United States v. Harris ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10228
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BARBARA BLYTHE HARRIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:97-CR-95-1-A
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December 1, 1998
Before DAVIS, DUHE’, and PARKER, Circuit Judges.
PER CURIAM:*
Barbara Blythe Harris was convicted by a jury for conspiracy
to commit bank robbery and for armed bank robbery and aiding and
abetting and has appealed.
Harris contends that the district court erred in refusing to
appoint an investigator at Government expense, under 18 U.S.C.
§ 3006A(e)(1), to help her develop evidence supporting her alibi
defense. In her motion, Harris argued only that the evidence she
wished to develop and the witnesses she wished to interview were
located in another city, that judicial economy would be served
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
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through the appointment of an investigator, that the unidentified
witnesses would provide alibi testimony, and that the services of
an investigator were necessary to disprove the Government’s case.
Harris did not demonstrate with specificity why appointment of an
investigator was necessary. See United States v. Gadison, 8 F.3d
186, 191 (5th Cir. 1993).
Harris contends that the district court erred in admitting
in evidence a note which the Government contended had been
written by Harris in her jail cell prior to the trial. Harris
contends on appeal that it was unfair to disclose to the jury
that she had been detained pending trial. She also argues that
the evidence was improperly admitted under Fed. R. Evid. 404(b)
because it tended to show an attempt by Harris to suborn perjury.
In United States v. Castillo, 77 F.3d 1480, 1489 (5th Cir. 1996),
we held that testimony that a defendant’s request for a witness
to fabricate a story was admissible to show the defendant’s
knowledge and membership in a conspiracy. Under Castillo, the
evidence was relevant to show Harris’s knowledge of the bank
robbery and membership in the conspiracy. It was up to the jury
to determine what weight should be given to the evidence.
Although the evidence was prejudicial, the prejudice was
mitigated because the district court instructed the jury that
Harris was presumed to be innocent and that it was not to
consider the fact that Harris was jailed pending trial in
determining her guilt. See United States v. Garza, 42 F.3d 251,
254 (5th Cir. 1994).
No. 98-10228
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Harris contends that, because she was acquitted of the
charge of using and carrying a firearm in connection with a crime
of violence, the district court erred by raising her offense
level by seven levels pursuant to U.S.S.G. § 2B3.1(b)(2)(A),
because a gun was discharged during the robbery. Under U.S.S.G.
§ 1B1.3(a)(1)(B), a defendant is responsible for “all reasonably
foreseeable acts and omissions of others in furtherance of [a]
jointly undertaken criminal activity.” This court has affirmed
imposition of the § 2B3.1(b)(2) enhancement in similar
circumstances. See United States v. Burton, 126 F.3d 666, 678-79
(5th Cir. 1997); see also § 1B1.3 comment. (n.2(B)(1)).
Harris contends that the district court erred at sentencing
in failing to adjust her offense level downward for acceptance of
responsibility. If a defendant “clearly demonstrates acceptance
of responsibility for h[er] offense,” the sentencing guidelines
instruct the district court to decrease the defendant’s offense
level by two and possibly three points. U.S.S.G. § 3E1.1(a) and
(b). The defendant bears the burden of proving that she is
entitled to the downward adjustment. United States v. Kinder,
946 F.2d 362, 367 (5th Cir. 1991). Because the issue is raised
for the first time on appeal, it is reviewed for plain error.
See United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.
1994) (en banc).
In her rambling statement at the sentencing hearing, Harris
continued to maintain her innocence and would admit only that she
had exercised poor judgment in associating with Mark Harris. It
is clear from Harris’s statement that she has not accepted
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responsibility and feels no remorse for the conduct for which she
was convicted. See § 3E1.3 comment. (n.1(a)). The adjustment
for acceptance of responsibility is not intended to apply to
defendants who deny the essential factual elements of guilt and
put the Government to its burden of proof at trial. See § 3E1.3
comment. (n.2). No error has been shown, plain or otherwise.
AFFIRMED.