United States v. Hickman

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40237

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MASONTAE HICKMAN; MARKUS D. CHOPANE; JYI R. McCRAY;
EDWIN T. LIMBRICK; EDMOND GASAWAY,

Defendants-Appellants.

Appeals from the United States District Court
for the Eastern District of Texas
September 1, 1998

Before HIGGINBOTHAM, PARKER and DENNIS, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:

Appellants Masontae Hickman, Edwin T. Limbrick, Jyi R. McCray,

Marcus D. Chopane, and Edmond Gasaway appeal their convictions and

sentences for conspiracy to obstruct commerce, obstruction of

commerce in violation of the Hobbs Act and related firearm counts.

We affirm all convictions, and affirm the sentences imposed against

Hickman, Limbrick, McCray and Gasaway. We vacate Chopane’s

1
sentence and remand his case to the district court for

resentencing.

FACTS AND PROCEEDINGS

This case involved the federal prosecution of five individuals

for a series of robberies in a three-county area in East Texas in

1994.1 A sixth individual, Roderick Mouton, testified for the

Government in return for a plea bargain that allowed him to plead

guilty to misprision of a felony.

On March 15, 1994, two men entered the Subway Sandwich Shop in

Beaumont, Texas just before closing. The men, one armed with a

shotgun and one with a handgun, demanded money from Subway employee

Charles Mitchell. After receiving $230, they fled. On May 4,

1994, Mitchell picked defendant Chopane out of a photo lineup as

the robber armed with the handgun. At a subsequent photo lineup,

two years later, on May 15, 1996, Mitchell identified defendant

McCray as the robber armed with the shotgun. McCray and Chopane

were convicted for this crime.

On April 1, 1994, a robbery occurred at the Church’s Chicken

restaurant in Jasper, Texas. That night, Heather Goss, a Church’s

employee, had just closed the restaurant and was walking to her car

when she was accosted by two men, who forced her and a co-worker

back inside. One of the men was armed with a revolver. The two

men ordered Goss to open the store’s safe, and they absconded with

1
Appendix A sets out the specific charges, jury verdicts,
dates of charged offenses and sentences in chart form.

2
$1,848. Several unfired .32 caliber bullets were later recovered

at the scene, which had apparently fallen out of the robber’s

handgun. Defendant Hickman later admitted to police his

involvement in this robbery. A .32 caliber pistol bearing

Hickman’s fingerprints was recovered at the scene of a later

robbery on June 1, 1994. The pistol was missing its center pin, a

defect that would allow ammunition to drop out of it. At trial,

Hickman was convicted for this crime.

During the evening of April 20, 1994, Oscar Hennington, an

employee of Catfish Cabin restaurant in Jasper, Texas, was outside

closing up when he was accosted by a man who put a gun to his head.

Hennington saw three other robbers crouched down a short distance

away, armed with handguns and a sawed-off shotgun. LaDonna Scott,

another Catfish Cabin employee, walked out of the restaurant and

laughed off the robbery as a joke. The robbers responded by

discharging their firearms, causing Scott and Hennington to run to

their vehicles which were parked nearby. Hennington, Scott, and

Sadie Crumedy, another employee, fled the restaurant in their cars.

On the side of the highway close to the Catfish Cabin, Hennington

saw a white vehicle like the car owned by defendant Limbrick’s

sister. Scott, who was Limbrick’s sister-in-law, testified at

trial that one of the robbers sounded like Limbrick. Hickman later

confessed to police to participating in a robbery of “Catfish King”

in Jasper, although the only catfish restaurant in Jasper is

Catfish Cabin. Hickman stated that the robbers left after

3
receiving no money because the victims “wouldn’t act right.”

Hickman and Limbrick were convicted of this crime.

On May 2, 1994, at approximately 9:45 p.m., two men broke into

the Peking Restaurant in Beaumont, Texas. During the course of the

robbery, the men shot and wounded David Wu and shot and killed Xiao

Wu. Hickman later confessed to participation in this crime.

Limbrick confessed to driving the getaway car and disassembling the

shotgun and placing it in a sack to be thrown away. Gasaway

admitted throwing the sack in a river, not knowing what was inside

but later recanted his statement. Hickman and Limbrick were

convicted for this crime.

At 1:30 a.m. on the morning of May 17, 1994, Richard Roark,

the manager of an AutoZone store, was stocking auto parts along

with some other employees. Two men armed with guns entered the

store and demanded that Roark open the safe. Roark did so, and the

men made off with approximately $1300 or $1400. While fleeing from

the store, one of the robbers dropped a cash register tray. After

Roark picked up the tray, one of the robbers shot at him. Police

later recovered a .380 caliber shell casing, which they determined

was fired from the same pistol recovered from the subsequent Dairy

Queen robbery. Hickman confessed to participation in the AutoZone

robbery. Hickman was convicted for this crime.

On May 21, 1994, at approximately 1:00 a.m., two men forced

their way into a Church’s Chicken on Washington Boulevard in

Beaumont, Texas. One man was armed with a gun, the other with a

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knife. The men demanded that the employees open the safe, and they

escaped with $1,160. Hickman later admitted to robbing a Church’s

Chicken on “Fourth Street” in Beaumont. Fourth Street is located

one block from Washington Boulevard. At trial, Hickman was

convicted of this robbery.

At approximately 11:30 p.m. on the night of June 1, 1994,

Virginia Willis locked up for the night at the Dairy Queen in

Silsbee, Texas, where she was the manager. She walked towards her

car in the parking lot carrying the day’s proceeds in a bank bag,

totaling $1100 in cash and $200 in checks. Before she reached her

car, she was accosted by a gunman. She dropped the bag and ran

back to the restaurant, but she was pushed into some bushes by a

second robber. One of her assailants picked up the bag, put a gun

to Willis’s face, and demanded to be let inside the restaurant.

Willis threw down her keys. As the men left to enter the

restaurant, Willis ran to a neighboring convenience store. On her

way, Willis saw a maroon vehicle, later identified as Gasaway’s

Mazda. Roger Smart and a friend were at the convenience store when

they heard Willis screaming that she had been robbed. Smart and

his friend then got in their pickup truck and followed the maroon

vehicle as it sped away from the restaurant. During the pursuit,

individuals in the maroon car threw clothing and other objects out

its windows. The maroon car later turned into a sand pit. Smart

drove past the entrance and down the road to turn around. Smart

drove back towards the entrance to the sand pit and observed the

5
maroon car pull out to get back on the highway. Smart again

followed the maroon car at speeds exceeding 95 m.p.h., until his

engine exploded. In the vicinity of the Dairy Queen, a Silsbee

police officer later recovered various items of clothing, along

with an envelope with the name “Roderick Mouton” on it. Custer

then retrieved two handguns from the sand pit -- a .380

semiautomatic and a .32 caliber revolver. The .32 revolver was

missing its center pin and fingerprints on the gun were identified

as Hickman’s. Hickman, McCray and Gasaway were convicted for the

Dairy Queen robbery.

On June 21, 1994, four men approached some employees standing

outside Hardee’s Restaurant in Beaumont, Texas. The men forced the

employees back into the restaurant at gunpoint, and they ordered

Clifford Taylor, the manager, to open the safe. The robbers took

approximately $2000 from the safe and fled. Police officers who

were called to the scene discovered Hickman and Mouton hiding 250

yards away. McCray made it back to the Mouton family home, where

he was living. McCray told Diane Mouton, Roderick Mouton’s mother,

about the robbery, and he retrieved the proceeds of the crime and

gave them to her. Diane Mouton turned the money over to the

police. Hickman, McCray and Gasaway were convicted of this

robbery.

While detained at the Jefferson County Jail, Hickman admitted

to participating in the Hardee’s, Dairy Queen, Peking Restaurant,

Church’s Chicken, AutoZone and “Catfish King” robberies. On June

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23, 1994, Limbrick admitted to police that he drove the getaway car

from the Peking Restaurant robbery and that he disassembled the

shotgun used in that crime and placed it in a bag. Limbrick also

confessed to driving the getaway car in three robberies preceding

the Peking Restaurant.

On October 18, 1996, a federal grand jury returned a third

superseding indictment against Hickman, Limbrick, McCray, Chopane,

and Gasaway. Limbrick, McCray, Chopane and Gasaway were charged in

count one with conspiracy to obstruct interstate commerce by

robbery, in violation of 18 U.S.C. § 1951 (the Hobbs Act). Each of

the five defendants were then charged individually with various

substantive Hobbs Act and firearm-use offenses.

Trial commenced on October 22, 1996. Mouton testified against

the defendants as the Government’s witness in return for a plea

bargain. The jury returned guilty verdicts against the defendants

on every count in the indictment, with the exception that Limbrick

was acquitted of two of his four Hobbs Act charges and two of his

four firearm charges.

In February and March of 1997, the district court sentenced

the defendants. Chopane received a total sentence of 111 months of

imprisonment, Gasaway received 387 months of imprisonment, McCray

received 627 months, Limbrick received 1020 months of imprisonment

and Hickman received 3180 months of imprisonment. In addition, the

district court imposed terms of supervised release, special

assessment and orders of restitution which are not challenged on

7
appeal. All defendants timely appealed from their convictions.

ANALYSIS

I. FAILURE TO SEQUESTER CASE AGENTS

During the trial, the district court permitted Detective

Clifton Orr of the Beaumont Police Department to sit at counsel’s

table along with the FBI case agent, Ed Keeler. Because both

Keeler and Orr were to testify, the defendants objected, invoking

Rule 615 of the Federal Rules of Evidence (referred to as “the

Rule”). Without making any specific finding, the district court

overruled the defendants’ objections. On Appellant Limbrick’s

request, the district court instructed the two case agents not to

discuss the case with the other Government witnesses. However,

they were not precluded from discussing the case with each other.

Rule 615 provides:

Exclusion of Witnesses

At the request of a party the court shall order
witnesses excluded so that they cannot hear the testimony
of other witnesses, and it may make the order of its own
motion. This rule does not authorize exclusion of (1) a
party who is a natural person, or (2) an officer or
employee of a party which is not a natural person
designated as its representative by its attorney, or (3)
a person whose presence is shown by a party to be
essential to the presentation of the party’s cause.

We review a district court’s compliance with Rule 615 for abuse

of discretion, and we will only reverse if the appellants can

demonstrate prejudice. See United States v. Payan, 992 F.2d 1387,

1394 (5th Cir. 1993).

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 On appeal, all appellants complain that it was improper for

the trial court to excuse Orr and Keeler from sequestration and

allow them both to be present in the court room during trial and

hear the testimony of witnesses including each other’s testimony.

Appellants rely on United States v. Farnham, 791 F.2d 331 (4th Cir.

1986), in which the Fourth Circuit reversed convictions because two

case agents were excused from the Rule, reasoning that the dictates

of Rule 615 are mandatory, and not susceptible to trial court

discretion or to a strict prejudice requirement. See id. at 335.

We find Farnham neither controlling nor persuasive, especially in

light of its explicit rejection of the Fifth Circuit’s approach to

Rule 615. See id. at 335 (“Ignoring the mandatory (‘shall’)

language of the rule, the Fifth Circuit invoked an abuse of

discretion standard to uphold a trial court’s refusal to exclude

one of two . . . case agents from the proceedings . . . . United

States v. Alvarado, 647 F.2d 537, 540 (5th Cir. 1981).”).

This court has never directly decided whether the Government

can designate more than one individual as its representative under

Rule 615(2). See United States v. Payan, 992 F.2d 1387, 1394 (5th

Cir. 1993). But we have approved the use of two case agents at

trial, where a second agent’s non-exclusion could be justified

under the essential-presence exception of Rule 615(3). See United

States v. Alvarado, 647 F.2d 537, 540 (5th Cir. Unit A 1981). The

Government argues that the complexity of this case justified a

9
second case agent being excused from the Rule because two agents

were essential to the presentation of the case. However, the

prosecution did not invoke the third exemption at trial and the

district court made no such finding. Further, we are not persuaded

that this string of simple armed robberies falls within the ambit

of Rule 615(3)’s complexity exception. Because neither the

Government nor the district court has articulated a sound basis

justifying the exemption of two agents from the requirements of

Rule 615 and because, on review of the record, we can discern no

such basis, we hold that the district court abused its discretion

in overruling the Appellants’ objection to the presence of both

agents during the trial of this case.

Even so, Appellants have shown no prejudice. The purpose

behind the sequestration of witnesses is to discourage and expose

fabrication, inaccuracy and collusion, see Notes of Advisory

Committee on Proposed Rules, and to minimize the opportunity that

each witness will have to tailor his testimony. See United States

v. Ramirez, 963 F.2d 693 (5th Cir. 1992). Orr testified about the

AutoZone robbery, the chain of custody of some items of evidence,

the arrest of Appellant McCray, various witness statements that

were taken and general Beaumont geography. Keeler testified that

the incidents charged occurred in the Eastern District of Texas,

that there was no “Catfish King” in Jasper, but there was a Catfish

Cabin located in Jasper. Keeler also testified concerning a photo

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lineup, two uncharged robberies and about the effect of the

robberies on interstate commerce. Generally, the two officers

testified about different subject matter. In two instances during

the cross examination, Keeler directly contradicted testimony given

earlier by Orr. Therefore, we find that the two officers’

testimony was not “tailored” due to the district court’s failure to

exclude one of them from the courtroom. In fact, the Appellants

have not identified and we cannot discern any prejudice growing out

of the district court’s error. Therefore, we conclude that there

was no reversible error in the district court’s decisions regarding

Rule 615.

II. SUFFICIENCY OF EVIDENCE

a. Standard of review

In reviewing appellants’ challenges to the sufficiency of the

evidence, we must uphold the convictions if a rational juror 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). 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). The evidence need not exclude every reasonable

hypothesis of innocence. See United States v. McCord, 33 F.3d

1434, 1439 (5th Cir. 1994).

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b. Sufficiency of the evidence on the conspiracy counts

Limbrick, Gasaway and Chopane challenge the sufficiency of the

evidence to sustain their convictions for conspiracy to affect

interstate commerce, in violation of 18 U.S.C. § 1951. To sustain

the conspiracy conviction, there must be sufficient evidence for a

rational juror to conclude that the appellants conspired to

obstruct, delay or affect commerce in any way or degree by robbery.

18 U.S.C. § 1915(a). The jury must find an agreement between two

or more persons to commit a crime, and an overt act by one of the

conspirators to further the conspiracy. See United States v.

Stephens, 964 F.2d 424, 427 (5th Cir. 1992). Proof of a conspiracy

does not require direct evidence of an actual agreement between the

co-conspirators, but may be inferred from circumstantial evidence.

The Government is not required to prove a conspirator had knowledge

of all the details of the conspiracy or even knowledge of each of

its members, provided knowledge of the essential elements of the

conspiracy is proven. See United States v. Alvarez, 625 F.2d 1196,

1198 (5th Cir. 1980). A defendant cannot escape criminal

responsibility on the grounds he joined the conspiracy after its

inception or because he plays a minor role in the total scheme.

Id.

The Government contends that there existed a general,

overarching conspiracy to rob local stores, in which the defendants

engaged with varying degrees of participation. Although none of

12
the defendants participated in all of the eight charged robberies,

the various combinations of participants linked all of the

defendants together. The Government also points to a similar modus

operandi for each robbery, thereby establishing a common scheme

(e.g., use of weapons, involvement by two or more robbers,

robberies of businesses at night while employees were still on the

property).

The conspiracy evidence against Limbrick and Gasaway was

strongest. Limbrick confessed to his participation, with others,

in the Peking Restaurant robbery, and a witness testified that she

recognized his voice at the Catfish Cabin heist. From this

evidence, the jury could infer that Limbrick was guilty of

conspiracy. According to Mouton, who testified for the Government,

Gasaway instigated the Dairy Queen and Hardee’s robberies.

Mouton’s testimony was corroborated by witnesses who saw a vehicle

matching Gasaway’s leaving the scene of the Dairy Queen robbery,

and of witness Jason Gulley who saw Gasaway near Hardee’s at the

time of that crime.

Although the evidence against Chopane was weaker, the jury was

not unreasonable in concluding that he participated in the

conspiracy as well. Chopane was convicted only for the Subway

Sandwich Shop robbery. Nevertheless, this robbery shared some

characteristics with the other crimes: it occurred at night, with

a firearm and with another robber. Moreover, McCray, who

participated in the Subway heist with Chopane, was convicted of

13
conspiracy as well as three of the substantive robberies.

Viewed in the light most favorable to the verdict, we find the

evidence sufficient to support the conspiracy convictions of

Limbrick, Gasaway and Chopane.

c. Sufficiency of the identification evidence against McCray

McCray argues that the evidence was insufficient to support

his conviction for robbing the Subway because his conviction rested

on the testimony of a single eyewitness, Mitchell. McCray notes

that Mitchell misidentified McCray’s relative height, weight, and

skin tone, as compared to the other Subway robber, Chopane.

Mitchell, however, got a good look at McCray’s face during the

robbery, and he confidently identified McCray at a photo lineup and

at trial. Although Mitchell’s identification of McCray was

certainly subject to attack, the jury was the ultimate arbiter of

Mitchell’s credibility and chose to credit his identification.

Because Mitchell’s identification was not incredible as a matter of

law, we will not upset the jury’s verdict. See United States v.

Freeman, 77 F.3d 812, 816 (5th Cir. 1996).

d. Gasaway’s robbery conviction

Gasaway argues that the Government offered insufficient

evidence to tie him to the Dairy Queen and Hardee’s robberies. Yet

Mouton, acting as Government witness, specifically testified that

Gasaway participated in both crimes. “[T]he uncorroborated

testimony of an accomplice or co-conspirator can be sufficient to

14
support the verdict.” United States v. Restrepo, 994 F.2d 173, 182

(5th Cir. 1993). Moreover, Mouton’s testimony concerning various

details of the Dairy Queen robbery was in fact extensively

corroborated by other evidence. As to Gasaway’s participation

specifically, two other witnesses testified that a photograph of

Gasaway’s vehicle “looks exactly like the car” and “that’s the car”

that they saw leaving after the Dairy Queen robbery. The jury also

heard Jason Gully testify that on the night of the Hardee’s

robbery, Gasaway and McCray came to his residence in Gasaway’s

maroon car excitedly asking about Hickman and Mouton, who had been

apprehended by police. A reasonable juror could have determined,

based on the evidence presented, that Gasaway either robbed, or

aided and abetted the robberies of Dairy Queen and Hardee’s. We

therefore affirm those convictions.

e. Gasaway’s and Limbrick’s Firearm Convictions

Gasaway and Limbrick contend that there was insufficient

evidence to sustain their convictions for using or carrying

firearms during the commission of crimes of violence, because the

Government never demonstrated that they themselves carried weapons

during the charged robberies.

The Government explicitly charged the defendants with aiding

and abetting the use of firearms, in violation of 18 U.S.C. §§

924(c) & 2. Additionally, the trial court gave the jury an aiding

and abetting instruction. If we assume for the sake of argument

15
that there was no evidence that Gasaway and Limbrick carried

firearms individually, there still exists ample evidence in the

record that Gasaway and Limbrick aided others in their use of

firearms. They were aware of the existence of the firearms, given

the prominent role the guns played in the robberies and the limited

number of robbers. Accordingly, their convictions for aiding and

abetting were proper. See United States v. Williams, 985 F.2d 749,

755 (5th Cir. 1993)(requiring aiders and abettors at least to know

that firearms were available to their cohorts during the crime.)

f. Sufficiency as to the Effects on Interstate Commerce

The Hobbs Act criminalizes efforts by defendants to obstruct,

delay, or affect commerce or the movement of any article in

commerce, by robbery or extortion. 18 U.S.C. § 1951(a). The

Government presented evidence at trial that all of the victimized

businesses either purchased products out-of-state or transferred

their profits to out-of-state national headquarters. Appellants

Hickman, Chopane and Limbrick all contend, however, that the

amounts stolen from the businesses were fairly trivial or that the

businesses themselves only had a minor role in interstate commerce.

Accordingly, they argue, their crimes fell outside the ambit of the

Hobbs Act.

In support of their position, the appellants cite United

States v. Lopez, 514 U.S. 549 (1995), for the proposition that the

Government is required to show that each robbery had a

16
“substantial” effect on interstate commerce in order to support

convictions under the Hobbs Act. This circuit has rejected that

argument, instead employing the aggregation principle to allow

Hobbs Act convictions where the impact of individual robberies on

interstate commerce is minimal. In United States v. Robinson, 119

F.3d 1205 (5th Cir.), cert. denied, 118 S. Ct. 1104 (1997), this

court held:

[I]n Hobbs Act prosecutions based on local activities
that affect interstate commerce, the government need not
prove that the effect of an individual defendant’s
conduct was substantial. It suffices to show a slight
effect in each case, provided that the defendant’s
conduct is of a general type which, viewed in the
aggregate, affects interstate commerce substantially.

Id. at 1208.

A review of Supreme Court authority raises serious questions

regarding whether aggregation principles can be used as the

commerce clause jurisdictional hook under the Hobbs Act when the

underlying crimes arise from a purely local crime spree. Without

question, these robberies standing alone, or viewed cumulatively,

do not substantially affect commerce. They may not even minimally

affect commerce. These local robberies are not the sort of

economic activity that can legitimately be viewed in the aggregate

for traditional economic impact analysis purposes. The conceptual

difference between the consumption of home-grown wheat that might

otherwise have been sold on the open market, see Wickard v.

Filburn, 317 U.S. 111 (1942), or denying service in a restaurant to

17
a particular race of interstate travelers, see Katzenbach v.

McClung, 379 U.S. 294 (1964), and a string of local robberies is

apparent. We, however, are bound by circuit law. See United

States v. Robinson, 119 F.3d at 1208. Robinson constitutes clear

circuit precedent for the application of aggregation to this local

non-economic activity, thereby setting the commerce clause

jurisdictional hook. Unless and until the en banc court

intervenes, our choice is clear. Under existing circuit precedent,

the jury in this case heard sufficient evidence to support the

conclusion that the victims engaged in interstate commerce.

Additionally, Limbrick argues that the Government failed to

prove that the Catfish Cabin heist resulted in even a minimal

impact on interstate commerce. The record is clear that no money

was taken in that robbery. However, § 1951 also covers “attempts”

to obstruct interstate commerce, and the appellants were so

indicted. Moreover, the district court explicitly charged the jury

that Limbrick and Hickman could be convicted on this count if, had

their attempts at robbery been successful, the Catfish Cabin’s

assets would have been at least minimally depleted. The evidence

is sufficient to sustain the jury’s affirmative answer to this

question.

III. JURY INSTRUCTIONS REGARDING INTERSTATE COMMERCE

Hickman contends that the trial court improperly charged the

jury regarding the Hobbs Act offenses by instructing them that the

18
Government need only show a minimal impact on interstate commerce.

He submits that following Lopez, the jury should have been told

that it had to find that his actions had a substantial impact on

commerce. Like the sufficiency of evidence argument discussed

above, this position is foreclosed by United States v. Robinson,

119 F.3d 1205 (5th Cir. 1997).

Hickman also contends that the trial court’s instructions on

the interstate commerce element of the offense improperly took that

element of the crime out of the province of the jury, in violation

of United States v. Gaudin, 515 U.S. 506 (1995). Hickman submits

that the court’s instruction reserved for itself the question of

whether Hickman’s acts affected interstate commerce; the charge

merely asked whether several potential interstate-commerce-

affecting events occurred. Yet as Hickman concedes, in United

States v. Parker, 104 F.3d 72, 74 (5th Cir.), cert. denied, 117 S.

Ct. 1720)(1997)(en banc), and United States v. Miles, 122 F.3d 235,

239-40 (5th Cir. 1997), cert. denied 118 S. Ct. 1201 (1998), this

court upheld substantially similar charges against Gaudin-style

attacks. Accordingly, Hickman’s Gaudin argument fails.

IV. MOTIONS TO SEVER

a. Use of redacted confessions

At trial, the Government offered the confessions of Limbrick,

McCray and Hickman. Those confessions mentioned the other co-

defendants, including Gasaway and McCray. The Government redacted

19
the confessions, blacking out all names except the confessing party

but leaving clear references to the fact that other people had

participated in the crimes which were the subject of the

confessions. Gasaway and McCray moved for severance on the basis

of Bruton v. United States, 391 U.S. 123 (1968), which held that

the admission of incriminating statements by a co-defendant who is

not subject to cross-examination can violate the confrontation

rights of the non-confessing defendant. Both Gasaway and McCray

contend that despite the redactions, it still would have been

possible for the jury to infer the identity of the missing names.

Under precedents as they existed at the time of the trial,

appellants’ Bruton arguments fail. This Circuit has held that only

statements that directly implicate the defendant create Bruton

problems. See United States v. Jinemez, 77 F.3d 95, 98 (5th Cir.

1996). Statements of co-defendants are properly admitted so long

as those statements, standing alone and without reference to other

evidence, do not identify or implicate the defendant. See United

States v. Espinoza-Seanez, 862 F.2d 526, 533-34 (5th Cir. 1988).

However, after the trial and after this case was fully

briefed, the Supreme Court, in Gray v. Maryland, 118 S. Ct. 1151

(1998), held that introducing, during a joint trial, a confession

of a nontestifying co-defendant which has been redacted violated

Bruton and the Constitution. Gray found that redactions that

replace a proper name with an obvious blank, the word “delete,” a

20
symbol, or similarly notify the jury that a name has been deleted

are similar enough to Bruton’s unredacted confessions as to warrant

the same legal results. See Gray, 118 S. Ct. at 1156. The

confessions admitted in this case, having been redacted by blacking

out the co-defendants names with a marker, are exactly the type of

evidence found unconstitutional by Gray. Therefore, we find that

the admission of the confessions was error.

However, Gray does not undercut this Circuit’s holding that

Bruton error may be considered harmless when, disregarding the co-

defendant’s confession, there is otherwise ample evidence against

a defendant. See United States v. Kelly, 973 F.2d 1145, 1150 (5th

Cir. 1992)(recognizing harmless error standard); United States v.

Bobo, 586 F.2d 355 (5th Cir. 1978)(applying harmless error standard

to Bruton problems arising out of redacted co-defendant’s

confession). “[B]efore a federal constitutional error can be held

harmless, the court must be able to declare a belief that it was

harmless beyond a reasonable doubt.” Chapman v. California, 386

U.S. 18, 24 (1967). We must determine whether, absent the Bruton-

tainted confessions, there was a reasonable probability that the

defendants would be acquitted. See United States v. Lewis, 786

F.2d 1278, 1286 n.11 (5th Cir. 1986). If the “statement’s impact

is insignificant in light of the weight of other evidence against

the defendant,” the error is harmless. See United States v. Basey,

816 F.2d 980, 1005 (5th Cir. 1987).

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 After our own review of the record and after consideration of

what seems to have been the probable impact of the confessions on

the minds of a jury, we find, beyond a reasonable doubt, that the

evidence was harmless; that is, that it did not prejudicially

contribute to the convictions. See Chapman, 386 U.S. at 24. The

jury heard Mouton testify from personal knowledge about McCray’s

and Gasaway’s involvement. They also heard various pieces of

circumstantial evidence linking them to their counts of conviction.

Moreover, McCray himself confessed to the Hardee’s robbery. We

therefore hold that the admission of the redacted confessions,

while error, was harmless error.

b. Motion for severance based on non-Bruton reasons

Gasaway also argues that his trial should have been severed

from that of his co-defendants because the portion of the

conspiracy for which he was charged was dissimilar to the rest of

the scheme. He argues that he was charged with participation in a

completely separate crime, requiring the severance of his trial.

However, the evidence in the record ties Gasaway to a number of the

robberies, making him a major participant in the charged

conspiracy. Gasaway has failed to demonstrate that his joint trial

prevented the jury from making a reliable judgment. See United

States v. Krout, 66 F.3d 1420, 1430 (5th Cir. 1995).

Gasaway also claims that his case should have been severed

because his defense relating to his lack of knowledge concerning

22
the contents of the bag that he threw away was antagonistic to that

of his co-defendants. The test for severance of antagonistic

defenses is that the essence or core of the defenses must be in

conflict so that a jury, in order to believe one defense, must

necessarily disbelieve the core of the other defense. See United

States v. Bruno, 809 F.2d 1097, 1103 (5th Cir. 1987). Gasaway’s

position concerning the contents of the bag did not impact the core

of his or his co-defendant’s defenses. We therefore conclude that

the district court did not abuse its discretion in denying

Gasaway’s motion for severance. See United States v. Leal, 74 F.3d

600, 605 (5th Cir. 1996).

V. IDENTIFICATION OF CONFIDENTIAL INFORMANT

Police first identified Chopane as a suspect based on

information from a confidential informant who indicated that

Chopane had participated in several robberies in the area. Acting

on this tip, the police placed Chopane’s picture in a photo lineup.

Apparently, the confidential informant had no involvement in

Chopane’s crimes; he merely passed on information he had acquired

in the community. Chopane contends on appeal that the trial court

erred in failing to provide him with the identity of the informant,

so as to allow Chopane to prepare his defense.

In Roviaro v. United States, 353 U.S. 53, 60 (1957), the

Supreme Court recognized that the Government possesses a privilege

to keep confidential the names of informants, but that this

23
privilege should yield, under certain circumstances, to a

defendant’s due process rights. This circuit has crafted a three-

part test in the wake of Roviaro to determine whether disclosure of

a confidential informant’s identity is necessary. We examine: 1)

the informant’s degree of involvement in the crime; 2) the

helpfulness of the disclosure to the defense; and 3) the

Government’s interest in nondisclosure. See United States v.

Sanchez, 988 F.2d 1384, 1391 (5th Cir. 1993). As to the first

prong, we have held that mere “tipsters” are not so closely related

to a crime as to require the disclosure of their identity. See

United States v. Cooper, 949 F.2d 737, 749 (5th Cir. 1991). Here,

the evidence supported the conclusion that the confidential

information was simply a tip. Second, Chopane has demonstrated no

need for the informant’s identity; as the informant was merely

passing a tip, and his tip was not relied upon at trial to convict

Chopane, that tip could not foreseeably assist Chopane in his

defense. Third, the district court had some evidence that Chopane

was dangerous. Evidence at a pretrial hearing on Chopane’s motion

to disclose the informant’s identity included photographs recovered

by law enforcement showing Chopane pointing a sawed-off shotgun at

the camera and holding a pistol to his own head. This evidence

gives rise to a legitimate concern that the informant’s life might

be jeopardized were his identity revealed. We therefore conclude

that the district court did not abuse its discretion in denying

24
Chopane’s motion to reveal the identity of the informant.

VI. DID LINEUP TAINT THE IN-COURT IDENTIFICATION?

Charles Mitchell, a Subway employee, later identified both

McCray and Chopane as the men who robbed his store. McCray and

Chopane now challenge the district court’s decision to admit his

identification testimony.

Whether identification evidence is admissible at trial is a

mixed question of law and fact subject to de novo review, but the

district court’s underlying factual findings are reviewed for clear

error. See United States v. Fletcher, 121 F.3d 187, 194 (5th

Cir.), cert. denied, 118 S. Ct. 640 (1997).

The admissibility of eyewitness identification at trial

following a pretrial identification from a photo lineup is governed

by a two-step analysis. First, we ask whether the lineup was

impermissibly suggestive; second, if it was so suggestive, we

consider whether the lineup led to a substantial likelihood of a

misidentification. See Simmons v. United States, 390 U.S. 377, 384

(1968).

a. Chopane

Before Mitchell participated in the photo lineup, he indicated

that one of the robbers wore a “Starter” jacket. Chopane was the

only person in the lineup photos wearing such a jacket. Further,

Chopane’s picture, unlike the others, was taped over another

picture. Given the combination of these two factors, it is

25
possible that the lineup could have impermissibly drawn Mitchell’s

attention to Chopane’s picture.

Assuming that Chopane’s lineup was impermissibly suggestive,

we must next determine whether Mitchell’s resulting identification

was unreliable. In assessing the second step of the test, this

court looks to six factors to determine whether an impermissibly

suggestive lineup led to a substantial likelihood of irreparable

misidentification. We consider: 1) the opportunity of the witness

to view the criminal; 2) the witness’s degree of attention; 3) the

accuracy of the pre-identification description; 4) the witness’s

level of certainty; 5) the elapsed time between the crime and the

identification; and 6) the corrupting influence of the suggestive

identification. See United States v. Merkt, 794 F.2d 950, 958 (5th

Cir. 1986).

First, Mitchell was able to view the robber for a minute to a

minute and a half in good lighting. Second, as the victim of the

robbery, Mitchell’s attention was drawn to the face of his

assailant. Mitchell stated at the suppression hearing: “You just

don’t forget a person that’s pointed a gun at you.” Third,

Mitchell’s pre-identification description of Chopane was accurate

in part and inaccurate in part. Although reasonably close,

Mitchell stated that Chopane was taller than he actually is.

Fourth, Mitchell quickly and confidently identified Chopane when he

viewed the lineup, and he has never wavered in his identification.

26
Fifth, only three months passed between the crime and his

identification, not a particularly long period of time. Finally,

it is unlikely that the lineup had a corrupting influence on

Mitchell’s identification, as Mitchell was very confident in his

in-court identification and testified to the fact that he did not

rely upon the jacket that Chopane was wearing in identifying

Chopane’s photo.

b. McCray

As to the identification of McCray, the lineup was not

impermissibly suggestive. The only complaint McCray has about his

lineup was that his picture was in the second spot. McCray notes

that the police told Mitchell to identify the “second man who

robbed him,” which he interprets to be an instruction to Mitchell

to pick the second photo in the lineup. McCray also complains that

Chopane’s picture had likewise been in the second spot. McCray’s

lineup was the second lineup attended by Mitchell; clearly,

Mitchell understood the police’s instruction to mean that he should

pick the second man that had robbed him, not that he was to pick

the photo in the second spot. We conclude that McCray has not

established that his lineup was impermissibly suggestive.

We therefore conclude that the district court did not err in

admitting Mitchell’s trial identification of Chopane and McCray.

VII. COMPENSATED WITNESS JURY INSTRUCTION

Roderick Mouton testified for the Government against the

27
defendants as part of his plea agreement. The district court

informed the jury about his plea agreement and instructed them to

consider his testimony with “caution” and “great care.” McCray

complains on appeal that the district court failed to give the jury

a “compensated witness” instruction concerning Mouton’s suspect

credibility. Because McCray failed to request such an instruction

from the trial court, we employ the plain error standard of review.

See United States v. Reyes, 102 F.3d 1361, 1364 (5th Cir. 1996).

The specific “compensated witness” instruction that McCray argues

he is entitled to applies to witnesses who are paid a fee for their

testimony, not to those who, like Mouton, receive a reduced

sentence. See United States v. Cervantes-Pacheco, 826 F.2d 310,

315 (5th Cir. 1987). We therefore conclude that the district

court’s instruction cautioning the jury about Mouton’s credibility

was not plain error.

VIII SUBJECT MATTER JURISDICTION OVER STATE COURT EVIDENCE

Limbrick argues that the federal courts lacked jurisdiction to

try him because they relied on evidence collected by the State of

Texas in a capital murder investigation. He cites Palmer v. Texas,

212 U.S. 118 (1909), which stands for the proposition that federal

courts cannot interfere with property subject to state court

jurisdiction. Here, the state investigated Limbrick, but dropped

its charges against him in deference to the federal proceeding. We

conclude that the federal court properly exercised jurisdiction

28
over Limbrick’s crime.

IX SENTENCING ISSUES

a. Standard of review

We examine factual findings subject to the “clearly erroneous”

standard mandated by 18 U.S.C. § 3742(e), and accord great

deference to the trial judge’s application of the sentencing

guidelines. See United States v. Humphrey, 7 F.3d 1186, 1189 (5th

Cir. 1993). However, a sentence imposed as a result of an

incorrect application of the sentencing guidelines must be

reversed. Id.

b. Enhancements for Restraint and Abduction of Victims

The district court increased Chopane’s base offense level by

two levels because he had “physically restrained” victims during

the Subway robbery. See U.S.S.G. § 2B3.1(b)(4)(B). Hickman’s base

offense level was increased four levels because he “abducted”

victims during the robberies of AutoZone and Church’s Chicken. See

U.S.S.G. § 2B3.1(b)(4)(A). Chopane and Hickman objected to the

enhancements at their respective sentencings and now press for

relief on appeal.

U.S.S.G. § 2B3.1(b)(4) provides:

(4) (A) If any person was abducted to facilitate commission
of the offense or to facilitate escape, increase by 4
levels; or (B) if any person was physically restrained to
facilitate commission of the offense or to facilitate
escape, increase by 2 levels.

“Physically restrained” is defined earlier in the Guidelines as

29
“the forcible restraint of the victim such as by being tied, bound,

or locked up.” U.S.S.G. § 1B1.1, comment. (n.1(i)). “Abduct” is

defined as “a victim was forced to accompany an offender to a

different location. For example, a bank robber’s forcing a bank

teller from the bank into a getaway car would constitute

abduction.” U.S.S.G. § 1B1.1, comment. (n.1(a)).

Chopane argues that he never tied, bound, or locked up the

victims of the robberies. Rather, he contends that at best the

evidence only demonstrated that he “tapped” a Subway employee on

the shoulder with a gun. However, the district court reasoned that

Chopane’s pointing of a firearm at the employee restricted her

movement.

The resolution of Chopane’s sentencing challenge turns on the

interpretation of the definition of “physical restraint.” The

Guidelines define the term to include acts “such as being tied,

bound or locked up.” Although we have never reached this question,

those circuits which have reached it have been unanimous in

concluding that “[b]y the use of the words ‘such as,’ it is

apparent that ‘being tied, bound or locked up’ are listed by way of

example rather than limitation.” United States v. Stokley, 881

F.2d 114, 116 (4th Cir. 1989); see also United States v. Rosario,

7 F.3d 319, 320-21 (2nd Cir. 1993); United States v. Doubet, 969

F.2d 341, 346 (7th Cir. 1992); Arcoren v. United States, 929 F.2d

1235, 1246 (8th Cir. 1991); United States v. Roberts, 898 F.2d

30
1465, 1468 (10th Cir. 1990). We agree that it is possible for a

district court to conclude that a defendant physically restrained

his victims without evidence that he actually tied, bound, or

locked them up.

The evidence supporting the district court’s § 2B3.1(b)(4)(B)

finding as to Chopane showed that Chopane pointed a firearm at the

Subway employee during the robbery. The Government argues that

this action carried an implicit threat to obey his command or be

shot and was enough to support a finding of physical restraint.

The Government points to cases from other circuits implying that

restraint need not encompass the use of actual physical force, so

long as the defendant’s actions permitted no alternative but

compliance. See United States v. Kirtley, 986 F.2d 285, 286 (8th

Cir. 1993); Doubet, 969 F.2d at 347. However, the cases from other

courts construing § 2B3.1(b)(4)(B) do not support the Government’s

position. Physical restraint has been upheld in various

circumstances involving either the physical holding of the victim

or the confining of the victim in some manner coupled with a threat

of violence. See, e.g., Rosario, 7 F.3d at 321 (defendant stood on

victim’s throat); United States v. Foppe, 993 F.2d 1444, 1452-53

(9th Cir. 1993)(defendant dragged and grabbed victims); Kirtley,

986 F.2d at 286 (defendant ordered victims at gunpoint to bind

themselves); Doubet, 969 F.2d at 346 (defendant herded victims into

an enclosed room at gunpoint); Arcoren, 929 F.2d at 1246 (defendant

31
pushed and grabbed victims to prevent them from leaving bedroom;

Roberts, 898 F.2d at 1470 (defendant put right arm around victim

and held knife to victim’s face). Even the recent Ninth Circuit

case, United States v. Thompson, 109 F.3d 639, 641 (9th Cir. 1997),

which contained language indicating that physical restraint occurs

anytime a victim has a gun pointed at her and is ordered to do

something, involved the defendant forcing one victim to lie down on

the floor and forcing another to walk a short distance at gunpoint.

Although Chopane’s actions permitted no alternative but

compliance, he did nothing to restrain his victim that an armed

robber would not normally do. As the Seventh Circuit has noted,

merely brandishing a weapon at a victim cannot support an

enhancement under this section of the Guidelines, because, “[w]ere

it otherwise, enhancement would be warranted every time an armed

robber entered a bank, for a threat not to move is implicit in the

very nature of armed robbery.” Doubet, 969 F.2d at 346. We

therefore conclude that the district court erred in concluding that

Chopane “physically restrained” his victim as contemplated by the

Guidelines. Were we to rule otherwise, there would be no limiting

principle on the application of this enhancement; every armed

robbery would be enhanced by the physical restraint provision.

Next, we must determine whether the court erred in determining

that Hickman abducted his victims. The district court found that

the victims in the Jasper Church’s Chicken and Hardee’s robberies

32
“were initially accosted in the parking lots and then forced back

into the restaurant by the robbers[.]”

The district court cited United States v. Hawkins, 87 F.3d

722, 726-28 (5th Cir. 1996) to support its finding that Hickman

abducted his victims during these two robberies. In Hawkins, the

defendants beat the victims at one location in a parking lot and

then dragged them at gunpoint 40 or 50 yards away. Id. We upheld

a four level sentence enhancement in that situation, pointing out

that it was not necessary to cross a property line or the threshold

of a building to establish a change of location. Id. The term “a

different location” must be interpreted on a case by case basis,

considering the particular facts under scrutiny, not mechanically,

based on the presence or absence of doorways, lot lines,

thresholds, and the like. Id. We cannot say that the district

court erred in applying the four-level abduction enhancement, as

interpreted by Hawkins, to Hickman under the facts of this case.

c. Imposition of consecutive sentences on Hickman

The district court imposed consecutive sentences on Hickman

pursuant to 18 U.S.C. § 924(c), which provides for twenty year

consecutive sentences for individuals convicted of second or

subsequent firearms offenses. Hickman was convicted of multiple

firearms offenses in this trial, but he argues that § 924(c) only

permits consecutive sentencing when the prior convictions have

previously been entered as final judgments. As Hickman concedes,

33
in United States v. Deal, 508 U.S. 129 (1993), the Supreme court

specifically rejected this argument and approved of the sentencing

approach taken by the district court below.

Hickman contends further that even if his later convictions

under § 924(c) can run consecutively to his first conviction, those

later convictions cannot run consecutively to each other. Yet the

statute explicitly states that sentences imposed under § 924(c)

cannot run concurrently with any other sentences. See 18 U.S.C. §

924(c)(1). Logically, that prohibition includes other § 924(c)

sentences as well, a conclusion that has been reached by other

circuits. See, e.g., United States v. Wright, 33 F.3d 1349, 1340

(11th Cir. 1994); United States v. Fontanilla, 849 F.2d 1257, 1258

(9th Cir. 1988). We therefore conclude that the district court did

not err in imposing consecutive sentences for Hickman’s § 924(c)

convictions.

d. Sentencing enhancement for obstruction of justice

Section 3C1.1 of the Sentencing Guidelines provides that:

If the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice during the investigation, prosecution, or
sentencing of the instant offense, increase the offense
level by two levels.

U.S.S.G. § 3C1.1. Destroying or concealing or directing or

procuring another person to destroy or conceal evidence that is

material to an official investigation is an example of conduct to

which the enhancement applies. U.S.S.G. § 3C1.1, comment. (n.

34
1(d)).

The district court imposed a two-level enhancement to

Hickman’s base offense level for obstruction of justice, see

U.S.S.G. § 3C1.1, because Hickman and others dismantled the shotgun

used in the Peking Restaurant robbery/murder. Hickman objects to

this enhancement under United States v. Lister, 53 F.3d 66, 71 (5th

Cir. 1995), in which we held that the obstruction of justice

enhancement should apply only to those cases where misconduct

occurs with the defendant’s knowledge of an investigation or, at

least, with the defendant’s correct belief that an investigation is

probably underway. Hickman argues that the Government produced no

evidence that he was aware of an investigation of the Peking

Restaurant crime when he and his cohorts dismantled the weapon.

The district court, however, made ample findings to support its

imposition of the obstruction enhancement. There was evidence

before the court that the shotgun was dismantled and thrown into a

river four days after the crime. In the interim, Hickman and

McCray read a newspaper article concerning the Peking Restaurant

heist. Moreover, Limbrick viewed a television report about the

crime and discussed it with Hickman. It was permissible for the

district court to infer from this evidence that Hickman was aware

of the investigation into the crime or at least had a correct

belief that an investigation was probably underway. See Lister, 53

F.3d at 71. We therefore conclude that the district court did not

35
err in imposing a two level enhancement to Hickman’s base offense

level for obstruction of justice.

e. Use of murder in calculating Hickman’s sentence

Hickman contends that the district court improperly calculated

his base offense level for the Peking Restaurant crime. The court

set his offense level at 43, relying on U.S.S.G. §§ 2B3.1(c)(1) and

2A1.1, which provide the base offense level for murder. Hickman

argues that the murder guideline should not have been applied to

his case because he was not the triggerman and it was not

reasonably foreseeable that someone would be killed during the

crime. He further contends that he was not charged with conspiracy

for this specific crime, so he should not be held responsible for

the crimes of his co-defendants under the Pinkerton doctrine. See

Pinkerton v. United States, 328 U.S. 640 (1946).

Section 1B1.3(a)(1)(B) of the Guidelines provides that

defendants may be sentenced for all foreseeable conduct that occurs

as a part of a jointly undertaken criminal activity, even if no

conspiracy is charged. Hickman’s argument that the murder was

unforeseeable is specious. Prior to the Peking Restaurant crime,

Hickman had participated in various robberies in which guns were

brandished and shots were fired. Moreover, the perpetrators of the

Peking Restaurant offense openly utilized loaded firearms. Hickman

clearly should have understood that the brazen use of loaded

36
firearms might lead to the death of a victim. Indeed, application

Note 2 to U.S.S.G. § 1B1.3 details almost an identical situation

where one robber should be held responsible for the murder

committed by a fellow robber in the course of the robbery. The

district court did not err using the murder component in

calculating Hickman’s base offense level.

CONCLUSION

For the foregoing reasons, we affirm all the counts of

conviction against all appellants. We vacate Chopane’s sentence,

and remand Chopane to the district court for resentencing. We

affirm the sentences imposed as to the other appellants.

AFFIRMED IN PART. VACATED AND REMANDED IN PART.

37
Defendant Conspiracy Subway Church’s Catfish Peking AutoZone Church’s Dairy Hardee’s Sentences

I II/III Chicken Cabin Restaurant X/XI Chicken Queen XVI/XVII

3/14/94 Jasper VI/VIII VIII/IX 5/17/94 Beaumont XIV/XV 6/21/94

IV/V 5/2/94 5/2/94 XII/XIII 6/1/94

4/1/94 5/21/94

Hickman Hobbs/ Hobbs/ Hobbs/ Hobbs/ Hobbs/ Hobbs/ Hobbs/ 3180

Gun Count Gun Count Gun Count Gun Count Gun Count Gun Count Gun Count

Limbrick Guilty - Not Not Hobbs/ Hobbs/ 1020

Conspiracy Guilty Guilty Gun Count Gun Count

McCray Guilty - Hobbs/ Hobbs/ Hobbs/ 627

Conspiracy Gun Count Gun Count Gun Count

Chopane Guilty - Hobbs/ 111

Conspiracy Gun Count

Gasaway Guilty - Hobbs/ Hobbs/ 387

Conspiracy Gun Count Gun Count

38
 Notes $230 $1,848 $0 $0 $1,300 $1,160 Maroon $2,000

2 robbers 2 robbers White Car White Car 2 robbers 2 robbers Car 4 robbers

4 robbers 2 robbers 2 robbers

Death & Injury

* Mouton - Pleaded guilty to misprision of felony, testified for government at trial.

39