United States v. Gauthier

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40313
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHERRY KAYE GAUTHIER; PAMELA D. SMALL,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:99-CR-46-2
January 15, 2001
Before GARWOOD, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Sherry Kaye Gauthier and Pamela D. Small appeal their
convictions for conspiracy to commit mail fraud, in violation of 18
U.S.C. § 371, and one count of mail fraud, in violation of 18 U.S.
C. § 1341. Gauthier contends that the admission of seven specified
out-of-court statements by Small, who (like Gauthier) did not
testify, violated Gauthier’s Sixth Amendment Right to
*
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opinion should not be published and is not precedent except under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.
Confrontation. Gauthier also argues that the district court erred
in refusing to reduce her offense level under U.S.S.G. § 3B1.2 for
minimal or, in the alternative, minor participation. Both
defendants contend that the district court erred in determining the
amount of loss under U.S.S.G. § 2F1.1.
Our review of the record and the arguments and authorities
convinces us that no reversible error was committed. In Bruton v.
United States, 391 U.S. 123 (1968), the Supreme Court held that a
defendant’s Sixth Amendment Right to Confrontation is violated
“when his non-testifying co-defendant’s confession naming him as a
participant in the crime is introduced at their joint trial, even
if the jury is instructed to consider that confession only against
the co-defendant.” United States v. Nutall, 180 F.3d 182, 188 (5th
Cir. 1999), cert. denied, 120 S.Ct. 2201 (2000). We review a
properly raised Bruton issue under an abuse-of-discretion standard.
United States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998). We
review the admission of those statements to which Gauthier did not
object only for plain error. See United States v. Walker, 148 F.3d
518, 522 (5th Cir. 1998).
The statements Gauthier challenges on appeal and designates as
numbers 1, 2 and 3 make absolutely no mention of her and hence do
not directly or plainly incriminate her without reference to other
admissible evidence and thus do not fall within the proscription of
Bruton. See United States v. Lage, 183 F.3d 374, 386 (5th Cir.
2
1999). Further, these statements, as well as statement number 4,
all fall within a “firmly rooted” hearsay exception to Bruton,
namely that for co-conspirator statements made during and in
furtherance of the conspiracy, as the trial court properly ruled.
See Walker, 148 F.3d at 522. This is likewise true respecting
statement 7, and in any event that statement is plainly not hearsay
and not admitted for the truth of the matter asserted; the witness
was merely testifying as to a verbal act by Small, her offering of
a bribe to the witness in the presence of the witness; nothing of
the witness’s testimony as to what Small said in that connection
implicates Gauthier; Gauthier was shown to be present, but only by
the witness’s own testimony as to her own observation of Gauthier,
not by any statement which the witness testified Small made.
Statements 5 and 6 were not objected to by Gauthier at trial
(nor, indeed, were any of the seven statements objected to on
Bruton related grounds except statement 1).1 Statement 6 contains
nothing plainly incriminatory of Gauthier. This is also largely
true of statement 5, although a small part of it might fairly be
1
Statements 5 and 6 were admitted only as against Small, and
the jury was told not to consider them as to Gauthier. This, of
course, does not preclude Bruton error, but it may explain the
failure to object. We further note that these statements could
have been properly admitted against Gauthier under the co-
conspirator exception as Small clearly had not withdrawn from the
conspiracy and was trying to keep it concealed so it could still be
carried out. See United States v. Esacove, 943 F.2d 3, 5 (5th Cir.
1991); United States v. Broussard, 80 F.3d 1025, 1039 (5th Cir.
1996).
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described as plainly incriminatory of Gauthier. Nevertheless, it
is clear that any error in admitting statements 5 and 6 was
harmless beyond a reasonable doubt, as the prosecution’s other
evidence (indeed, its evidence apart from any of the statements)
was not simply adequate but was indeed overwhelming and compelling,
any Bruton vulnerable portion of statements 5 and 6 was essentially
cumulative, and neither defendant presented any evidence. See
Nutall, 180 F.3d at 188; United States v. Cartwright, 6 F.3d 294,
300 (5th Cir. 1993).2
Finally, the district court did not abuse its discretion when
it determined that Gauthier was not entitled to a reduction in her
offense level because she was not a minor or minimal participant.
United States v. Posada-Rios, 158 F.3d 832, 880 (5th Cir. 1998).
The district court’s loss calculation, based upon the entire value
of the estate of John Waits, Jr., is plausible in light of the
record as a whole, and the district court did not err by refusing
the defendants the benefit of a three-level reduction in their base
offense level pursuant to U.S.S.G. § 2X1.1. See United States v.
2
We observe that in her statement of issues on appeal Gauthier
lists denial of her motion for severance and of her motion for
mistrial. Neither issue, however, is otherwise actually briefed.
Those issues are hence deemed abandoned. Moreover, each is wholly
without merit. The motion to sever was not filed until after voir
dire was completed and the jury had been selected, and was hence
untimely and waived. See United States v. Palmer, 122 F.3d 215,
220 (5th Cir. 1997). The motion for mistrial was predicated on the
admission of statement 1; for the reasons above set out, there was
no error in the admission of statement 1.
4
Oates, 122 F.3d 222, 225-27 (5th Cir. 1997).
We affirm the convictions and sentences of both Gauthier and
Small.
AFFIRMED.
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