United States v. Torenda Whitmore , 386 F. App'x 464 ( 2010 )

Case: 09-60400 Document: 00511174536 Page: 1 Date Filed: 07/15/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2010
No. 09-60400 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
TORENDA WHITMORE, also known as Torenda Brooks, also known as Tory;
EDDIE JAMES PUGH, IV, also known as Stretch; BARRON LECOUR
BORDEN, also known as Bam,
Defendants - Appellants
Appeals from the United States District Court
for the Southern District of Mississippi
No. 1:08-CR-130-3
Before JONES, Chief Judge, and KING and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:*
Appellants Torenda Whitmore, Eddie Pugh, and Barron Borden were
charged and convicted under a seven count indictment for the kidnapping and
murder of Byron McCoy and the kidnapping and serious injury of Rahaman
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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Mogilles.1 They now appeal, raising numerous challenges to their convictions
and sentences. We AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
Viewed in the light most favorable to the verdict, the record establishes
the following facts. On October 8, 2008, Mogilles and McCoy went to Pugh’s New
Orleans home to purchase marijuana. Pugh shared the home with his mother
and his girlfriend, Whitmore. Mogilles and McCoy had come by earlier in the
day, but Pugh turned them away after telling Mogilles that he feared McCoy was
a police officer. Upon returning to Pugh’s house to again attempt to purchase
drugs, Mogilles entered with Pugh while McCoy stayed in Mogilles’s SUV out
front.
Mogilles walked onto the back patio to smoke when he saw Borden arrive
carrying a bag with what appeared to be a baseball bat hanging out of it.
Moments later, Mogilles was struck in the head and knocked unconscious.
Whitmore later told police she observed Mogilles lying on the patio pleading
after he was assaulted. As Mogilles lay stunned, Pugh motioned for McCoy to
come inside. McCoy entered unaware of the assault on Mogilles, and Pugh
punched him and pulled his pants down to incapacitate him. McCoy was then
subdued by one or more blows to the head.
Pugh and Borden bound both McCoy and Mogilles with telephone wire and
loaded them into Mogilles’s SUV. Mogilles testified that Whitmore saw him as
he was dragged to the car, and she stated in response, “That’s f’d up.” Mogilles
and McCoy, both still bound, were placed in the middle seat, with McCoy seated
behind the driver. Borden sat in the rear with a .40 caliber SigArms pistol
pointed at McCoy’s head. Upon leaving, Whitmore followed the SUV in a silver
Scion that was parked in front of the house. Pugh drove the SUV to Mississippi
1
The specific charges against each defendant-appellant set forth below.
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while Borden kept the pistol pointed at McCoy’s head. After crossing the state
border, Whitmore needed fuel and signaled to the SUV to pull over to stop for
gas. Both cars exited the interstate, Whitmore filled her vehicle, and they both
continued to the murder scene.
After entering Jackson County, Mississippi, Pugh exited the interstate and
traveled a few miles north to Larue Street. He then pulled the SUV off to the
side of the road. The Scion stopped behind the SUV. At this time, Borden shot
McCoy in the head. Mogilles broke free from his restraints. After a scuffle,
Mogilles ran into a nearby briar patch. Pugh fired after him, wounding him
twice.
After escaping, Mogilles observed Whitmore circling the Scion around the
block and “looking around.” After avoiding Whitmore, Mogilles flagged down a
school bus for help. Simultaneously, Elliot Jones, a high school student who was
driving by the area, contacted police to report observing three black males near
an SUV on Larue Road, one of whom was running into the woods while another
shot at him. Jones also reported seeing a silver Scion behind the SUV.
After Mogilles escaped, Pugh and Borden drove the SUV down a dirt road
and abandoned it. Pugh poured gasoline inside the vehicle and set it on fire with
McCoy’s body still inside, burning himself in the process. He and Borden then
fled through the woods. As they ran, they discarded their phones, keys, and the
murder weapon. They were apprehended under a nearby bridge.
Whitmore was stopped soon thereafter when Jones returned to the scene
and alerted police to her vehicle. Jones confirmed it was the vehicle he had seen
near the SUV. Jackson County Sheriff’s Deputy Tyrone Nelson approached the
car and questioned Whitmore. According to Nelson, Whitmore stated that she
was merely lost and kept looking over at the SUV. Based on the reports
regarding the Scion, Whitmore was detained for questioning at the police
station. Once there, Whitmore was interviewed by FBI Special Agent Jerome
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Lorrain. Whitmore denied knowing Pugh, Borden, or the victims. Further, she
claimed she was on her way to Montgomery, Alabama, and had gotten lost.
Whitmore later recanted and admitted to having been present at Pugh’s house
when Mogilles came by to purchase drugs. Further, she admitted seeing
Mogilles disabled on the back patio pleading and that she knew a confrontation
had occurred with McCoy. Whitmore then admitted she followed Pugh and
Borden to the murder scene.
All three defendants were charged with conspiracy to kidnap, kidnapping
that resulted in the murder of McCoy, and kidnapping that resulted in the injury
of Mogilles. Pugh was charged with being a felon in possession of a firearm and
using a firearm during a crime of violence. Borden was also charged with being
a felon in possession of a firearm and using a firearm during a crime of violence
The government presented Mogilles’s testimony, Jones’s testimony, the
police officers’ investigation of the crime scene, Pugh’s post-arrest statements,
Whitmore’s post-arrest statements, the blood found at Pugh’s home, Borden’s
burn wounds, and other evidence. Neither Pugh nor Whitmore presented any
evidence. Borden called three witnesses. The jury convicted Pugh and Borden
on all counts. The jury convicted Whitmore on both kidnapping charges on a
theory of aiding and abetting, but acquitted on the conspiracy charge.
Whitmore was sentenced to life in prison to be followed by five years of
supervised release. Pugh was given a life sentence plus five additional years
plus three years of supervised release. Borden was also given a life sentence
plus five additional years plus five years of supervised release. Appellants
timely appealed.
II. DISCUSSION
Appellants appeal their convictions and sentences on a variety of grounds.
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A. Denial of Appellants’ Motion to Sever
Appellants claim the district court erred in denying their motion to sever.
The court reviews the denial of severance for abuse of discretion. United States
v. Mitchell, 484 F.3d 762, 775 (5th Cir. 2007). To demonstrate an abuse of
discretion in denying the motion for severance, the defendant must show 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.
Id. Appellants moved to sever based on their inability to challenge
incriminating statements made by their co-defendants. Yet, at trial, the
government did not use any of Appellants’ words, testimony, or statements
against the other appellants. Instead, the government only introduced
statements by Whitmore that inculpated Whitmore, statements by Pugh that
inculpated Pugh, and the government did not enter any statements made by
Borden. Neither Borden nor Pugh 2 identify any of their respective
co-defendants’ statements that incriminate them in the crime.3 Further, the
government offered substantial additional evidence of guilt as to each defendant,
including Mogilles’s and Jones’s eyewitness testimony as well as evidence found
in Pugh’s home and the SUV. Finally, the district court properly included
limiting instructions from the Fifth Circuit Pattern Jury Instructions so as to
prevent any undue prejudice. As such, the district court did not abuse its
discretion when it denied Appellants’ motion to sever.
B. Denial of Appellants’ Motion for Change of Venue
Appellants next assert that the district court erred in denying their motion
for a change of venue due to media coverage of the crime. Specifically,
2
Whitmore offers no argument on this claim of error. Instead, she advances this claim
by way of incorporation under Federal Rule of Appellate Procedure 28(i).
3
The allegedly incriminatory information Pugh cites in his briefing was neither
directly incriminatory nor exclusively presented through Whitmore’s statements.
5
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Appellants argue that a single news story carried on the front-page of one Gulf
Coast newspaper and dissemination of the story via “electronic media” was
sufficient to warrant change of venue for their federal trial. We review a district
court’s denial of a motion for change of venue for abuse of discretion. United
States v. Parker, 877 F.2d 327, 330 (5th Cir. 1989). “[T]he district court must
grant a change of venue when it is satisfied that there exists in the district
where the prosecution is pending so great a prejudice against the defendant
[that he] cannot obtain a fair and impartial trial.” Id. (second alteration in
original) (internal quotation marks and citations omitted). However, “a change
of venue should not be granted on the mere showing of widespread publicity.”
Id. Appellants’ have failed to demonstrate how the limited media coverage cited
in Borden’s briefing “was in excess of the sensationalism inherent in the crime
or that pervasive community prejudice resulted from the publicity.” Id. at 331.
Accordingly, the district court did not abuse its discretion in denying the motion
for change of venue.
C. Denial of Appellants’ Motions to Suppress
Appellants claim the district court erroneously denied their individual
motions to suppress each of their post-arrest statements. Pugh also argues the
district court erred in denying his additional motion to suppress the evidence
gained from the search of his residence and the medical examination of his body
conducted after his arrest. In reviewing a suppression ruling, we examine
factual findings for clear error and legal conclusions de novo. United States v.
Cavazos, 288 F.3d 706, 709 (5th Cir. 2002). We “view the evidence in the light
most favorable to the party that prevailed in the district court, considering the
evidence offered at the suppression hearing as well as the evidence admitted at
trial.” United States v. Gonzales, 121 F.3d 928, 938 (5th Cir. 1997). The district
court’s denial of the motion to suppress is subject to a harmless error analysis.
See United States v. Garcia-Ruiz, 546 F.3d 716, 718 (5th Cir. 2008).
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1. The Admission of Appellants’ Post-Arrest Statements
a. Whitmore’s Statements
Whitmore challenges the trial court’s refusal to suppress her post-arrest
statements, arguing the police lacked probable cause to arrest her when she was
detained near the scene of the murder. “Probable cause exists when the totality
of facts and circumstances within a police officer’s knowledge at the moment of
arrest are sufficient for a reasonable person to conclude that the suspect had
committed or was committing an offense.” United States v. Nunez-Sanchez,
478 F.3d 663, 666 (5th Cir. 2007) (internal quotation marks omitted). The
arresting officers had sufficient information under the totality of the
circumstances to create probable cause for her arrest. Police had numerous
reports that a silver Scion like the one Whitmore was driving had been following
the burnt SUV, and Whitmore was found near the scene of the crime. She also
acted suspiciously when stopped and questioned by officers.4 Consequently,
Whitmore’s arrest was not unlawful, and the district court did not err in denying
her motion to suppress.
b. Pugh’s Statements
Pugh argues that the district court erroneously failed to suppress his post-
arrest statements for four reasons: (1) the federal officers violated his Sixth
Amendment rights by questioning him after he asked for a lawyer; (2) the
federal officers did not present him in a timely fashion to a judicial officer; (3)
the federal officers used appeals to religion to secure a confession; and (4) the
totality of the circumstances justified suppression.
4
Whitmore makes much of the fact that one of the on-scene officers testified that he
did not believe the police had probable cause to arrest her. Nonetheless, we have previously
held that “the mere subjective sentiment of the arresting officer or person” is not dispositive
in determining the legality of an arrest. United States v. Sealed Juvenile 1, 255 F.3d 213, 219
(5th Cir. 2001).
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First, Pugh claims that his oblique statements to officers suggesting he
desired counsel were sufficient to trigger his Sixth Amendment rights.
Specifically, Pugh argues that he invoked his right to counsel by asking “how he
could go about getting a court appointed attorney . . . .” Pugh’s argument is
unavailing. Under Miranda, a “suspect must unambiguously request counsel.”
Davis v. United States, 512 U.S. 452, 459 (1994); see also Berghuis v. Thompkins,
No. 08-1470, 2010 U.S. LEXIS 4379, at *19-20 (June 1, 2010) (reaffirming that
a suspect must “unambiguously” invoke the Miranda right to counsel and
extending that principle to the Miranda right to remain silent). Consequently,
the district court did not err in refusing to suppress Pugh’s statements as he did
not unequivocally invoke his Sixth Amendment right to counsel.
Next, Pugh claims the district court was obliged to suppress his
statements because he was not timely presented before a judicial officer. In
total, Pugh was held in custody for six days before appearing before a federal
magistrate judge. The Supreme Court has held that post-arrest statements
obtained outside the six-hour safe harbor created by 18 U.S.C. § 3501(c) should
be suppressed where the delay was unreasonable or unnecessary. Corley v.
United States, 129 S. Ct. 1558, 1571 (2009). However, this obligation does not
arise until a defendant is subject to a federal arrest. “Until a person is arrested
or detained for a federal crime, there is no duty, obligation, or reason to bring
him before a judicial officer ‘empowered to commit persons charged with offenses
against the laws of the United States . . . .’” United States v. Alvarez-Sanchez,
511 U.S. 350, 358 (1994). Pugh was arrested by state officers for a state offense.
Further, Pugh has not offered any evidence to suggest state officials acted in
collusion with federal officials with an aim of depriving him of the right of timely
presentment. As such, Pugh has not demonstrated that he was deprived of his
right to timely presentment on the federal charges at issue.
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Third, Pugh claims that his statements should have been suppressed
because the interrogating officers made appeals to his religious beliefs. But an
interrogating officer’s mere reference to religious beliefs does not alone
invalidate a confession. Pugh’s reliance on Brewer v. Williams, 430 U.S. 387
(1977), to claim otherwise is misplaced. Brewer, as recognized by this court in
United States v. Dougall, 919 F.2d 932 (5th Cir. 1990), concerned the use of
religious beliefs to disregard a defendant’s invocation of his right to counsel.
Brewer, 430 U.S. at 400-01 (discussing the “Christian burial speech” as a
surreptitious interrogation). Pugh never invoked his right to counsel and all
available evidence suggests his statements were voluntarily given. As such, the
officers’ appeals to religious beliefs do not render his statements inadmissible.
Finally, Pugh claims the totality of the circumstances surrounding his
interrogation require suppression of his statements. None of the evidence cited
by Pugh suggests officers employed coercion so as to make Pugh’s statements
involuntary. As such, the district court did not err in denying Pugh’s motion to
suppress his post-arrest statements.
c. Borden’s Statements
Borden also claims that his statements to police after his arrest should
have been suppressed because he never waived his Miranda rights. The
government does not dispute that Borden’s statements were inadmissible.
Instead, it argues Borden’s claim is meritless because Borden’s post-arrest
statements were never admitted at trial. We agree. Even assuming the district
court erred in denying Borden’s motion, any resulting error was rendered
harmless by the fact that the evidence Borden sought to have suppressed was
never introduced. Because the alleged error was harmless, Borden is not
entitled to relief.
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2. The Admission of Evidence Taken from Pugh’s Home
No evidence in the record supports Pugh’s contention that his home was
searched before police obtained a warrant. While the record shows that the New
Orleans Crime Lab was “requested” to conduct a search roughly two hours before
a warrant issued, nothing suggests the search itself was conducted at that time.
Additionally, the responsible FBI agent affirmatively testified that the search
did not begin until after the warrant was signed. Accordingly, Pugh was not
entitled to suppress the evidence obtained from the search of his residence.
3. The Admission of Evidence Regarding Pugh’s Medical Examination
Pugh also claims the trial court erred in refusing to suppress the results
of a medical examination conducted after his arrest. The examination was
introduced as evidence confirming he had suffered burns and linking him to the
destruction of the SUV and McCoy’s body. The mere lack of consent to
treatment by a suspect in custody does not, by itself, mandate exclusion, and
Pugh’s attempt to invoke the Fourth Amendment protection against bodily
intrusions to exclude this evidence is unavailing. Pugh’s cited
authority—Winston v. Lee, 470 U.S. 753 (1985)—only concerned intrusions into
the body and the concomitant possibility for dignitary and privacy-related
harms. Here, the disputed evidence consisted of nothing more than a doctor’s
observations of burns on the surface of Pugh’s body. Consequently, the district
court properly refused to suppress the evidence of Pugh’s medical examination.
D. The Trial Court’s Evidentiary Rulings
Appellants individually and collectively assert three claims of error flowing
from the district court’s rulings on the evidence admitted at trial. “Generally,
challenges to the admission of evidence at trial are reviewed by this court for an
abuse of discretion, subject to harmless error analysis.” United States v.
Stephens, 571 F.3d 401, 409 (5th Cir. 2009) (internal quotation marks omitted).
1. The Admission of the 911 Tape
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Appellants argue that the tape of a 911 call placed by a local firefighter
based upon information received from two unidentified witnesses who did not
testify at trial constituted impermissible double hearsay under Federal Rule of
Evidence 805. At trial, the district court prohibited the firefighter from
testifying as to the information provided by the unidentified witnesses on the
grounds that the information provided by those individuals constituted hearsay.
Whitmore argues that the same objection should have excluded the 911 tape as
it contains the same inadmissible hearsay compounded by a second layer of
hearsay.5 Nonetheless, even assuming the district court erred, any resulting
error was harmless. The 911 tape identifies the location where the SUV went
off the road, states that a black male was seen in the vicinity, describes a silver
Scion also in the area, and mentions reports of shots fired. All of this
information was also admitted at trial through a number of other sources,
including the testimony of Mogilles and Jones. Consequently, Appellants are not
entitled to relief on these grounds.
2. The Admission of the Government’s Expert Testimony
Maureen Bradley, a Ph.D. in analytical chemistry, offered testimony at
trial linking paint chips found at the murder scene to the burned SUV found
some distance away. Appellants contend the district court erred in admitting
Bradley’s testimony on the grounds that there were no studies that established
the error rate for paint chip matching, Bradley kept no database of paint chip
comparisons, and Bradley kept no statistics on the success and error rates of her
paint chip comparisons. In short, Appellants contend Bradley’s testimony was
5
Appellants’ subsidiary argument that the admission of the 911 tape violated the
Confrontation Clause is foreclosed by Supreme Court precedent designating the information
contained in the tapes as “nontestimonial.” See Davis v. Washington, 547 U.S. 813, 822 (2006)
(“[S]tatements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency.”).
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compromised by the fact that she could not satisfy one of the Daubert 6
factors—establishing an error rate for the applied methodology. Yet, the
government was not required to satisfy every Daubert factor. See United States
v. Norris, 217 F.3d 262, 269 (5th Cir. 2000) (“Daubert makes clear that these
four factors are non-exclusive and do not constitute a definitive checklist or test.”
(internal quotation marks and citations omitted)). Bradley had testified before
as an expert witness on the same subject matter. She described the development
of a recognized methodology for comparing paint chips and the scientific
literature associated with the field. Her results were peer-reviewed. Finally,
Pugh’s cross-examination made the jury aware of the potential error rate issue
underlying Bradley’s testimony. As such, the district court did not abuse its
discretion in admitting Bradley’s testimony.
3. Rule 403 Objections to the Admission of Photos of McCoy
Appellants contend the court erred by failing to exclude numerous photos
of McCoy’s burnt body under Federal Rule of Evidence 403. Specifically,
Appellants claim the admission of several photos of McCoy’s burnt and bloody
hands and back, McCoy’s body, and McCoy’s head resulted in unfair prejudice
at trial. Under Rule 403, a district court is only required to exclude evidence if
its prejudicial effect substantially outweighs its probative value. See United
States v. Fields, 483 F.3d 313, 354 (5th Cir. 2007); see also F ED. R. E VID. 403.
“[W]e will not lightly second-guess a district court’s decision to admit relevant
evidence over a Rule 403 objection. . . . Thus, a district court’s decision on Rule
403 grounds is disturbed ‘rarely’ and only when there has been ‘a clear abuse of
discretion.’” Fields, 483 F.3d at 354.
Though the disputed photos are admittedly gruesome, the district court’s
decision to permit their introduction does not rise to the level a clear abuse of
6
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
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discretion. Appellants concede that at least some of the photos were necessary
to support the testimony of the medical examiner. As such, the prejudicial
impact of the introduction of additional photos was thereby diminished.
Moreover, as the government argues, the photos were also probative of why the
government was able to offer little in the way of physical evidence—it had been
burned along with the body. The photos also corroborated Mogilles’s testimony
and provided evidence of how McCoy had been incapacitated before his death.
Consequently, the district court did not clearly abuse its discretion when it
concluded that the prejudice created by photos of McCoy’s body did not
substantially outweigh their probative value.
E. Sufficiency of the Evidence
Whitmore and Borden appeal the district court’s denial of their motions
for judgment of acquittal.7 Where, as here, a sufficiency of the evidence
argument is raised in a timely motion for judgment of acquittal, we “examin[e]
the evidence and all reasonable inferences drawn therefrom in the light most
favorable to the verdict, and ask[] whether a rational trier of fact could have
found guilt beyond a reasonable doubt.” United States v. Garcia, 567 F.3d 721,
731 (5th Cir.), cert. denied sub nom. Arriaga-Guerrero v. United States, 130 S.
Ct. 303 (2009). “‘[I]t is not necessary that the evidence exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every conclusion except
that of guilt, provided a reasonable trier of fact could find that the evidence
establishes guilt beyond a reasonable doubt.’” Id. (quoting United States v. Bell,
678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc)). This standard applies
regardless of whether the evidence is direct or circumstantial. United States v.
Mergerson, 4 F.3d 337, 341 (5th Cir. 1993).
7
Pugh has not raised any such claim on appeal. Consequently, any claim of error
regarding sufficiency as to Pugh has been waived. Askanase v. Fatjo, 130 F.3d 657, 668 (5th
Cir. 1997) (“All issues not briefed are waived.”).
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1. Whitmore
Whitmore was convicted of kidnapping resulting in death and kidnapping
resulting in serious injury on a theory of aiding and abetting. Accordingly, the
government was required to prove beyond a reasonable doubt that (1) the
underlying offense occurred; (2) Whitmore knowingly associated with the
criminal venture; (3) she purposefully participated in the criminal activity; and
(4) she sought by her actions to make the criminal venture succeed. United
States v. Gulley, 526 F.3d 809, 816 (5th Cir.), cert. denied 129 S. Ct. 159 (2008).
Whitmore’s only contention on appeal is that the government failed to provide
evidence of any “interaction” between Whitmore and Pugh and Borden regarding
the kidnappings.
Contrary to Whitmore’s argument, the government presented sufficient
evidence to permit a reasonable juror to conclude beyond a reasonable doubt she
was aware of the kidnapping and voluntarily participated in the crime with an
aim towards making the venture succeed. The evidence demonstrated that
(1) Whitmore saw Mogilles lying on the patio of Pugh’s home “pleading” after he
had been assaulted; (2) Whitmore saw Mogilles being taken to the SUV;8
(3) Whitmore followed the SUV to the scene of murder thereby allowing Pugh
and Borden to abandon and burn the vehicle; (4) Whitmore exercised control
over the SUV while in transit to the murder scene by making it stop while she
purchasing gasoline for the Scion; (5) and Whitmore lied about knowing Pugh
and Borden and why her Scion was in the area when confronted by police only
to later admit that she had been present at the outset of the criminal venture.
In response to this evidence, Whitmore cites United States v. Barnett, 197 F.3d
8
Whitmore vigorously contended at oral argument that evidence in the record
contradicts Mogilles’s testimony on this point. Regardless, we cannot and will not usurp the
role of the jury to make credibility determinations or weigh contradictory evidence. Brennan’s
Inc. v. Dickie Brennan & Co., 376 F.3d 356, 362 (5th Cir. 2004) (“[T]he court may not make
credibility determinations or weigh the evidence, as those are jury functions.”).
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138 (5th Cir. 1999), but in that case the defendant never knew of the specific
underlying unlawful act. Id. at 146-47. Here, a reasonable juror could conclude
beyond a reasonable doubt that Whitmore was aware of the kidnapping that
began in her presence within her home, that her participation in the crime was
purposeful, and she sought by her actions to make the criminal venture succeed.
Consequently, while the evidence was not overwhelming, it was sufficient to
support the jury’s verdict. As such, the district court correctly denied
Whitmore’s motion for judgment of acquittal.
2. Borden
Borden contends that the district court erred in denying his motion for
judgment of acquittal because (1) there was no proof he knew the unlawful
purpose or object of the conspiracy and joined in it willfully; (2) there was no
physical evidence that he held or fired the murder weapon during the
kidnapping; and (3) the cumulative effect of the trial court’s errors was to
deprive of his right to a fair trial. All three claims lack merit, and the district
court correctly denied Borden’s motion for judgment of acquittal.
As to the first claim, Borden suggests the government was required to
present direct evidence that he “knew the unlawful purpose” when he acted to
kidnap McCoy and Mogilles with Pugh and Whitmore. We have previously held
that “[d]irect evidence of a conspiracy is unnecessary; each element may be
inferred from circumstantial evidence.” Mitchell, 484 F.3d at 768-69 (internal
quotation marks omitted). Moreover: “An agreement may be inferred from a
‘concert of action.’” Id. at 769 (internal quotation marks omitted). Consequently,
the evidence that Borden held the murder weapon to McCoy’s head during the
kidnapping was sufficient in itself to demonstrate an agreement to participate.
As to the second claim, Borden argues that the government failed to
present evidence that Borden had gun powder residue on his hands or that his
fingerprints were found on the murder weapon, thus the evidence did not
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support the jury’s finding that he used a firearm in the kidnapping. Yet Mogilles
testified that he observed Borden with a handgun aimed at McCoy during the
kidnapping. We find the jury was free to rely upon the testimony given at trial
to conclude that Borden held the gun on the victims. Garcia, 567 F.3d at 731
(“‘A jury is free to choose among reasonable constructions of the evidence.’”
(quoting Bell, 678 F.2d at 549 )).
Finally, as to the cumulative errors claim, where we find no merit in any
of a defendant’s claims of error, his claim of cumulative error must also fail. See
United States v. Moye, 951 F.2d 59, 63 n.7 (5th Cir. 1992). As such, the district
court did not err in denying Borden’s motion for judgment of acquittal.
D. The Reasonableness of Appellants’ Sentences
Whitmore and Borden9 advance various procedural and substantive
objections to their sentences. In Gall v. United States, 552 U.S. 38 (2007), the
Supreme Court set out a bifurcated approach for conducting a sentencing review.
An appellate court must first determine whether the district court committed
any significant procedural error. Id. at 51. If there is no procedural error, we
then “consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard” to the extent it has been raised by the appealing
party. Id. The district court’s interpretation or application of the Sentencing
Guidelines is reviewed de novo, and its factual findings are reviewed for clear
error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
1. Whitmore
Whitmore’s argument on appeal concerns only whether the district court
committed a procedural error; she does not otherwise argue the substantive
reasonableness of her sentence. Specifically, Whitmore contends the district
9
Pugh does not assert any claims error regarding his sentence. As such, any challenge
to the procedural computation or substantive reasonableness of his sentence has been waived.
See Askanase, 130 F.3d at 668.
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No. 09-60400
court erred (1) by accepting the pre-sentence report’s (“PSR”) recommendation
of an offense level of 43 for the kidnapping resulting in McCoy’s murder; and (2)
by declining to designate her a “minimal participant” under U.S. Sentencing
Guidelines Manual § 3B1.2.
Regarding the PSR recommendation, Whitmore claims that she should not
have been subject to the higher penalty for kidnapping resulting in death
because McCoy’s murder was not reasonably foreseeable under the
circumstances. As discussed above, several pieces of evidence demonstrated not
only that Whitmore was an active participant in the kidnappings but, as is
relevant to her sentence, that she was aware that a violent assault on Mogilles
and McCoy initiated the kidnappings. She saw Mogilles on the ground pleading
after having been hit over the head, and she saw both men dragged to the SUV.
Though she may not have seen the murder weapon, the violence she observed
before the kidnapping was sufficient to permit the district court to conclude that
McCoy’s murder and the injuries to Mogilles were reasonably foreseeable.
Accordingly, the district court did not abuse its discretion by adopting the PSR’s
level 43 recommendation.
With respect to the “minimal participant” provision, Whitmore claims that
she was entitled a sentence reduction because she did not commit any of the
physical acts necessary to carry out the kidnappings or the subsequent murder
and assault.10 “Whether [a defendant] was a minor or minimal participant is a
factual determination that we review for clear error.” United States v.
Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). It is not enough that the evidence
reflects that a defendant “[did] less than other participants; in order to qualify
10
To the extent Whitmore argues in the alternative that the district court “failed to
consider” her request to be treated as a “minimal participant,” the district court clearly and
directly considered and rejected Whitmore’s request—a point even Whitmore concedes
elsewhere in her brief.
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No. 09-60400
as a minor participant, a defendant must have been peripheral to the
advancement of the illicit activity.” Id. at 204 (internal quotation marks
omitted). Whitmore traveled from Louisiana to Mississippi following what the
jury found she knew to be a kidnapping in progress. Her presence was needed
to provide the “getaway car” and enable Pugh and Borden to burn the evidence
of the crime. It may very well be that her association with Pugh led her into this
crime which she might otherwise have not committed. However, that fact does
not require a finding that she was a minimal participant. In light of the facts
before the district court, we conclude that it did not clearly err in declining to
apply the “minimal participant” sentencing reduction.
2. Borden
Borden broadly contends that his sentence is “extremely harsh compared
to the actual crime that was committed” and, thus, substantively unreasonable
under 18 U.S.C. § 3553(a). Borden has failed to articulate which—if any—of the
§3553(a) factors would demonstrate the unreasonableness of his sentence. When
a sentence falls within a properly calculated guidelines range, the sentence is
presumptively reasonable. See United States v. Medina-Argueta, 454 F.3d 479,
481 (5th Cir. 2006). Borden’s life sentence fell within the properly calculated
range for his convictions. He has offered nothing but naked assertions of excess
to rebut this presumption. Accordingly, we find the district court did not abuse
its discretion in imposing Borden’s sentence—particularly in light of the
significant evidence presented to the district court regarding Borden’s personal
culpability for a very serious and violent crime.
III. CONCLUSION
For the reasons set forth above, the judgment of the district court is
AFFIRMED.
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