejudiced.      Here, Blouin’s testimony that Porter shot her twelve

times without provocation, Dr. Robertson’s description of

Blouin’s injuries, and evidence that Porter had a gun when he was

arrested were clearly prejudicial.       Despite this prejudicial

evidence, abundant evidence exists that Porter conspired to

distribute heroin and conspired to use and carry firearms to

further the heroin conspiracy.      In addition, sufficient evidence

exists that Porter ordered the murder of Leonard Morgan.       The

strength of evidence supporting the jury’s verdict of guilt on

counts 1 through 3 (drug conspiracy) and count 10 (the Morgan

murder) do not indicate that the district court abused its

discretion by not severing counts 12 through 15.       At most, Porter

has shown a quantitative disparity in evidence and the

possibility of a spillover effect of Blouin’s and Dr. Robertson’s

testimony, neither of which, without more, warrants a

     32
          See FED. R. CRIM. P. 8.
     33
          United States v. McCarter, 316 F.3d 536, 538-39 (5th Cir.
2002).

                                    14
severance.34    Furthermore, the district court protected Porter

against the     spillover effect by instructing the jury to “give

separate consideration to the evidence as to . . . each of the

crimes charged.”     The district court did not abuse its

discretion.

                            Double Jeopardy

     Porter next complains that count 10 (the Morgan murder) and

count 13 (the Blouin shooting) charging the discharge of a

firearm during and in relation to the commission of a drug

trafficking crime are not based on separate drug trafficking

offenses and thus Porter argues that his sentences for those

counts violate the double jeopardy clause.     In this circuit, each

firearms offense charged under 18 U.S.C. § 924(c) must be

sufficiently linked to a separate drug trafficking offense to

avoid violating double jeopardy principles.35     “The necessary

linkage between a firearms charge and a drug trafficking offense

is best accomplished by clearly identifying in the indictment the

drug offense supporting each firearms count.”36     This court



     34
      See United States v. Mitchell, 31 F.3d 271, 276 (5th Cir.
1994) (explaining that showing a quantitative disparity in the
evidence and the mere presence of a spillover effect does not
warrant severance).
     35
          See United States v. Baptiste, 309 F.3d 274, 279 (5th Cir.
2002).
     36
          United States v. Privette, 947 F.2d 1259, 1263 (5th Cir.
1991).

                                   15
reviews double jeopardy claims de novo.37

     Here, the indictment alleged in count 10 that Porter “did

knowingly carry and use a firearm . . . during and in relation to

the commission of a . . . conspiracy to possess with intent to

distribute heroin.”     The indictment alleged in count 13 that

Porter “did knowingly use and carry . . . a firearm . . . during

and in relation to the commission of . . . distribution of

cocaine base (‘crack’) and conspiracy to possess with the intent

to distribute heroin.”     The jury’s verdict and the court’s

instructions indicate that the jury found that count 10 (the

Morgan shooting) related to the heroin conspiracy charged in

count 1, and that count 13 (the Blouin shooting) related to the

heroin conspiracy charged in counts 1 and to the cocaine

distribution charged in count 12.       As such, count 10 and 13 are

supported by more than one predicate drug trafficking offense.

Thus, double jeopardy principles were not violated.

                               Sentencing

     As his last argument, Porter maintains that the district

court erred by sentencing him as a career criminal.      Porter

complains that the district court determined that he was a career

criminal based on two armed robbery convictions.      Porter

maintains that robbery convictions were part of a common scheme



     37
          See United States v. Gonzales, 40 F.3d 735, 737 (5th Cir.
1994).

                                   16
or plan, and that although not formally consolidated for trial,

they were functionally consolidated.     Thus, Porter argues, the

relatedness of these offenses precluded the career criminal

finding.     Although Porter appears to understand that any error

will not decrease his sentence,38 he complains that the career-

criminal designation will negatively impact him while

incarcerated.

     Section 4B1.1 of the United States Sentencing Guidelines

classifies a defendant as a career offender if the offense is a

crime of violence or controlled substance offense and the

defendant has at least two previous felony convictions for crimes

of violence or controlled substance offenses.39     The guidelines

instruct a sentencing judge to count as a single prior felony

conviction all those that are “related” to one another.40     The

court reviews the question of relatedness de novo,41 deferring to

the district court’s determination about whether the defendant’s


     38
      Porter was sentenced under the sentencing guidelines to
life for count 1; thus, designation as career criminal does not
increase his sentence.
     39
          See U.S.S.G. § 4B1.1.
     40
          U.S.S.G. § 4B1.2(c) & comment 3; § 4A1.2(a)(2).
     41
      See United States v. Huskey, 137 F.3d 283, 285 (5th Cir.
1998). Recently, the United States Supreme Court determined that
the courts of appeals review sentencing decisions for
unreasonableness. See United States v. Booker, 125 S. Ct. 738,
765-67 (2005). That determination does not appear to disturb
this circuit’s standard of review for determining whether two
prior convictions are related.

                                   17
prior convictions were functionally consolidated for

sentencing.42

     The commentary to the sentencing guidelines instructs that

“prior sentences are considered related if they resulted from

offenses that (1) occurred on the same occasion, (2) were part of

a single common scheme or plan, or (3) were consolidated for

trial or sentencing.”43     Porter contends that his robberies were

part of a single common scheme or plan because: the robberies

occurred a few blocks apart on the same morning, he targeted

pedestrians in both cases, he held up both victims at gunpoint,

and he was motivated by greed on both occasions.     Crimes that are

merely similar are not necessarily related crimes.44     The words

“scheme” and “plan” imply intent and suggest that the prior

offenses were jointly planned, “or at least that it have been

evident that the commission of one would entail the commission of

the other as well.”45     “[A] common criminal motive or similar

modus operandi will not cause separate crimes to be related, nor

will crimes be related merely because they are committed to

achieve a common goal, such as the support of a drug habit or




     42
          See Buford v. United States, 532 U.S. 59, 64 (2001).
     43
          U.S.S.G. § 4A1.2, comment 3.
     44
          See United States v. Robinson, 187 F.3d 516, 519 (5th Cir.
1999).
     45
          Robinson, 187 F.3d at 520.

                                   18
lifestyle.”46

     Here, Porter robbed his first victim at 6:50 a.m. on April

20, 1990; he robbed the second victim on 10:25 a.m. on the same

day, nearly two blocks away.     Porter was arrested for the 6:50

a.m. robbery after being identified by the victim.       While he was

in jail on that charge, the victim of the 10:25 a.m. robbery

identified Porter in a photographic lineup.       The Orleans Parish

District Attorney’s Office charged Porter with armed robbery in

two separate cases.     Porter pleaded guilty to both offenses

before the same judge on December 10, 1990, and received two

concurrent sentences of ten years imprisonment.       Despite the

similarities of the offenses, nothing indicates that Porter

engaged in any planning that indicated that the first robbery

would entail the second robbery.        Instead of joint planning, the

offenses indicate that Porter robbed whomever he thought was an

easy target, and that each offense was motivated by the desire

for someone else’s money.     Nothing shows that the offenses were

part of a single common scheme or plan.       Accordingly, the

robberies were not related.     Having made this determination, the

court need not consider Porter’s argument that the offenses were

functionally consolidated for trial.        The district court did not

err by sentencing Porter as a career criminal.

                               Conclusion


     46
          Id. at 519 (internal citations omitted).

                                   19
     Having considered the arguments on appeal and determined

that the district court did not err, the court AFFIRMS the

judgments convicting and sentencing Davis and Porter.

AFFIRMED.




                               20
