United States v. Fletcher

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 96-20383

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

SAM AUTRY FLETCHER, also known as Junior;
FRANK WATTS, JR., also known as Poppa;
BRODERICK WILSON, also known as Roy Arnolia Brock;
JAMES ADAMS WATTS,

Defendants-Appellants.

Appeals from the United States District Court
For the Southern District of Texas
August 25, 1997

Before DUHÉ and BARKSDALE, Circuit Judges, and COBB1, District
Judge.

DUHÉ, Circuit Judge:

Sam Autry Fletcher, Frank Watts, Jr., Broderick Wilson, and

James Adams Watts appeal their convictions for bank robbery and
conspiracy to commit bank robbery. We affirm the convictions and

sentences of Fletcher, Wilson, and Frank Watts. We also affirm

James Watts’s convictions, but we vacate his sentence for bank

robbery and remand for resentencing.

BACKGROUND

On April, 26, 1995, three masked and armed assailants robbed

1
District Judge of the Eastern District of Texas, sitting by
designation.
a Bank of America branch in Webster, Texas. Two of the robbers--

one described as very tall, the other as average height--approached

Christine Gober’s teller window and ordered her to surrender the

money in the cash drawer. After Gober complied, the two

perpetrators forced Gober and Denise Burse, the bank’s manager, to

open the vault. While the two robbers plundered the vault, the

third assailant remained by the teller windows, where he threatened

employee Penny Sondecker. The robbers eventually fled the bank

with approximately $174,900.

Unknown to the perpetrators, witnesses outside the bank

observed two masked men enter the bank and called the police from

a restaurant across the street. The witnesses remained on the

scene, and they eventually saw three men exit the bank, depart in

a dark blue sedan, and drive into the parking lot of another nearby

restaurant. Shortly thereafter, the witnesses noticed a silver-

gray van, driven by a woman, leave the lot and enter the freeway.

By this time, police officers had arrived at the bank, and the

witnesses provided them with a description of the van and

identified two digits, “11," on the van’s license plate. This

description was broadcast over police radio.

Larry Wittington, a Webster police officer, was driving on the

freeway when he heard the radio report of the bank robbery and the

description of the van. Shortly thereafter, he saw a silver van

enter the freeway. Officer Wittington soon caught up to the van,

which had the license plate “HCZ 11Y.” While driving next to the

van, he observed a black female in the driver’s seat and a black

2
male, dressed in a suit, in the front passenger’s seat. Although

Officer Wittington was unable to apprehend the van, he later

identified the passenger, from a photographic line-up, as James

Watts. The van was also traced to James Watts’s limousine service.

Because the assailants wore masks in the bank, none of the

bank’s employees actually observed their faces during the robbery.

Gober and Burse, however, both testified that, based upon the

robbers’ dialect and Burse’s observation of the tall robber’s skin

color around his eyes, they believed the perpetrators to be

African-American men. Further, Gober and Burse told the

investigating detectives that shortly before the robbery, a very

tall, young black man had requested change for a $100 bill from one

of the tellers. Sondecker also reported having observed a tall,

slender black man in the bank approximately two weeks prior to the

robbery. From a photographic display, Burse and Sondecker

identified Sam Autry Fletcher as the tall black man who had been in

the bank prior to the robbery, but Gober picked out a picture of

another individual from the photographic array.

At trial, the Government also presented the testimony of

Patrick McMillian, who was initially a suspect in the bank robbery.

McMillian lived with Frank Watts, and he knew the four defendants

from their participation in a rap music band that practiced at his

house. McMillian testified that around the end of March 1995,

three of the co-defendants (Frank Watts, James Watts, and Broderick

Wilson) and James Watts’s wife would frequently meet in Frank

Watts’s room with the door closed. On one evening, McMillian

3
eavesdropped outside the closed door and overhead James Watts

talking about a bank robbery. On another occasion in April,

McMillian observed all four defendants enter Frank Watts’s room,

and he overheard them discussing plans to steal a car to rob a bank

and to switch to a van after completing the robbery. Finally,

McMillian testified that on an afternoon in late April, the four

defendants arrived at the house in James Watts’s van and entered

the house carrying bags. At that time, Fletcher told McMillian

that he had just returned from a robbery with $30,000, and he

showed McMillian a stack of $20 bills, the denomination of the

money stolen from the bank.

After obtaining consent, FBI agents searched Frank Watts’s

mother’s house. In the house, they discovered a safe, which they

opened after obtaining a search warrant. Inside, they found 550

$20 bills. One of the bills matched a “bait bill” stolen from the

bank. The majority of the remaining bills fell within the series

of $20 bills that the Federal Reserve Bank had sent to the Bank of

America in Webster, Texas. The police found Frank Watts’s palm

print on one of the bills and Wilson’s thumb print on another.

In July 1995, a grand jury indicted Fletcher, Wilson, Frank

Watts, and James Watts for: (1) conspiracy to commit robbery, in

violation of 18 U.S.C. § 371; and (2) robbery by force, violence,

and intimidation, in violation of 18 U.S.C. §§ 2113(a) and 2. The

defendants were tried jointly before a jury, and each was convicted

on both counts. As to count 1, the district court sentenced each

of the defendants to 60 months of incarceration. As to count 2,

4
the district court sentenced James Watts to 262 months of

incarceration, Fletcher to 188 months of incarceration, and Wilson

and Watts to 151 months of incarceration. The sentences were to be

served concurrently.

DISCUSSION

I. CONSTRUCTIVE AMENDMENT OF THE INDICTMENT

Count two of the indictment charged the Appellants with bank

robbery, in violation of 18 U.S.C. § 2113(a),2 and the district

court instructed the jury as to the elements of that offense.

After doing so, however, the court also instructed the jury as to

the elements of a § 2113(d) bank robbery offense.3 The instruction

read as follows:

Title 18, United States Code, Section 2113(d) makes it a
more serious offense for anyone while in the process of
violating subsection (a) of the statute to assault and put in
jeopardy the life of any person by the use of a dangerous
weapon or device.

In order to establish the offense as charged in Count 2
of the indictment, the government must prove beyond a
reasonable doubt each of the three specific acts I mentioned

2
Section 2113(a) states, in pertinent part:
Whoever, by force and violence, or by intimidation, takes, or
attempts to take, from the person or presence of another any
property or money or any other thing of value belonging to, or
in the care, custody, control, management, or possession of, any
bank, credit union, or any savings and loan association . . .
Shall be fined not more than $5,000 or imprisoned not more than
twenty years, or both.
18 U.S.C. § 2113(a).
3
Section 2113(d) states, in full:
Whoever, in committing, or in attempting to commit, any offense
defined in subsections (a) and (b) of this section, assaults any
person, or puts in jeopardy the life of any person by the use of
a dangerous weapon or device, shall be fined not more than
$10,000 or imprisoned not more than twenty-five years, or both.
18 U.S.C. § 2113(d).

5
 a moment ago in discussing Count 2, and must also prove beyond
a reasonable doubt a fourth specific fact, namely:

That the defendant assaulted and put in jeopardy the life
of a person by the use of a dangerous weapon or device
while engaged in taking the money, as charged.

It is uncontroverted that the indictment charged the Appellants

with violating only § 2113(a)--and not § 2113(d). Thus, we

conclude that the district court erred in giving the instruction

appropriate for § 2113(d), and that in so doing, it constructively

amended the indictment. See United States v. Slovacek, 867 F.2d

842, 847 (5th Cir. 1989) (stating that constructive amendment of

the indictment occurs if “the court, through its instructions and

facts it permits into evidence, allows proof of an essential

element of a crime on an alternative basis permitted by the statute

but not charged in the indictment”). The more difficult question

that we face, however, is whether the error requires reversal of

the Appellants’ convictions. We conclude that it does not.

Because the Appellants failed to object at trial to the

erroneous jury instruction, we may address the claim, pursuant to

Fed. R. Crim. P. 52(b), only if (1) there was an error, (2) the

error was plain, and (3) the plain error affected the substantial

rights of the defendant. See United States v. Olano, 507 U.S. 725,

731-34 (1993); United States v. Calverley, 37 F.3d 160, 162-64 (5th

Cir. 1994). If all three conditions are satisfied, we may exercise

our discretion to correct the error if it “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.”

Olano, 507 U.S. at 736 (internal quotation marks omitted;

alteration in original).

6
 The seminal case governing constructive amendment of an

indictment is Stirone v. United States, 361 U.S. 212 (1960). In

Stirone, the Supreme Court reversed a criminal conviction because

the district court’s jury instructions constructively amended the

indictment. The Court stated:

While there was a variance in the sense of a variation between
pleading and proof, that variation here destroyed the
defendant’s substantial right to be tried only on charges
presented in an indictment returned by a grand jury.
Deprivation of such a basic right is far too serious to be
treated as nothing more than a variance and then dismissed as
harmless error.

Id. at 217. Following Stirone, we have emphasized that

constructive amendment of the indictment through erroneous jury

instructions requires per se reversal of the defendant’s

convictions. See, e.g., United States v. Salvatore, 110 F.3d 1131,

1145 (5th Cir. 1997); United States v. Harrill, 877 F.2d 341, 344

(5th Cir. 1989); United States v. Ylda, 653 F.2d 912, 913 (5th Cir.

1981). Indeed, we have held that reversal is “automatic” even when

a defendant fails to object to the erroneous instructions, thus

subjecting his appeal to plain error review. See United States v.

Mize, 756 F.2d 353, 355-56 (5th Cir. 1985).

Both Stirone and the Fifth Circuit case law interpreting it,

(except Salvatore in which no constructive amendment was found),

predate the Supreme Court’s opinion in Olano, which set forth the

current standard governing plain error. Following Olano, this

circuit, in United States v. Reyes, 102 F.3d 1361, 1364-66 (5th

Cir. 1996), concluded that we have discretion to correct a Stirone

error--an error that, prior to Olano, would have required reversal

7
per se.4 Further, in Reyes, we declined to exercise our

discretion to correct an error that resulted in a constructive

amendment of the indictment. See id.

For a number of reasons, we choose not to correct the error in

this case. First, we are confident that the Appellants were in no

way prejudiced by the erroneous instruction. The court instructed

the jury as to the elements of § 2113(d), which is a greater degree

of bank robbery than the indicted offense of § 2113(a). In fact,

the elements of § 2113(d) include all of the elements of § 2113(a),

plus the additional element of assault. Therefore, by instructing

the jury as to § 2113(d), the court actually imposed a higher

standard of proof on the Government than that required by the

indictment. Because the jury found that the Government established

the elements of § 2113(d) bank robbery, it must necessarily have

found that the Government proved the elements of § 2113(a) bank

robbery. Thus, the erroneous instruction did not impair the

“substantial rights” of the Appellants because it could not have

affected the outcome of the trial. See Olano, 507 U.S. at 734.

Moreover, to hold that a constructive amendment of the

indictment requires per se reversal even under Olano would

4
The Appellants asserts that even under Olano, at least one
circuit court has held that a constructive amendment must be
corrected on appeal. See United States v. Floresca, 38 F.3d 706,
714 (4th Cir. 1994) (en banc) (“In sum, we hold that, under
Stirone, constructive amendments of a federal indictment are error
per se, and, under Olano, must be corrected on appeal even when not
preserved by objection.); see also United States v. Lawton, 995
F.2d 290, 294-95 (D.C. Cir. 1993) (exercising its discretion under
Olano to correct a Stirone error not raised at trial).
Notwithstanding Floresca and Lawton, we are bound by Reyes, a prior
panel decision of the Fifth Circuit.

8
encourage the kind of sandbagging that the plain error standard is

designed in part to prevent. See Reyes, 102 F.3d at 1365. Were we

to so hold, no rational defense counsel would ever object to the

erroneous instructions in a prosecution similar to this one: not

only would the erroneous instruction increase the likelihood of

acquittal,5 but defense counsel would also know that a conviction

would necessarily be reversed on appeal. See id. at 1365-66. Such

a situation does not accord with justice or common sense.6

Finally, we recognize that the district court sentenced James

Watts to 262 months of imprisonment as to count two--a punishment

commensurate with conviction under § 2113(d). But although the

5
Indeed, this situation is more stark than that in Reyes,
where we noted that the defendant faced identical odds of being
convicted under either the correct or erroneous charge. See Reyes,
102 F.2d at 1365.
6
We note, by way of caution, that we do not seek to minimize
the import of numerous appellate decisions that have repeatedly
recognized the seriousness of a trial error that results in a
constructive amendment of the indictment. Those decisions have
emphasized that a constructive amendment of the indictment is so
pernicious as to require reversal per se because, in the typical
case, the constructive amendment broadens the indictment such that
a defendant might be convicted for a crime not charged therein.
See, e.g., Stirone, 361 U.S. at 216 (noting that only the grand
jury may broaden an indictment); Floresca, 38 F.3d at 710, 711 (“A
constructive amendment to an indictment occurs when . . . the court
. . . broadens the possible bases for conviction beyond those
presented by the grand jury. . . . We stress that it is the
broadening itself that is important--nothing more.”); Lawton, 995
F.2d at 290 (noting that the jury instructions expanded the
indictment); Harrill, 877 F.2d at 344 (stating that “a conviction
must be reversed if the court’s instructions to the jury amend the
indictment to enlarge the offense”). In this case, however, the
erroneous instruction did not broaden or expand the indictment;
rather, it narrowed the indictment by requiring the Government to
prove the additional assault element of § 2113(d). Given that the
jury convicted the Appellants of § 2113(d), there is simply no
doubt that they would have convicted under the lesser standard of
§ 2113(a).

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court instructed the jury as to the elements of § 2113(d), it is

undisputed that Watts was indicted--and can only be convicted--for

violating § 2113(a). Indeed, the court’s judgment reflects this

fact. Section 2113(a) carries a statutory maximum penalty of 20

years (240 months) imprisonment. Because Watts’s sentence exceeds

the statutory maximum, we must vacate his sentence and remand for

resentencing.

II. PHOTOGRAPHIC IDENTIFICATION

Appellants James Watts and Sam Autry Fletcher assert that

their Fifth Amendment rights were violated by the introduction of

impermissibly suggestive and inherently unreliable photographic

identification evidence. The question whether identification

evidence and the fruits therefrom are admissible at trial is a

mixed question of law and fact. See United States v. Sanchez, 988

F.2d 1384, 1389 (5th Cir. 1993). Such mixed questions are subject

to de novo review. See Buser by Buser v. Corpus Christi Indep.

Sch. Dist., 51 F.3d 490, 492 (5th Cir. 1995). However, we review

the district court’s underlying factual findings for clear error.

See United States v. Diecidue, 603 F.2d 535, 565 (5th Cir. 1979).

A conviction based upon an eyewitness identification at trial

following a pretrial photographic identification must be set aside

“only if the photographic identification procedure was so

impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification.” Simmons v. United

States, 390 U.S. 377, 384 (1968); accord Herrera v. Collins, 904

F.2d 944, 946 (5th Cir. 1990). The admissibility of identification

10
evidence is governed by a consideration of two factors. See

Herrera, 904 F.2d at 946. First, the court must determine whether

the photographic array was impermissibly suggestive. See Sanchez,

988 F.2d at 1389. If it was, then the court must consider whether,

based upon the totality of the circumstances, “the display posed a

‘very substantial likelihood of irreparable misidentification.’”

Id. (quoting Simmons, 390 U.S. at 384); see also Manson v.

Brathwaite, 432 U.S. 98, 114 (1977) (stating that the gravamen of

this determination is reliability). In examining the totality of

the circumstances regarding reliability, the court should

specifically consider:

the opportunity of the witness to view the criminal at the
time of the crime, the witness’ degree of attention, the
accuracy of the witness’ prior description of the criminal,
the level of certainty demonstrated by the witness at the
confrontation, and the length of time between the crime and
the confrontation.

Neil v. Biggers, 409 U.S. 188, 199 (1972).

A. James Watts

Officer Larry Wittington, during his pursuit of the silver

getaway van on April 26, 1995, observed a black male wearing a suit

and tie sitting in the passenger seat. Three days later, Officer

Wittington was shown a display of six photographs. He selected a

photograph of James Watts as the person who was riding in the

passenger seat of the van. On appeal, Watts contends that the

district court’s admission of the photographic identification

evidence was constitutionally infirm because: (1) his picture was

the only one in the array in which the subject was dressed in a

suit and tie; and (2) his picture was positioned in the center

11
position of the top row. We conclude otherwise.

The district court, faced with a similar objection, determined

that although the photograph of Watts was the only one in which the

subject was wearing a suit and tie, the photographic display was

not impermissibly suggestive because “in all other relevant

respects, the individuals shown on the photo spread are similar in

apparent size, all have mustaches, all have approximately the same

kind of hair.” Watts does not dispute the district court’s factual

finding that the physical appearance--aside from the clothing--of

the individuals in the six photos was very similar, and we

therefore accept this fact as true. Accordingly, we do not believe

that the array was overly suggestive merely because the defendant

was the only individual pictured wearing a suit and tie. Further,

it is irrelevant that Watts’s photograph was located in the top

center position of the display. We therefore hold that the court

did not err in allowing the identification testimony into

evidence.7

B. Sam Autry Fletcher

Three bank employees, Christine Gober, Denise Burse, and Penny

Sondecker, informed the investigating authorities that shortly

before the robbery, they had observed a very tall black man in the

bank. Each of these employees was later shown a photographic

display containing 26 pictures of various black men. Of the 26

photos, only five gave any indication as to the height of the

7
Because we hold that the photographic display was not overly
suggestive, we need not reach the second part of the analysis,
i.e., whether the identification was unreliable.

12
individual depicted therein: one photo, that of Fletcher, pictured

a person who was 6'7" tall; two photos depicted individuals who

were between 6'1" and 6'2" tall; and two photos portrayed

individuals who were well under 6' tall. Two of the employees,

Burse and Sondecker, identified Sam Autry Fletcher as the man they

had previously seen in the bank, while Gober identified another

individual in the photo spread. The district court denied

Fletcher’s motion to suppress the identification testimony. On

appeal, Fletcher asserts that the photographic display was

impermissibly suggestive and unreliable because it emphasized his

unusual height. Again, we disagree.

The photographic array contained 26 photos of African-American

males of about the same age. Only five of the photographs depicted

the height of the individual pictured therein, and of the five

photos, three portrayed men over 6 feet tall. While it is true

that the photograph of Fletcher was the only one that depicted a

subject who was well over 6 feet tall, there were 21 other

photographs that provided no indication as to the height of the

individuals. Cf. United States v. Credit, 95 F.3d 362, 364 (5th

Cir. 1996) (admitting photographic identification evidence even

though the defendant was the only heavy-set man with a round face

in a photographic display of six men of similar age and skin tone),

cert. denied, 117 S. Ct. 1008 (1997).

Even assuming, arguendo, that the photographic display was

impermissibly suggestive, we do not believe that the witnesses’

identification was unreliable. Of the five Biggers factors, only

13
one, the level of certainty of the witness, weighs in Fletcher’s

favor, as both Sondecker and Burse offered only “tentative”

identifications.8 The other four factors, however, favor

admissibility. Burse especially had ample opportunity to view

Fletcher when he cased the bank on the morning of the robbery.

Moreover, both Burse and Sondecker testified that their attention

was drawn to Fletcher because he was a very tall black man that

they had not previously observed in the bank; in fact, Sondecker

described him as “striking.” Further, the witnesses’ prior

description of Fletcher was accurate, as he is indeed a very tall

black man. Finally, both Burse and Sondecker viewed the

photographic display within a few weeks of their initial sighting

of Fletcher. Thus, we conclude that even if the photographic

display was impermissibly suggestive, it did not pose a substantial

likelihood of misidentification.

III. SUFFICIENCY OF THE EVIDENCE

James Watts and Broderick Wilson contend that the evidence was

insufficient to sustain their convictions. A criminal conviction

must be upheld if any rational jury could have found that the

evidence established the essential elements of the crimes charged

beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,

319 (1979); United States v. Ismoila, 100 F.3d 380, 387 (5th Cir.

1996), cert. denied, 117 S. Ct. 1712, and cert. denied, 117 S. Ct.

8
Even this, however, only marginally favors inadmissibility,
for Sondecker herself testified that when she looked at the
photographic array, she was sure that the photograph she had
selected was that of Fletcher.

14
1858 (1997). We view the evidence, including all reasonable

inferences drawn therefrom and all credibility determinations, in

the light most favorable to the jury verdict. See United States v.

Resio-Trejo, 45 F.3d 907, 910 (5th Cir. 1995).

To sustain a conspiracy conviction 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. See

United States v. Gray, 96 F.3d 769, 772-73 (5th Cir. 1996), cert.

denied, 117 S. Ct. 1275 (1997). To prove the underlying offense of

bank robbery, in violation of 18 U.S.C. § 2113(a), the Government

must establish: (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 of, (7) a bank.

See United States v. McCarty, 36 F.3d 1349, 1357 (5th Cir. 1994).

Viewed in the light most favorable to the verdict, the

evidence is sufficient to sustain the convictions of both James

Watts and Broderick Wilson. Specifically, the Government presented

the following: McMillian’s testimony that on two occasions he

heard James Watts and Wilson planning the bank robbery in Frank

Watts’s room; McMillian’s testimony that he observed the four

defendants return to his house in the silver van carrying a number

of bags, and his testimony that Fletcher, on the same date,

admitted to participating in a robbery; Officer Wittington’s

identification of James Watts as the passenger in the van that fled

15
the scene of the crime; Wilson’s fingerprint on one of the $20

bills seized from Frank Watts’s safe; evidence establishing that

the van fleeing the bank belonged to James Watts’s limousine

business; testimony demonstrating that although James Watts and

Wilson had no visible means of support before the robbery, they

spent substantial sums of money after the bank robbery.

Much of the Appellants’ argument centers on attacking the

credibility of Wittington and McMillian. We must, however, draw

all credibility determinations in the light most favorable to the

verdict. See Resio-Trejo, 45 F.3d at 910. Doing so, we conclude

that the evidence is sufficient to sustain the convictions of James

Watts and Broderick Wilson.

IV. PROSECUTORIAL STATEMENTS

A. During Closing Argument

Fletcher insists that his conviction must be reversed because

of the prosecutor’s improper comments during closing argument.

Specifically, he contends that during closing argument, the

prosecutor referred to the following inculpatory “facts” that were

never introduced into evidence: that Fletcher was homeless around

the time of the bank robbery;9 that Fletcher lied by telling an FBI

agent that he had never been to Webster, Texas; and that Denise

Burse made an in-court identification of Fletcher.

We will reverse a conviction for improper prosecutorial

remarks only where the defendant’s right to a fair trial is

substantially affected. See United States v. Andrews, 22 F.3d

9
This statement is the only one to which Fletcher objected.

16
1328, 1341 (5th Cir. 1994). The critical question that we must

resolve is whether the prosecutor’s remarks “cast serious doubt on

the correctness of the jury verdict.” Id. The relevant factors to

consider are: (1) the magnitude of the prejudicial effect, (2) the

efficacy of any cautionary instruction, and (3) the strength of the

evidence supporting the defendant’s guilt. See id. Because

Fletcher objected to only one of the allegedly improper comments,

he bears an even greater burden; we will reverse only upon a

showing of plain error. See id. In such a situation, Fletcher

must show that the plain error jeopardizes his “substantial rights”

and “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” See Calverley, 37 F.3d at 164

(internal quotation marks omitted). This he has not done.

The prejudice resulting from the prosecutor’s comments is

slight. The first remark--that Fletcher was homeless--is

inconsequential and was made only in passing. The prosecutor’s

second statement--that Fletcher lied by asserting that he had never

been to Webster, Texas--is only slightly prejudicial. The

important fact is not that Fletcher lied, but that witnesses placed

him at the Bank of America in Webster, Texas. The prejudice

resulting from this remark is far from enough to warrant reversal

under the plain error standard. Finally, the prejudicial effect of

the third remark--that Burse identified Fletcher in court--is

slight because she did identify him in a photo array and because

Penny Sondecker identified Fletcher in court.

The other two factors outlined in Andrews also support

17
affirmance. The court never had the opportunity to caution the

jury as to two of the statements because none of the defendants

objected to the prosecutor’s statements. Finally, as we outlined

in Part III of this opinion, the evidence linking Fletcher to the

crime is substantial. Thus, we decline to reverse Fletcher’s

conviction on this ground.

B. During Direct Examination

Fletcher also contends that the district court erred by

refusing to give a curative instruction after the prosecutor asked

the following question of FBI Agent Eric Johnson: “When you talked

to . . . Sam Fletcher, do you recall him mentioning anything about

robbing banks?” Fletcher insists that this question was extremely

prejudicial because it suggested to the jurors that Fletcher had

admitted to robbing a bank.

We do not think that the effect of this question is nearly as

prejudicial as Fletcher maintains. Before Agent Johnson could

respond to the query, Fletcher’s counsel objected, and the district

court instructed the prosecutor to move to another area of inquiry.

Later, outside the presence of the jury, the court determined that

Fletcher’s alleged admission was inadmissible under Fed. R. Evid.

404(b). However, he refused to give a curative instruction to the

jury, stating:

Well, the jury . . . has already been told and will be told
again at the end of the case [that] . . . what the attorneys
say is not evidence and to disregard questions when objections
are raised and not to speculate on what the answers would have
been. At this stage I don’t think [a curative instruction]
would be appropriate. I’m having a hard time thinking of how
I could make the point to the jury without reminding them of
what the question was, which I think would defeat the purpose

18
 that you have suggested.

We fully agree with the court’s reasoning. Juries are presumed to

follow the instructions of the court. See Zafiro v. United States,

506 U.S. 534, 540-41 (1993).

V. SEVERANCE

Wilson contends that the district court erred by denying his

motion to sever, thereby violating his Sixth Amendment right to

confrontation as explained by Bruton v. United States, 391 U.S. 123

(1968). We review Bruton issues for abuse of discretion. See

United States v. Beaumont, 972 F.2d 91, 95 (5th Cir. 1992).

The Fifth Circuit has held that, under Bruton, a defendant’s

Sixth Amendment right to confrontation is violated when “‘(1)

several co-defendants are tried jointly, (2) one defendant’s

extrajudicial statement is used to implicate another defendant in

the crime, and (3) the confessor does not take the stand and is

thus not subject to cross-examination.’” United States v. Jobe,

101 F.3d 1046, 1066 (5th Cir. 1996) (quoting United States v.

Restrepo, 994 F.2d 173, 186 (5th Cir. 1993)), petition for cert.

filed, 66 U.S.L.W. 3016 (Jun. 25, 1997). A defendant’s right to

confrontation is violated, however, only when the co-defendant’s

statement directly incriminates the other defendants without

reference to other admissible evidence. See id. The Supreme Court

has stated, “We hold that the Confrontation Clause is not violated

by the admission of a nontestifying codefendant’s confession with

a proper limiting instruction when, as here, the confession is

redacted to eliminate not only the defendant’s name, but any

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reference to his or her existence.” Richardson v. Marsh, 481 U.S.

200, 211 (1987).

In this case, Wilson claims that his Sixth Amendment rights

were violated by the admission of Patrick McMillian’s testimony

regarding the confession of co-defendant Fletcher. The Government,

however, redacted McMillian’s statement, and McMillian testified

that Fletcher admitted only that “he [i.e., Fletcher] just came

back from a bank robbery.” On appeal, Wilson insists that taken in

context--Fletcher made the confession shortly after arriving at

McMillian’s house in the silver van with the other defendants--the

statement directly implicates him in the crime. We disagree.

On its face, the statement itself--that Fletcher had just

committed a bank robbery--certainly does not directly implicate

Wilson. It becomes incriminating only by reference to other

testimony, which is permissible under Richardson. Moreover, as

required by Richardson, the district court repeatedly instructed

the jury that Fletcher’s statement could be used against Fletcher

only, and could not be considered as to any other defendant.10 We

therefore conclude that the admission of McMillian’s statement

regarding Fletcher’s confession did not violate Wilson’s rights

under the Confrontation Clause.

VI. THE FIREARM ENHANCEMENT

10
Wilson argues that the prejudice was magnified because the
prosecutor, during closing argument, mentioned that Fletcher told
McMillian, “we just did it--I just did it.” As the quoted phrase
shows, however, the prosecutor immediately corrected himself as to
Fletcher’s confession, and he later emphasized that Fletcher said
only that “I just did it.” Furthermore, the district court
instructed the jury to disregard the prosecutor’s statement.

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 Finally, the Appellants contend that the district court erred

by enhancing their sentences pursuant to U.S.S.G. § 2B3.1(b)(2)(B),

which mandates a six-level enhancement when a firearm is “otherwise

used”--but not discharged--during the commission of a robbery. The

Appellants maintain that the court should have enhanced their

sentences by only five levels, pursuant to § 2B3.1(b)(2)(C),

because they merely “brandished, displayed, or possessed” a weapon

during a robbery.

The 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 app. note 1(g). In United States v.

Gonzales, 40 F.3d 735, 738-40 (5th Cir. 1994), we stated that the

“otherwise-used” enhancement includes a situation where a defendant

both points a weapon at a victim and also explicitly threatens the

victim. Because the defendants both pointed their weapons at the

bank employees and explicitly threatened them, we conclude that the

district court, pursuant to Gonzales, properly enhanced their

sentences by six levels.11

CONCLUSION

For the foregoing reasons, we affirm the convictions and

sentences of Frank Watts, Sam Autry Fletcher, and Broderick Wilson,

and we affirm the convictions of James Watts, but vacate his

sentence as to count two and remand for resentencing.

AFFIRMED in part; VACATED and REMANDED in part.

11
One panel of the Fifth Circuit may not overrule the decision
of another panel. See United States v. Storm, 36 F.3d 1289, 1297
(5th Cir. 1994).

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