United States v. Burton

REVISED
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-20350
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
JOSHUA MAZIQUE BURTON; QUINTON B. CARR
Defendants - Appellants.
Appeals from the United States District Court
For the Southern District of Texas
October 17, 1997
Before DUHÉ and BARKSDALE, Circuit Judges, and COBB, District
Judge.1
JOHN M. DUHÉ, JR., Circuit Judge:
Appellants Joshua Burton and Quinton Carr were convicted and
sentenced for conspiracy to commit robbery, in violation of 18
U.S.C. § 371 (“conspiracy”), and for attempted robbery by force,
violence and intimidation, in violation of 18 U.S.C. §§ 2113(a) and
2 (“bank robbery”). On appeal, Appellants contend the Government’s
evidence was insufficient to convict them of either offense and
that the district court erred in adding a six-level increase to
1
District Judge of the Eastern District of Texas, sitting by
designation.
their offense levels for “otherwise using a firearm.” We affirm.
BACKGROUND
On December 21, 1994, two armed men attempted to rob Bank One
in Missouri City, Texas at around 2:30 p.m. The men were dressed
in grey sweat suits and wore black masks. They pointed guns at the
bank employees and threatened to kill the employees if they did not
cooperate. After unsuccessfully attempting to enter the bank
vault, the men abandoned their robbery attempt. Before leaving,
the robbers threatened to blow up the bank and left two small
packages they removed from a black duffel bag. The packages were
actually shoe boxes containing road flares, wires and an alarm
clock and could not be detonated. The only description of the
robbers the bank employees could provide was that the skin around
their eyes not covered by the masks revealed the men were African-
American.
A witness using the ATM outside the bank saw two men in grey
sweat suits run out of the bank carrying a black duffel bag, enter
a parked blue car, and drive away, apparently driven by a third
man. Policemen soon arrived and found the car abandoned, with the
motor running, at a nearby car wash. The car was later determined
to belong to Quinton Carr (“Carr”). Around midnight on December
22, the morning after the robbery attempt, Carr called the police
and reported the car stolen.
The Government alleged that Joshua Burton (“Joshua”) and his
cousin, Wilton Burton (“Wilton”), actually entered the bank, and
that Carr (Joshua’s cousin and Wilton’s brother) allowed his car to
2
be used for the getaway and also picked up Joshua and Wilton after
the robbery. Wilton gave a statement to police apparently
implicating Joshua and Quinton in the robbery, but recanted that
statement at trial, claiming he had confessed only because
policemen were beating him. After a trial in which the Government
relied largely on circumstantial evidence, Appellants were
convicted on both counts.
ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE
In reviewing the sufficiency of the evidence, we view the
evidence and all inferences to be drawn from it in the light most
favorable to the verdict to determine if a rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. United States v. Broussard, 80 F.3d 1025, 1030
(5th Cir.), cert. denied, 117 S.Ct. 264 (1996). “The evidence need
not exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, and the
jury is free to choose among reasonable constructions of the
evidence.” United States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.
1994). The standard of review is the same regardless whether the
evidence is direct or circumstantial. United States v. Cardenas,
9 F.3d 1139, 1156 (5th Cir. 1993).
To establish a conspiracy under 18 U.S.C. § 371, the
Government must prove (1) an agreement between two or more persons,
(2) to commit a crime, and (3) an overt act committed by one of the
conspirators in furtherance of the agreement. United States v.
3
Gray, 96 F.3d 769, 772-73 (5th Cir. 1996), cert. denied, 117 S.Ct.
1275 (1997). The conspiracy need not be proved by direct evidence,
but agreement may be inferred from circumstantial evidence, such as
concert of action. United States v. Schmick, 904 F.2d 936, 941
(5th Cir. 1990). “When the [G]overnment attempts to prove the
existence of a conspiracy by circumstantial evidence, each link in
the inferential chain must be clearly proven.” United States v.
Galvan, 693 F.2d 417, 419 (5th Cir. 1982). Proof of “mere
association” with persons involved in criminal activity is
insufficient, by itself, to establish participation in a
conspiracy. Id. at 420. Likewise, familial relationships alone
will not support a conspiracy conviction; “[i]nferences drawn from
familial relationships or mere knowing presence, however, may be
combined with other circumstantial evidence to support a conspiracy
conviction.” Broussard, 80 F.3d at 1031, citing United States v.
Williams-Hendricks, 805 F.2d 496, 503 (5th Cir. 1986).
To convict of bank robbery under 18 U.S.C. § 2113(a), the
Government must prove (1) an individual or individuals (2) used
force and violence or intimidation (3) to take or attempt to take
(4) from the person or presence of another (5) money, property or
anything of value, (6) belonging to or in the care, custody,
control, management, or possession (7) of a bank, credit union, or
savings and loan association. United States v. McCarty, 36 F.3d
1349, 1357 (5th Cir. 1994).
A person who aids or abets the commission of a crime is
punishable as a principal. 18 U.S.C. § 2. To prove aiding and
4
abetting, the Government must show that the defendant (1)
associated with the criminal venture; (2) participated in the
venture; and (3) sought by action to make the venture succeed.
United States v. Salazar, 66 F.3d 723, 729 (5th Cir. 1995).
A. Joshua Burton
1. Testimony of Wilton Burton
Wilton Burton made a videotaped statement to the police in
which he apparently implicated the Appellants in the planning and
commission of the bank robbery. He testified for the Government
under a grant of both state and federal immunity. At trial,
however, Wilton recanted his earlier statement, claiming that he
had made it only because the police were beating and kicking him.
The court allowed a portion of his videotaped statement to be
played before the jury, but only for the purpose of impeachment, to
demonstrate Wilton’s demeanor during the taping. The substance of
most of Wilton’s statement is not of record; the Government may
thus not rely on it as evidence of Joshua Burton’s guilt.2 The
Government did try, however, to elicit from Wilton on direct
examination what he told the police.
At trial, Wilton categorically denied any involvement in or
2
In its brief, the Government recites at length facts
allegedly from Wilton Burton’s statement to investigating officers.
We cannot understand, however, how the Government hopes to rely on
this “evidence” as supporting Joshua Burton’s convictions: Wilton
Burton’s statement to the officers is simply not of record. We
also note that the Assistant United States Attorney in this case
improperly referred to the substance of Wilton’s statement in his
closing argument and even invited the jury to consider “parts of
what he said happened that day and recanted.” Such comments were
improper, but, as Appellants did not raise them as error on appeal,
we also do not address them.
5
knowledge of the attempted robbery.3 He did admit on direct
examination, however, to having made certain admissions to agents
during questioning:
Q: You told [F.B.I. agent Johnson] you were one of the
men that walked into the bank?
A: Yes.
* * *
Q: You said Joshua [Burton] was the other man in these
photographs you looked at? (referring to photographs of
the robbers taken by bank cameras)
A: Yes.
Wilton also admitted to telling police that Carr picked him up at
his cousin Christopher Spooner’s house early on the morning of the
robbery and that they went to see their cousin, Craig Burton;4 that
Wilton, Joshua, Carr, Spooner, and Craig Burton had robbed the
bank; and, that he and Joshua had gone to rob the bank in Carr’s
automobile. Of course, Wilton denied that these statements were
true; he admitted only that he had made them, but while under
duress.
2. Asia Morgan’s Testimony
The court admitted against Joshua Burton the testimony of Asia
Morgan regarding one conversation she overheard between her
husband, Christopher Spooner, and Wilton Burton and another she
3
The Government later established that Wilton Burton’s
fingerprint was found on one of the fake bomb shoeboxes recovered
from the scene of the robbery.
4
Craig Burton is yet another relative of Appellants and was
indicted for the same crimes. At the close of the Government’s
case, however, the court granted Craig Burton’s motion for judgment
of acquittal.
6
herself had with Wilton. Christopher Spooner is Wilton Burton’s
cousin; Wilton regularly spent the night at Asia and Christopher’s
apartment.
On appeal, Joshua Burton contends the court erred in admitting
Asia’s testimony because it was hearsay and did not fall within the
“co-conspirator” exception of Federal Rule of Evidence
801(d)(2)(E).5 Before admitting a co-conspirator’s statement under
this Rule, the court must determine by a preponderance of the
evidence (1) that there was a conspiracy involving the declarant
and the non-offering party, and (2) that the statement was made
“during the course and in furtherance of the conspiracy.” United
States v. Bourjaily, 483 U.S. 171, 175 (1987); United States v.
McConnell, 988 F.2d 530, 533 (5th Cir. 1993). In making that
determination, the court may consider the hearsay statements sought
to be admitted. Bourjaily, 483 U.S. at 181. Joshua argues that
there was insufficient evidence to find he was a member of the
conspiracy. He also maintains, in any case, that the statements
testified to by Asia Morgan were not “in furtherance of” the
conspiracy.
The court found, by a preponderance of the evidence, that
Joshua was a member of a conspiracy including Wilton Burton and
Quinton Carr. The court made no finding, however, whether the
statements Asia testified to were “in furtherance of” the
5
“A statement is not hearsay if . . . [t]he statement is
offered against a party and is . . . a statement by a coconspirator
of a party during the course and in furtherance of the conspiracy.”
Fed. R. Evid. 801(d)(2)(E).
7
conspiracy.
We must first address whether Joshua Burton adequately raised
these issues in the district court. An appellant must raise an
objection to the admission of evidence at trial such that the issue
is presented to the district court “with sufficient specificity.”
United States v. Maldonado, 42 F.3d 906, 910 (5th Cir. 1995). A
sufficiently specific objection is necessary at trial so that
“testimony could have been taken, and argument received, on that
issue; and [so that] the district court would have dealt with it.”
Maldonado, 42 F.3d at 912. If the issue was not adequately raised
at trial, we review only for plain error. United States v.
Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc).
Near the beginning of Asia Morgan’s direct examination, the
Government asked her whether she had ever heard Wilton Burton speak
to her husband “about planning a bank robbery.” At that point,
counsel for Craig Burton and Joshua Burton made the following
objections:
MR. WILSON: Your Honor, I’d object to any references
to my client Craig Burton under 801.d2e.
MS. KAPUNGU: The same would apply to Joshua Burton.
(emphasis added). The court did not immediately rule on those
objections; instead, it instructed the Government to “ask the
question” again. The Government’s questions immediately subsequent
to those objections did not raise any hearsay matters and so there
were no further objections.
Soon after that exchange, there was a bench conference in
which the AUSA indicated that the Government intended to introduce
8
testimony by Asia regarding a conversation she had had with Wilton
Burton that alluded to the bank robbery and implicated Joshua. The
court then questioned the AUSA as to what evidence the Government
had linking Joshua to the conspiracy involving Wilton Burton and
Quinton Carr.6 When the AUSA informed the court that it intended
to introduce the testimony of F.B.I. Agent Eric Johnson (see
discussion infra Part I.A.4) that would link Joshua to the
conspiracy, the court made the following finding:
Subject to that evidence coming in and then conditioned
upon [its] admissibility, I am going to I conclude
[sic] that Joshua was a member of this same conspiracy
that I earlier found by a preponderance of the evidence
existed between Wilton Clyde Burton Junior and Quinton
Carr.
During this colloquy, counsel for Joshua Burton raised only the
sufficiency of the Government’s evidence linking Joshua to the
conspiracy. The “in furtherance” requirement of 801(d)(2)(E) was
not mentioned and the court made no findings on that point.
On this record, we find that Joshua Burton’s counsel
adequately objected to Morgan’s testimony on the ground that
sufficient evidence had not been adduced to link Joshua to the
conspiracy. The issue whether the statements to which Asia Morgan
testified were “in furtherance of” the conspiracy, however, was not
specifically raised. On appeal, Joshua Burton relies on his
counsel’s objection to Asia Morgan’s testimony “under 801.d2e”;
indeed, in his brief Joshua Burton claims that “[h]is objection
6
The court had previously found, by a preponderance of the
evidence, that a conspiracy existed between Wilton Burton and
Quinton Carr.
9
could not have been more precise.” In this particular context,
however, that is not the case.
In Maldonado, the issue was whether defense counsel objected
with sufficient specificity that a police officer’s Terry stop and
patdown search of defendant contravened the Supreme Court’s (then)
recent decision in Minnesota v. Dickerson, 508 U.S. 366 (1993).7
During the patdown, the officer discovered a bulge in defendant’s
boot, reached in and withdrew a rounded, duct-taped package and
opened it; the package contained heroin. Counsel objected that
the officer had no “probable cause” to open the package, but did
not cite Dickerson to the court, even though Dickerson had been
decided three and one-half months before defendant’s motion to
suppress was filed. We determined that the Dickerson issue had not
been adequately raised at trial and therefore reviewed for plain
error. Maldonado, 42 F.3d at 912.
Joshua Burton argues that Maldonado resolves the question in
his favor: counsel in Maldonado did not cite Dickerson to the
district court and therefore forfeited the error based on Dickerson
(i.e., that the officer’s “plain feel” seizure of the heroin
violated Terry because it should have been immediately apparent to
the officer that the package was not a weapon); by contrast,
Joshua’s trial counsel cited the specific rule and subsection of
7
Dickerson held that an officer may lawfully seize contraband
during a Terry search only if the search remains within the bounds
of Terry (i.e., the officer is investigating an object that may
reasonably be a weapon) and the object’s identity as contraband is
“immediately apparent.” See Maldonado, 42 F.3d at 909, citing
Dickerson, 508 U.S. at 375; see also Terry v. Ohio, 392 U.S. 1, 26
(1968).
10
the Federal Rules of Evidence on which her objection was based.
Therefore, Joshua argues, her objection was sufficiently specific
to bring any issue under 801(d)(2)(E) before the district court.
Joshua, however, exaggerates the “specificity” of trial counsel’s
objection and misapprehends the thrust of Maldonado.
Under Maldonado, a determination whether an objection was made
with “sufficient specificity” does not hinge on whether counsel
cited a specific case or article in her objection. Instead, the
touchstone is whether the objection was specific enough to allow
the trial court to take testimony, receive argument, or otherwise
explore the issue raised. Maldonado, 42 F.3d at 912.8 Certainly,
citing a specific case or article to the court could shed more
light on the substance of an objection. On this record, however,
more was necessary to bring the “in furtherance” issue before the
district court.
First, Rule 801(d)(2)(E) contains at least four possible bases
for an objection to proffered co-conspirators’ testimony: that the
declarant was not a co-conspirator; that the party against whom the
8
In Maldonado we did indicate that a specific citation to
Dickerson would probably have been sufficient to bring the issue
before the district court. Maldonado, 42 F.3d at 910 (“At no stage
of the suppression process was Dickerson ever cited to the district
court . . .”). That was true in Maldonado, not because citing a
case or rule magically presents a particular issue to the court,
but because in the precise context of Maldonado (an evidentiary
suppression hearing regarding the propriety of a Terry patdown), a
citation to Dickerson would have been sufficiently specific. In
the instant matter, by contrast, a bare-bones citation to rule
801(d)(2)(E) was not sufficient to bring the “in furtherance” issue
clearly before the district court; the discussion of court and
counsel subsequent to that objection, in which no mention was made
of the “in furtherance” issue, shows this to be true.
11
statement is offered was not a co-conspirator; that the statement
was not made “in the course” of the conspiracy; that the statement
was not made “in furtherance of” the conspiracy. See McConnell,
988 F.2d at 533. A court could entertain an objection to a co-
conspirator’s statement under any of these distinct bases; the
objection would still, however, be “under 801(d)(2)(E).” See,
e.g., McConnell, 988 F.2d at 534.
Second, the fact that the party offering the co-conspirator’s
statement has the burden of establishing that the statement falls
within 801(d)(2)(E), see United States v. Triplett, 922 F.2d 1174,
1181 (5th Cir. 1991), has no bearing on whether an adequate
objection was raised to the proffered evidence. Whether the
offering party carried its burden or not, if the objecting party
wants to avoid forfeiting its error on appeal it must object with
“sufficient specificity” to allow the trial court to address the
issue. Maldonado, 42 F.3d at 910, 912.
Third, and most importantly, the thrust of the objections here
was whether sufficient evidence linked Joshua to the conspiracy and
not whether the statements were “in furtherance of” the conspiracy.
See Maldonado, 42 F.3d at 911 (“Argument presented at the hearing
by Maldonado’s lawyer after the testimony further indicates he was
concerned only with post-removal probable cause.”). During the
bench conference at which the propriety of Asia Morgan’s testimony
was before the court, the “in furtherance” requirement was not
12
mentioned.9
In sum, then, the objection that the statements to which Asia
testified were not “in furtherance of” the conspiracy was not
adequately raised. We therefore review that point for plain error.
Calverley, 37 F.3d at 162; Fed. R. Crim. P. 52(b). On the other
hand, the ground that the Government had not adduced sufficient
evidence linking Joshua Burton to the conspiracy was adequately
raised. We will thus review the district court’s finding on that
point for clear error. United States v. Hawkins, 661 F.2d 436, 450
(5th Cir. 1981).
We first deal with the district court’s finding that the
Government proved that Joshua Burton was a member of the
conspiracy. The Government called F.B.I. Agent Eric Johnson, who
testified that he found receipts for clothing and a duffel bag in
a room that Joshua had recently vacated.10 Other witnesses
identified the objects corresponding to the bar codes on those
receipts (grey sweat clothes and a black duffel bag) as “similar”
to those used in the robbery.11 The Government also introduced the
9
Additionally, the “801(d)(2)(E)” objection came well before
that bench conference, and in the context of a different
conversation overheard by Asia between her husband and Wilton
Burton.
10
Agent Johnson also testified that he found letters in the
room from Joshua to his girlfriend LeJuangela Jones, thus tying the
objects found in the room to Joshua.
11
The actual clothes worn and the duffel bag used in the
robbery were not recovered by the Government. Contrary to what the
Government asserted in its brief, witnesses at trial were shown
items that corresponded to the bar codes on receipts found in
Joshua’s former room, and not the actual items.
13
testimony of Ed Burton, the Appellants’ uncle, that while he was
working in the vicinity of the bank on the morning of the robbery
he thought he saw Joshua Burton driving around in Quentin Carr’s
blue Pontiac (the car that was later found abandoned at the car
wash and identified as the one used in the robbery). Finally, the
court could have relied on Wilton Burton’s testimony that he told
police he and Joshua were the men appearing in the bank photos of
the robbery.
Given this evidence, we cannot say the district court’s
determination that Joshua was a member of the conspiracy was
clearly erroneous.
We next turn to the question whether admission of Asia
Morgan’s testimony constituted “plain error” because the statements
to which she testified were not “in furtherance” of the conspiracy
between Joshua Burton, Wilton Burton and Quinton Carr. Fed. R.
Crim. P. 52(b); Fed. R. Evid. 801(d)(2)(E). We conclude that
allowing her testimony did not constitute “plain error” in that the
error, if any, was not “plain” under current law.
We follow a four step analysis for “plain error” review: (1)
there must be an “error,” i.e., a “deviation from a legal rule,”
that has not been waived; (2) the error must be “plain,” i.e.,
“clear” or “obvious” under current law; (3) the error must “affect
substantial rights,” i.e., it must have affected the outcome of the
proceeding; and, (4) even if the error was “plain” and “affected
substantial rights,” the Court of Appeals, exercising its
discretion, should correct the error only if the error “seriously
14
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 732-737
(1993); United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.
1994) (en banc).
Since we resolve the question by reference to the second Olano
factor (i.e., that the error here was not “plain”), we assume
without deciding that the district court’s decision to admit Asia
Morgan’s testimony was error.12 By “plain,” the United States
Supreme Court means “clear” or “obvious” under current law. Olano,
507 U.S. at 734; Calverley, 37 F.3d at 162-164. Thus, we must
examine, first, what Asia Morgan testified to, and, second,
determine whether under current law it is “clear” or “obvious” that
such a statement was not “in furtherance of” the conspiracy under
801(d)(2)(E).
Asia testified that she had a conversation with Wilton Burton
sometime before December 21, the day of the robbery. During that
conversation, Wilton told her that “it was going to be a nice
Christmas.” When asked whether Wilton explained to her why it
would be a “nice Christmas,” Asia testified (after refreshing her
recollection from her grand jury testimony): “He [Wilton] said
that he and his cousin had planned to rob a bank.” Asia explained
that Wilton was referring to his cousin “Zeaki”; it had earlier
been established that “Zeaki” was Joshua Burton’s nickname. See
discussion infra Part I.A.3.
12
For purposes of resolving this issue, then, we assume that
the statements to which she was allowed to testify were not “in
furtherance of” the conspiracy.
15
The requirement that a co-conspirator’s statement be “in
furtherance of” the conspiracy “is not to be construed too strictly
lest the purpose of the exception be defeated.” United States v.
Broussard, 80 F.3d 1025, 1039 (5th Cir. 1996); United States v.
Lechuga, 888 F.2d 1472, 1480 (5th Cir. 1989). We have “shunned an
overly literal interpretation of this [phrase].” Broussard, 80
F.3d at 1039, quoting United States v. Ascarrunz, 838 F.2d 759, 763
(5th Cir. 1988). “Mere idle conversation,” however, is not
considered “in furtherance of” a conspiracy. United States v.
Means, 695 F.2d 811, 818 (5th Cir. 1983); United States v. Miller,
664 F.2d 94, 98 (5th Cir. 1981).
We have found the following statements to be “in furtherance
of” a conspiracy under 801(d)(2)(E): “a statement that identifies
the role of one co-conspirator to another” (United States v. Magee,
821 F.2d 234, 244 (5th Cir. 1987)); statements conveying
“information [that] could have been intended to affect future
dealings between the parties” (United States v. Patton, 594 F.2d
444, 447 (5th Cir. 1979)); “[p]uffing, boasts, and other
conversation . . . when used by the declarant to obtain the
confidence of one involved in the conspiracy” (Miller, 664 F.2d at
98); “statements which are puffing or boasts, but which are used to
obtain the confidence of the person toward whom the statement is
directed” (United States v. Johnson, 872 F.2d 612, 623 (5th Cir.
1989)). See also United States v. Smith, 833 F.2d 213, 219 (10th
Cir. 1987) (“[S]tatements that explain events of importance to the
conspiracy in order to facilitate its operation are considered to
16
be in furtherance of the conspiracy.”).
We cannot, after examining the current law construing the “in
furtherance of” requirement of 801(d)(2)(E), say that the error, if
any, was “plain.” Given the vague nature and context of the
comments made to Asia by Wilton Burton, we are not prepared to deem
it “plain” under current law that these statements were not “in
furtherance of” the conspiracy.
3. Testimony of Ed Burton
Ed Burton, both Joshua Burton and Quinton Carr’s uncle,
testified that on the morning of December 21, while he was on his
way to work, he thought he saw his nephew Joshua driving Carr’s
vehicle13 in the vicinity of Bank One. Although Ed had not seen
Joshua in four or five years, he testified that he would have been
able to recognize him.14 Ed called out to his nephew when he saw
him, but received no response.15
Ed also testified that later that day, around 3:00 p.m., he
saw the same car fleeing the scene of the robbery (he was unable to
identify its occupants at that time, however). When shown a
picture of the car found abandoned at the car wash, Ed Burton
13
Ed Burton initially testified that the car was “green.”
Further testimony established that Ed was not particularly “good on
colors.” He was able to identify the car as the same one depicted
in the photos shown to him of the car wash. The jury could have
reasonably believed, then, that Ed made a mistake when he
originally testified the car was “green” and not “blue.”
14
Ed also testified that Joshua’s nickname was “Zeaki.”
15
It bears noting here that Rita Gwen, Carr’s girlfriend,
testified that Carr picked her up that same morning in a cream-
colored Lexus; it was shown that Joshua drove a cream-colored
Lexus. See discussion infra Part I.B.3.
17
identified it as the same car he had seen twice before on the day
of the robbery in the vicinity of Bank One.
4. Clothing and duffel bag receipts.
F.B.I. Agent Eric Johnson testified that on December 23, 1994
he searched a room where Joshua Burton had been staying.16 In the
room, Agent Johnson found three receipts, one from K-Mart and two
from Academy, dated November 30, 1994 (about three weeks before the
robbery).
An employee of K-Mart testified that the UPC codes on the K-
Mart receipt corresponded to a duffel bag and to a “small, flat
hat.” When shown photos from the bank robbery, she also stated
that the hats the robbers had pulled down over their faces were
similar to the type indicated by the UPC codes on the receipts.
Other eye-witnesses to the robbery testified that a duffel bag
matching the code on the receipt was similar to the one the robbers
were carrying and from which they took the fake bombs.
An employee of Academy testified that the SKU numbers on the
Academy receipt corresponded to grey sweat pants, a small sweat
shirt, and a large hooded sweat shirt. Eye-witnesses to the
robbery identified clothing corresponding to the SKU numbers on the
receipts as similar to clothing worn by the robbers.
16
Joshua’s counsel objected to Agent Johnson’s testimony on the
basis that it had not been established that the room was Joshua’s
“residence.” Agent Johnson testified, however, that before
searching the room he “conducted several computer checks,”
consulted with other investigators, was informed by the owners of
the house that the room had recently been Joshua’s, and, finally
and perhaps most importantly, found letters in the room from Joshua
to his girlfriend, LeJuangela Jones.
18
5. Conclusion
The Government proved that Joshua Burton was seen in the
vicinity of the bank on the day of the robbery driving the car that
was later used in the robbery. There was also testimony that
Quinton Carr was driving Joshua Burton’s Lexus around that same
time. The Government introduced receipts found where Joshua had
recently been living; those receipts corresponded to clothing and
items identified by eye-witnesses as similar to the clothing worn
by the robbers and a bag used by the robbers to carry fake bombs.
There was evidence that Wilton Burton, one of Joshua’s co-
conspirators, talked about planning the robbery with Joshua.
Finally, Wilton admitted at trial that he had told police that he
and Joshua were the men in the photos of the robbery taken by bank
cameras. Wilton recanted that statement in the same breath, but
the jury was entitled to believe what he admitted at trial to have
been his earlier version. The jury also could have relied, along
with the other circumstantial evidence, on Joshua’s familial
connection with the other participants in the robbery. See
Williams-Hendricks, 805 F.2d at 503.
Based on this evidence, a rational trier of fact could have
found beyond a reasonable doubt that the Government carried its
burden of proof as to Joshua Burton.
B. Quinton Carr
1. The blue Pontiac.
Police found a blue Pontiac abandoned, with its engine still
running, in a car wash near the robbery scene. The key was in the
19
ignition and the car showed no signs of having been hot wired.
Police found evidence in the car linking it to Quinton Carr,
including an automobile service contract in Carr’s name, Carr’s
medical card, and cards written to Carr by his girlfriend Rita
Gwen. Ed Burton testified that he saw the car in the vicinity of
the bank both on the morning and the afternoon of the robbery. See
discussion supra Part I.A.3.
A police operator testified that she received a call shortly
after midnight on December 22 (the morning after the robbery),
apparently from Carr, reporting his car stolen. Although there was
some confusion about the interpretation of her report,17 a
reasonable construction of her report was that Carr reported he had
last seen the car at his cousin’s apartment on December 5 but only
realized it had been stolen on December 21. Christopher Spooner
testified that Wilton Burton told him Carr’s stolen car report was
false. See discussion infra Part I.B.2. Although Carr’s
girlfriend Rita Gwen testified that the last time she had seen the
car was on December 9 or 10 parked in front of Christopher
Spooner’s house, she told the grand jury that she last saw the car
at Spooner’s as late as December 20.
2. Testimony of Christopher Spooner.
Christopher Spooner is Asia Morgan’s husband. Wilton Burton
regularly spent the night at their apartment. Spooner testified
that Wilton spent the night at their apartment on December 20-21
17
The Government called the police operator’s supervisor, who
aided in interpreting the stolen car report.
20
and that Wilton left with Carr on the morning of the 21st at 4:30
a.m. Spooner said Wilton and Quinton left in Quinton’s car, but he
did not actually see them getting into the car; he testified,
however, that Quinton’s car was parked in front of his apartment
building on the morning of December 21.
Spooner testified that he had overheard Wilton and Quinton,
talking “about bank robberies” about two weeks before the actual
robbery:
Q: Did they both say things in your presence that made
you understand they were talking about a bank robbery?
A: Yes.18
On cross examination, Spooner stated that Wilton and Carr were
“generally speaking” about bank robberies and that they did not
refer specifically to the December 21 robbery.19
Spooner said that Wilton had not told him that Carr was
involved in the bank robbery. Wilton, however, did tell Spooner
that they had used Carr’s vehicle in the robbery and had then
abandoned it at a car wash. Significantly, Wilton told Spooner
that Quinton Carr was going to call the police and report his car
stolen and that the report would be false.
3. Testimony of Rita Gwen.
18
Spooner also testified that Wilton tried to “bring guns” into
his apartment, but that Spooner asked him to remove them.
19
The court then made a finding that the Government had proved,
by a preponderance of the evidence, that there was a conspiracy
between Quinton Carr and Wilton Burton and that the statements made
by Wilton to Spooner were in furtherance of that conspiracy. See
Fed. R. Evid. 801(d)(2)(E). Carr’s counsel did not object to the
court’s ruling and does not raise it as error on appeal.
21
Rita Gwen, Carr’s girlfriend, testified that Carr spent the
night with her on December 20-21 and left very early on the morning
of December 21, the day of the robbery. She said he picked her up
around noon that day and that he was driving a cream-colored Lexus.
Other witnesses testified that Joshua Burton drove a cream-colored
Lexus. Carr took Gwen to pay bills and dropped her off around 1:00
p.m. She saw Carr again around 3:00 p.m., when he returned to her
place, still driving the Lexus, but this time accompanied by Wilton
Burton. Wilton apparently remained with her and Carr for the rest
of the day. Gwen also testified that Carr, at some point that
evening, reported his car stolen; she could not specify whether he
called around 7:00 that evening or between 10 and 11:00 p.m.20 See
also discussion supra Part I.B.1.
4. Conclusion
Our function in reviewing the sufficiency of the evidence is
not to determine “whether the trier of fact made the correct guilt
or innocence determination, but whether it made a rational decision
to convict or acquit.” United States v. Ornelas-Rodriguez, 12 F.3d
1339, 1344 (5th Cir. 1994), quoting Herrera v. Collins, 506 U.S.
390, 402 (1993). Here, the principle is apposite that “[w]hile
each piece of evidence, viewed independently[,] may have been
susceptible of innocent interpretation . . . the jury reasonably
could have concluded that when examined in the aggregate, the
evidence sufficed to establish . . . guilt.” Ornelas-Rodriguez, 12
20
The police operator’s report indicates that the call came in
shortly after midnight. See supra Part I.B.1.
22
F.3d at 1346. (emphasis added). With that in mind, we find that
the evidence was sufficient for a rational trier of fact to find
Quinton Carr guilty beyond a reasonable doubt of the crimes
charged.
On appeal Carr argues that the Government presented no
evidence that he agreed to participate in the robbery. He contends
the evidence shows he was “merely associated” with members of the
conspiracy and only “aware” of the criminal plan, not that he took
part in it. Carr also maintains that the jury could not infer from
the use of his car in the robbery, standing alone, that he allowed
the robbers to use it. Finally, Carr argues that his stolen car
report does not allow the inference that he was aiding and abetting
the robbery; even if the report was false, according to Carr, the
jury could, “at best,” infer that Carr was only trying to protect
himself when he discovered the car had been used in a robbery.
Carr would have us unduly curtail the “responsibility of the
trier of fact fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.” Herrera, 506 U.S. at 401-02, quoting
Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). We decline to
do so. A rational trier of fact could have found that the evidence
before it established far more than Carr’s “mere association” with
the members of the conspiracy.
The jury reasonably could have found that the use of Carr’s
vehicle in the robbery, coupled with his sham stolen car report,
established that Carr was associated with the robbery, that he
23
participated in it, and that he “sought by action to make the
venture succeed.” See 18 U.S.C. § 2. The jury could have found
this conclusion strengthened by Carr’s appearance, before and after
the robbery, in Joshua Burton’s Lexus. Certainly there is nothing
illegal in Carr driving Joshua’s car on the day of the robbery, or
in his leaving early that morning with Wilton Burton, or in his
showing up with Wilton soon after the robbery; but as coincidence
piles upon coincidence, a rational jury is entitled to find that
criminal activity may be afoot. See Ornelas-Rodriguez, 12 F.3d at
1346.
Finally, a rational jury could have found from Christopher
Spooner’s testimony that Carr and Wilton Burton were planning the
bank robbery in question a mere two weeks before the robbery took
place. While Spooner’s testimony was vague, the jury did not have
to rely solely on it to find that Carr participated in the
conspiracy. The jury could also have considered Carr’s familial
and social relationships with the other members of the conspiracy,
and, most importantly, the series of “coincidences” that strongly
connected Carr and his vehicle to the robbery itself. See
Williams-Hendricks, 805 F.2d at 503.
In sum, we find that a rational jury could have found beyond
a reasonable doubt that the Government carried its burden of proof
as to Carr.
II. SENTENCING GUIDELINES
Both Appellants argue that the district court erred in
applying a six-point increase to their offense levels pursuant to
24
U.S. Sentencing Guidelines Manual § 2B3.1(b)(2)(B)(1995) for
“otherwise using” a firearm. We review the district court’s
application and legal interpretation of the Sentencing Guidelines
de novo, United States v. Domino, 62 F.3d 716, 719 (5th Cir.
1995), and its findings of fact for clear error. United States v.
Hooker, 997 F.2d 67, 75 (5th Cir. 1993).
The Sentencing Guidelines define “otherwise used” as conduct
that “did not amount to the discharge of a firearm but was more
than brandishing, displaying, or possessing a firearm or other
dangerous weapon.” U.S.S.G. § 1B1.1, comment. (n.1(g)). We have
held that making threats while brandishing a firearm constitutes
“otherwise using” a firearm. United States v. DeLaRosa, 911 F.2d
985, 993 (5th Cir. 1990).
The “relevant conduct” to which we refer in determining Joshua
Burton’s Guideline range includes “all acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured,
or willfully caused by the defendant.” U.S.S.G. § 1B1.3(a)(1)(A).
Testimony at trial showed that the robbers waved guns around during
the robbery and that at least one of them threatened to kill bank
employees if they did not cooperate. The district court found the
evidence sufficient to show that Joshua was one of the robbers who
entered the bank and that, even if Joshua was not the robber who
threatened the bank tellers’ lives, such conduct was reasonably
foreseeable given the nature of the offense.21 We find that the
21
See U.S.S.G. § 1B1.3(a)(1)(B). That the conduct was
“reasonably foreseeable” and in furtherance of the robbery would
provide an alternate basis for attributing the conduct to Joshua,
25
district court’s findings of fact were not clearly erroneous.
Further, we find that the district court correctly interpreted the
Sentencing Guidelines in applying the six-level increase to Joshua
Burton’s offense level.22
Regarding Quinton Carr, the “relevant conduct” to which we
refer in determining his Guideline range is, “all reasonably
foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B).23
The district court found that, given the nature of bank robbery,
Carr could have “reasonably foreseen” that a weapon would be used
during the robbery. Carr argues that the district court’s finding
that he should have “reasonably foreseen” the use of a firearm was
clearly erroneous; he also argues that the district court
misapplied the Guidelines by relying on the nature of the offense
to determine “reasonable foreseeability”. We disagree.
The Commentary to § 1B1.3 of the Guidelines indicates that in
even if he were not the robber who made the threats. In any case,
the district court’s finding that Joshua did make threats during
the robbery is not clearly erroneous.
22
Joshua argues that his conduct warranted only a five-level
increase under U.S.S.G. § 2B3.1(b)(2)(C) for “brandishing.” The
Guidelines define “brandishing” to mean that “the weapon was
pointed or waved about, or displayed in a threatening manner.”
U.S.S.G. § 1B1.1, comment. (n.1(c)). The combination of threats
with the display of firearms, however, has been found sufficient to
constitute “otherwise using” a firearm. See DeLaRosa, 911 F.2d at
993.
23
We make a “reasonable foreseeability” determination regarding
Carr because in determining his Guideline range we must refer to
the conduct of others. Such a determination was not necessary for
Joshua since Joshua personally undertook the conduct that
determined his range. See U.S.S.G. § 1B1.3, comment. (n.2).
26
determining the scope of the “jointly undertaken criminal activity”
the court may consider “any explicit agreement or implicit
agreement fairly inferred from the conduct of the defendant and
others.” U.S.S.G. § 1B1.3, comment. (n.2). Further, the
Illustrations under § 1B1.3 posit a situation in which “Defendant
C” is the getaway driver in an armed bank robbery in which a teller
is injured:
Defendant C is accountable for the injury to the teller
under subsection (a)(1)(B) because the assault on the
teller was in furtherance of the jointly undertaken
criminal activity (the robbery) and was reasonably
foreseeable in connection with that criminal activity
(given the nature of the offense).
U.S.S.G. § 1B1.3, comment. (illustration (b)(1)). (emphasis
added). See also United States v. Guerrero, 5 F.3d 868, 871 n.7
(5th Cir. 1993).
We find that the district court reasonably inferred from the
evidence the scope of the criminal activity to which Carr agreed.
The district court’s determination that, given such criminal
activity, Carr should have reasonably foreseen the use of a firearm
was not clearly erroneous. Further, we find that the district
court’s reliance on the nature of the offense to determine whether
the use of a firearm was reasonably foreseeable was not a
misapplication of the Guidelines.
We therefore affirm the district court’s application of a six-
level increase to the offense levels of both Appellants.
III. CONCLUSION
For the foregoing reasons, we AFFIRM both Appellants’
convictions and sentences.
27