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Case: 23-60040 Document: 84-1 Page: 1 Date Filed: 02/21/2024


United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
February 21, 2024
No. 23-60040
Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Mike Austin Anderson,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:21-CR-62-1
______________________________
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Stephen A. Higginson,

This is an appeal of convictions related to the shooting of Julian McMillan by Mike Anderson following an argument in Conehatta, Missis- sippi, part of the Choctaw Indian Reservation. Anderson was convicted after a jury trial of assault with a dangerous weapon and assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113 and 1153, as well as using a gun during and in relation to a crime of violence, in violation of 18 U.S.C. § 924 (c)(1)(A)(iii). Defendant-Appellant Mike Anderson contends that (1) the district court erred in finding that the prosecution produced sufficient evidence at trial for the jury to return guilty verdicts, despite the district Case: 23-60040 Document: 84-1 Page: 2 Date Filed: 02/21/2024 No. 23-60040 court’s self-defense instruction, and (2) the district court inappropriately de- nied Anderson’s pretrial motion to recuse the lead prosecutor, Assistant United States Attorney (“AUSA”) Kevin Payne, and the entire United States Attorney’s Office (“USAO”) for the Southern District of Mississippi, due to Payne’s representation of Anderson and his father on different occa- sions while he was employed as a public defender in Choctaw Tribal Court. Because we find no error in the court’s rulings on Appellant’s sufficiency of the evidence challenge or on his recusal motion, we AFFIRM his convic- tions and sentence. I. In June 2021, Appellant was charged in a six-count indictment with: assault with a firearm with intent to commit murder on the Choctaw Indian Reservation, 18 U.S.C. §§ 1153 and 113(a)(1) (Count 1); assault with a firearm with intent to do bodily injury on the Choctaw Indian Reservation, §§ 1153 and 113(a)(3) (Counts 2 and 5); assault resulting in serious bodily injury on the Choctaw Indian Reservation, §§ 1153 and 113(a)(6) (Count 3); using a firearm during and in furtherance of a crime of violence, § 924(c)(1)(A)(iii) (Count 4); and brandishing a firearm in relation to a crime of violence, § 924(c)(1)(A)(ii) (Count 6). After a three-day trial, a jury convicted Appel- lant of Counts 2, 3, and 4 on October 5, 2022. On January 27, 2023, the dis- trict court entered a judgment sentencing Appellant to 144 months in prison—24 months each for Counts 2 and 3, to run concurrently with each other, and 120 months for Count 4, to run consecutively to the prison term for Counts 2 and 3. The court also sentenced Appellant to 60 months super- vised release and a $500 fine. It is undisputed that, over the course of the evening of May 28, 2021 and the early hours of May 29, 2021, the following individuals were present: Appellant, Mike Anderson; the victim, his friend Julian McMillan; 2 Case: 23-60040 Document: 84-1 Page: 3 Date Filed: 02/21/2024 No. 23-60040 McMillan’s girlfriend, Susanna Shoemake; Susanna’s sister, Tonya Ander- son; and Tonya’s daughter, Caitea Anderson. Appellant is related to Tonya and Caitea. Julian McMillan and Caitea Anderson testified at trial. The shooting occurred in the very early hours of May 29, 2021, after a long evening of drinking. The following facts are undisputed: On the even- ing of May 28, 2021, Shoemake and McMillan were socializing and drinking at Tonya Anderson’s house. Appellant contacted McMillan to ask him to bring cigarettes to Appellant’s home. Shoemake and McMillan drove to Ap- pellant’s home, where the three socialized and drank. When they realized they were running low on alcohol, Appellant and McMillan decided to drive back to Tonya Anderson’s house to retrieve beer and whiskey that Shoemake and McMillan had left there earlier. Testimony differed as to where the men stopped on their way to To- nya Anderson’s house—McMillan testified that he went to Shoemake’s mother’s house to use the bathroom, while Appellant told a la

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