UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-50829
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
KIMBERLY S. SMITH and CARMELITA MITCHELL,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Texas
February 14, 2000
Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
In this consolidated direct appeal, Kimberly S. Smith
(“Smith”) and Carmelita Mitchell (“Mitchell”) seek vacatur of the
judgments of conviction and sentences entered by the United States
District Court for the Western District of Texas, Judge Orlando
Garcia, presiding. Having concluded an exhaustive review of the
record and for the reasons set forth below, we find no error and
therefore affirm both Smith's and Mitchell's convictions and
sentences.
I. BACKGROUND
The two appellants were named, along with Talayah Sullivan
(“Sullivan”), Stephanie Graves (“Graves”), and Nekeidra Shawon
Lewis (“Lewis”), in a two-count, second superseding indictment
returned in the San Antonio Division of the Western District of
Texas on April 1, 1998. The conspiracy alleged in that indictment
charged the five co-defendants with conspiring to commit bank
robbery; more specifically, conspiring to take from the person and
presence of another, by force, violence and intimidation, a sum of
money belonging to and in the care, custody, control, management
and possession of the Bank of America, a bank whose deposits were
then insured by the FDIC, all in violation of 18 U.S.C. §§ 371 and
2113(a). As the manner and means of the conspiracy, the government
alleged that the defendants obtained information concerning bank
procedures from co-conspirator Smith, who was employed at the Bank
of America.
With respect to the indictment returned against the
defendants, Count One charged all five co-defendants with
conspiracy to commit bank robbery, in violation of 18 U.S.C. §§ 371
and 2113(a); and Count Two charged all five with aiding and
abetting bank robbery and using a dangerous weapon in the
commission of the offense, in violation of 18 U.S.C. §§ 2, 2113(a),
and 2113(d). Sullivan, Graves, and Lewis pleaded guilty, and
2
pursuant to their plea and cooperation agreements, Graves and Lewis
testified on behalf of the government during the jury trial of
Appellants Smith and Mitchell.
On May 8, 1998, the jury returned its verdict, finding Smith
guilty on Counts One and Two and Mitchell guilty on Count One only.
Smith was sentenced to a 60-month term of imprisonment for Count
One and a 175-month term of imprisonment for Count Two, both
sentences to be served concurrently, followed by a three-year term
of supervised release on Count One and a concurrent five-year term
of supervised release on Count Two. Mitchell received a 60-month
term of imprisonment, followed by a three-year term of supervised
release. Both appellants, along with their convicted co-defendants
were jointly and severally ordered to pay $68,417 in restitution to
the Bank of America,1 with fines being waived based on the
defendants' inability to pay.
II. DISCUSSION
The appellants have each raised numerous issues, several of
which overlap one another. We will address the various issues
below, roughly in a chronological sequence, with trial matters
addressed first and sentencing matters addressed last.
1
Defendant Lewis, however, was ordered to pay only her $300
share of the robbery proceeds.
3
A. Sufficiency of the Evidence
Mitchell argues that the evidence presented to the jury was
insufficient to support her conviction. The standard of review for
a sufficiency of evidence claim is whether, after viewing the
evidence and the reasonable inferences which flow therefrom in the
light most favorable to the verdict, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. See United States v. Jones, 185 F.3d 459, 464
(5th Cir. 1999) (citing Jackson v. Virginia, 443 U.S. 307, 317-18,
99 S. Ct. 2781 (1979)); United States v. Mulderig, 120 F.3d 534,
546 (5th Cir. 1997), cert. denied, 118 S. Ct. 1510 (1998).
In reviewing a sufficiency of evidence claim for conspiracy to
commit bank robbery, we are guided by the following principles set
forth in United States v. Burton, 126 F.3d 666 (5th Cir. 1997):
"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. Gray, 96 F.3d
769, 772-73 (5th Cir. 1996), cert. denied, 117
4
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.
Burton, 126 F.3d at 669.
Here, Mitchell alleges that her conviction was almost
completely dependent on the testimony of her alleged accomplices.
She argues that her accomplices' testimony, though perhaps not
facially incredible, was “entirely unsubstantial,” and thus, under
United States v. Garner, 581 F.2d 481 (5th Cir. 1978), her
conviction may not rest solely upon the uncorroborated
“unsubstantial” testimony of her accomplices.
We note that Mitchell failed to move for judgment of acquittal
at the close of the government's case, and that she also did not so
move for judgment of acquittal at the close of evidence. Thus,
under United States v. Vaquero, 997 F.2d 78, 82 (5th Cir. 1993),
this panel must restrict its sufficiency review to whether
Mitchell's convictions resulted in a “manifest miscarriage of
justice,” which exists only if the record “is devoid of evidence
pointing to guilt or if the evidence on a key element of the
offense is so tenuous that a conviction would be shocking.” Id.
5
(citing United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir.
1992)). Unfortunately for Mitchell, our precedent mandates this
narrowly restricted review of the sufficiency of evidence in light
of her failure to ever move for a judgment of acquittal. Through
this narrow lens we have considered all of the evidence presented
in a light most favorable to the government, and have given the
verdict the benefit of all reasonable inferences and credibility
determinations.
Our exhaustive review of the record leaves us with no doubt
that there was enough evidence to satisfy the standards set forth
above. The evidence, when construed in favor of the verdict, and
with all reasonable inferences drawn in favor thereof, reveals that
Graves, Smith, and Sullivan met at Mitchell's house where they
planned the bank robbery. At the meeting, Smith (the Bank of
America insider) instructed Mitchell and Sullivan on various
aspects of how to conduct the robbery. On the day of the robbery,
Mitchell called Graves while she was en route to the bank to warn
that they should wait because the bank manager was still there.
And after the robbery, the evidence reveals that Graves drove to
Mitchell's sister's house where Mitchell greeted them. Mitchell
helped separate the money and Mitchell told the others to take the
bands off the money because they may have contained tracking
devices. Mitchell and Sullivan took the bands and burned them.
And finally, Mitchell met with Sullivan, Graves, and Smith to
6
discuss hiring a lawyer to represent Smith; Mitchell received $499
from Graves for the lawyer fund.
From this evidence, a jury could most certainly have
reasonably inferred that Mitchell voluntarily joined the conspiracy
knowing its unlawful purpose and that she committed at least one
overt act in furtherance of the conspiracy. Furthermore, and in
light of Mitchell's having failed to properly preserve her
sufficiency claim, we are unable to conclude that the record is
devoid of any evidence pointing to her guilt or that the evidence
on a key element of her offense of conviction is so tenuous that a
conviction would be shocking. For these reasons, Mitchell is not
entitled to relief on this issue.
B. Alleged prosecutorial misconduct
Both appellants argue for the first time on appeal that the
prosecutor committed misconduct by failing to call a witness
referenced during opening statements (specifically, Sullivan), and
that this misconduct served to deny them a fair trial. Since this
issue was not presented to the trial court, it is to be deemed
waived unless the lower court's action constituted plain error.
See United States v. Mann, 161 F.3d 840, 867 n.91 (5th Cir. 1998),
cert. denied, 119 S. Ct. 1766 (1999); Fed.R.Crim.P. 52(b) (allowing
for notice of plain errors affecting substantial rights which were
not presented to the trial court). If the error complained of for
7
the first time on appeal is plain and affected substantial rights,
this Court may provide relief. See United States v. Gaudin, 115
S. Ct. 2310, 2322 (1995) (stating that if there is a forfeited
error, which is plain, and which affects substantial rights, the
decision to correct that forfeited error is in the sound discretion
of the Courts of Appeals). And under this standard, we should not
exercise our discretion to correct a forfeited error unless the
error “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotations
omitted). As is more fully set out below, in light of the
government's response, we decline to exercise our discretion to
correct this obviously forfeited error.2
The following is an excerpt from the prosecutor's opening
statement containing the statements for which appellants claim
plain error:
"You will hear that Ms. Smith and Ms.
Mitchell’s conspiracy unraveled pretty completely
on May the 25th of 1997 when Talayah Sullivan, one
of the robbers, spoke to the FBI and explained that
she had attended a meeting two to three weeks
before this robbery. That meeting was attended by
Kimberly Smith, by Carmelita Mitchell, that they
had agreed, along with Stephanie Graves and another
young woman named Nikki Martin, to do the Bank of
America.
2
It bears mentioning here that the appellants did not ever
request cautionary instructions or urge this issue as a grounds for
relief in a motion for a new trial in the district court. The
possibility for prejudice should have been most obvious to either
of the appellants' counsel at the time of trial.
8
"You’ll hear that they were warned, ‘Thursday
is the day, that’s the day when we sell money or
get money to sell to Brink’s. That’s when we’ve
got most of the money on hand,’ $93,000 it proved
to be. That’s when they were told to tell the
employees, you robbers, tell the employees, ‘Keep
your hands on the counter because there are buttons
under the counter to set off a silent alarm and a
button to set off a camera.’
"You are going to hear Ms. Sullivan say, ‘We
were also warned that these tellers will follow
directions, so we should be sure to tell the
tellers. "Don’t give us a tracking device."’
That’ll explain why no tracking device was put in
the backpack.
"You’re going to hear Ms. Sullivan say, ‘We
were also told we could rob the teller drawers or
the vault, and we should be sure to move into the
vault where the vast majority of the money would
be.’ And the trackers, tracking devices, are
contained in $20 bills."
* * *
"...an incoming telephone call occurred while
they were there, according to Ms. Sullivan, and
that call warned the participants to check the
money for trackers, to make sure we’ve gotten all
the tracking devices off."
The appellants urge that the government's failure to call
Sullivan in light of what was promised to the jury served to
unfairly bolster the testimony of the other witnesses who testified
as to what they learned from Sullivan.
The first two paragraphs above are least troubling because
arguably the prosecutor was forecasting what the evidence was going
to show, i.e., he was explaining that from other evidence, the jury
would hear what Sullivan said, etc., not that Sullivan would appear
to say it or that they would not receive that information from a
9
source other than Sullivan.
With respect to the latter paragraphs, the government concedes
that Sullivan's testimony was promised, and that it was not
delivered.3 However, the government distinguishes the case relied
upon by appellants, United States v. Murrah, 888 F.2d 24 (5th Cir.
1989), by noting that Sullivan was not the exclusive source of the
statements referred to in the opening statement, and that unlike
the scenario in Murrah where the promised evidence was never
presented to the jury in any form after opening statements, the
promised evidence here was presented by alternative sources.
According to the government, the substance was delivered as
promised, just not in the as-promised form of Sullivan's live
testimony.
Based upon our exhaustive review of the record, we find the
government's distinction of Murrah to be persuasive. The full
record supports the government's contention that the evidence
presented through other witnesses was consistent with virtually
everything stated during opening statements, i.e., the record
conclusively establishes that the jury was not infected or unduly
influenced by promised evidence that was not ultimately presented
3
In a footnote to its brief, regarding AUSA William Baumann's
representations outside of the appellate record, the government
states that Sullivan was displeased with her attire the morning of
her testimony, and despite government efforts to get her more
suitable attire, she was not comfortable taking the stand, and so
the prosecutor, confident in the strength of Graves' anticipated
testimony, decided to simply forgo calling Sullivan at all.
10
in any form.4
We find that the prosecutor's opening statement was not
unfairly prejudicial, nor did it affect any substantial rights.
And furthermore, since we find in light of the record evidence that
the alleged error in allowing such an opening statement did not
“seriously affect[] the fairness, integrity or public reputation of
judicial proceedings,” we will not exercise our discretion to
correct this forfeited error. Accordingly, we find that the
appellants were not denied a fair trial as a result of
prosecutorial misconduct and the appellants are not entitled to
relief on this issue.
C. Evidence of two false loan applications
submitted by Smith
Appellant Smith argues that the district court erred in
allowing the government to admit into evidence copies of two
vehicle loan applications submitted by Smith to purchase (1) a BMW
automobile for $16,070 with a down payment of $1,500, and (2) a
Ford F-150 pick-up truck. She contends that these loan
4
Specifically, with respect to the latter three paragraphs of
the opening statement excerpted above: Graves testified that
Sullivan learned from Smith that the tellers would follow
directions and that certain money was marked; Graves testified that
Smith informed Sullivan about getting money from the vault; and
Graves also testified that Mitchell came out of the kitchen with a
phone in hand when they were counting the money and announced that
the money bands might have tracking devices in them and that they
had to be removed.
11
applications contained false statements,5 and that the government
used the applications as undisclosed 404(b) character evidence to
impeach Smith's credibility.
We review evidentiary rulings by the district court for an
abuse of the district court's discretion over such matters. See
United States v. Castillo, 77 F.3d 1480 (5th Cir. 1996). However,
if a defendant fails to object at trial, this Court will only
review evidentiary rulings for plain error. See United States v.
Krout, 66 F.3d 1420, 1434 (5th Cir. 1995). As noted above, an
error is plain when in the context of the entire case, it is “so
obvious and substantial that [the district court's] failure to
notice and correct it would affect the fairness, integrity or
public reputation of judicial proceedings.” United States v.
Lopez, 923 F.2d 47, 50 (5th Cir. 1991).
Here again, Smith's counsel completely failed to object to the
introduction of the loan applications at trial. However, at a
pretrial hearing on Smith's motion in limine to exclude the credit
applications, Smith objected to their introduction for any 404(b)
purpose. Despite this objection Smith concedes that she did not
object to the applications being introduced so long as the
government stayed away from discussing the false statements made on
the applications regarding her employment. Indeed, when asked at
5
In the applications, Smith falsely stated that she had been
employed at a company called Westvaco for the preceding three and
one-half years.
12
trial by the district court if there were any objections to the
introduction of the BMW loan application, Smith's counsel responded
“No objections, your honor.” In light of Smith's failure to object
when specifically asked by the district court at trial, we review
the district court's alleged error in admitting the loan
applications for plain error only.
Smith argues that even under the plain error analysis, she is
entitled to relief on this claim. She notes that the loan
applications were not “wholly” unobjected to by defense counsel,
and they had a profound impact on the fairness and integrity of the
proceedings. And despite the government's contention that it was
going to use the applications only to establish that Smith knew the
FBI was on to her and that she shouldn't make any obvious big cash
purchases that would raise suspicion, the government called a
witness to verify that her employment statement on the loan
application was indeed false. The prosecutor also referenced the
falsity of the loan application in his closing argument. True,
defense counsel's waiver of objection was based upon his
understanding that the prosecutor would not touch upon the false
employment statement, but it is important to note that when the
government called the witness from Westvaco to establish that the
employment statement on the application was false and when
reference was made in closing arguments, no contemporaneous
objection was made.
Without regard to whether the district court abused its
13
discretion in permitting the introduction of the two false loan
applications, we conclude that any error in allowing such evidence
was not “so obvious and substantial” that the district court's
failure to correct it affected the “fairness, integrity, or public
reputation of judicial proceedings.” See Lopez, 923 F.2d at 50.
There is, therefore, no justification for exercising our discretion
to remedy this otherwise forfeited error.
D. Sentencing enhancement against Smith
for obstruction of justice
In this issue, Smith contends that the district court clearly
erred in finding that pursuant to U.S.S.G. § 3C1.1, Smith's
sentence should be upwardly adjusted two levels because she
provided a materially false statement that significantly obstructed
the investigation of the bank robbery. The basis of the district
court's departure was that Smith knew the robbers were females but
intended to identify them as males in order to throw off
investigators. Smith's counsel argued that whatever false
statement Smith made to the FBI was insignificant since
investigators continued to focus on her as the prime suspect and
since little effort was expended looking for black male suspects.
Additionally, Smith's counsel argued, her statements to the FBI
constituted nothing more than a denial of guilt and her hindrance
of the investigation was insignificant.
The district court made the following fact findings with
14
respect to the obstruction enhancement:
[the] Court finds Defendant obstructed justice and
impeded the administration of justice by providing
materially false statements to the Federal Bureau
of Investigation, who has said that they would have
and did go out searching for other people, causing
them to redirect their focus of their
investigation. This was significant in [that] the
FBI officials over a three-week period focusing
[sic] on finding two black bank robbers who in
reality did not exist.
We review the district court's application of the Sentencing
Guidelines to the facts for clear error. See United States v. Cho,
136 F.3d 982, 983 (5th Cir. 1998). The applicable provision of the
Sentencing Guidelines on this issue provides:
[i]f 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 2 levels.
U.S.S.G. § 3C1.1. Application Note 4(g) of § 3C1.1 states that
“providing a materially false statement to a law enforcement
officer that significantly obstructed or impeded the official
investigation or prosecution of the instant offense” qualifies as
obstruction of justice for the purposes of the two-level
enhancement provisions of § 3C1.1.
Smith argues that her statement should have been construed in
the light most favorable to her under United States v. Surasky, 976
F.2d 242, 244 (5th Cir. 1992), and if her statements had been so
construed they would have been deemed mere denials of guilt which
do not qualify for the two-level obstruction enhancement under
15
application note 1. Smith cites numerous cases for the proposition
that her statement is distinguishable from the statements in those
cases where a defendant named another individual specifically or
gave false information where a fictitious suspect could at least
potentially be located. Her efforts are to no avail because her
statement went far beyond merely denying her own involvement or
refusing to provide information, which would not qualify for the
obstruction enhancement; she specifically sent the FBI
investigators on the trail of unknown suspects, whom she
specifically described in order to obstruct the investigation into
her own and her co-conspirators' involvement.
We find that, based on the evidence before it, the district
did not clearly err in concluding that Smith obstructed justice by
providing a materially false statement to law enforcement officers
which significantly impeded the investigation. Accordingly, Smith
is not entitled to relief on this issue.
E. Sentencing enhancement against Smith
as a leader or organizer
Smith next claims that the district court clearly erred in
finding that pursuant to U.S.S.G. § 3B1.1, Smith's sentence should
be upwardly adjusted four levels because she was the
leader/organizer of a criminal activity involving five or more
participants.
As noted above, we review the district court's application of
16
the Sentencing Guidelines to the facts for clear error. See United
States v. Valencia, 44 F.3d 269, 271-72 (5th Cir. 1995). The
applicable provision of the Sentencing Guidelines here provides for
a four-level enhancement if the defendant “was an organizer or
leader of a criminal activity that involved five or more
participants.” U.S.S.G. § 3B1.1. Application Note 2 of that
section provides that the defendant must have been the “leader,
organizer, manager or supervisor of one or more other
participants.” And application Note 4 sets forth the following
factors which the district court should consider in determining
whether a defendant had a leadership role:
factors the court should consider include the
exercise of decision making authority, the nature
of the participation in the commission of the
offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of
the crime, the degree of participation in planning
or organizing the offense, the nature and scope of
the illegal activity, and the degree of control and
authority exercised over others.
U.S.S.G. § 3B1.1, Application Note 4.
With respect to the leader/organizer enhancement, the district
court made the following factual findings, which as noted above, we
review for clear error:
[the] Court finds Defendant was an organizer of the
conspiracy to rob the bank. She provided the
necessary data for the completion of the robbery.
Were it not for her leadership and organizational
role, the offense would not have taken place. In
essence, Defendant Smith provided the necessary
impetus to take the robbery forward. She organized
everything about the robbery from the attire to be
17
worn by the robbers, when to rob the bank, the
denominations to demand, location of the money,
what to say to the victim teller, [sic] warn them
of tracking devices, [and] how to enter and exit
without the security camera recording their faces.
Smith clearly played a proactive role in this
particular case.
Smith argues that there was no evidence that she recruited
accomplices or even received a share of the proceeds, and most
importantly that there was no evidence that she exercised control
or authority over any other participant. Smith also relies heavily
on those decisions of this Court which require that a defendant be
a leader or organizer of at least one other participant, exercising
some degree of control or organizational authority in order to
qualify for the leader/organizer enhancement. See United States v.
Ronning, 47 F.3d 710, 711-12 (5th Cir. 1995) (stating that “a
leader or organizer must control or influence other people”).
Smith analogizes her case to the Ninth Circuit's reversal of
the leader/organizer enhancement given to a former bank employee
who instructed his confederates on how the ATM machine at his
former bank operated. See United States v. Harper, 33 F.3d 1143,
1145 (9th Cir. 1994). The Harper court rejected the application of
the leader/organizer enhancement based on the idea that "but for"
the defendant’s expertise the crime could not have been committed
since Harper did little more than explain how the ATM machine
worked when he was employed at the victim bank. Harper is
distinguishable in that here Smith still worked at the bank, was
18
working on the day of the robbery, had placed a call the day of the
robbery to tell her confederates when to arrive, and had told them
where to go, what to do, what to say, and how to avoid detection.
Though Smith may not have recruited her accomplices or have taken
the lion's share of the proceeds, she arguably was the most
integral part of the organization of the five co-defendants'
efforts to rob the bank, and unlike the defendant in Harper, it was
more than Smith's knowledge of bank procedures that qualified her
for a leader/organizer enhancement; it was her integral involvement
in planning, mapping out, orchestrating, and directing virtually
every aspect of the robbery, down to the smallest details, which
qualified her for leader/organizer role, and but for which the
robbery would have never taken place.
In light of the foregoing, we do not find the district court's
conclusion that Smith was the central organizer and leader to be
clearly erroneous. She exercised her control over the other
members as evidenced by their doing everything the way she directed
them to and our review of the record leads us to conclude that
there was more than enough evidence in the record to support a
finding that she influenced and controlled at least one of her
accomplices.
F. Sentencing enhancement against Smith
for the abuse of a position of trust
In her final issue claiming error as to the enhancement of her
19
sentence, Smith argues that the district court clearly erred in
finding that pursuant to U.S.S.G. § 3B1.3, Smith's sentence should
be upwardly adjusted two levels because she abused a position of
trust. Again, we review the district court's application of the
Sentencing Guidelines to the facts for clear error. See United
States v. Valencia, 44 F.3d 269, 271-72 (5th Cir. 1995). The
applicable provision of the Sentencing Guidelines here provides for
a two level enhancement if the defendant “abused a position of
public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the offense.”
U.S.S.G. § 3B1.3.
Smith's central argument here is that, as a part-time teller
at the victim Bank of America branch, she did not hold a “position”
of trust within the plain language of § 3B1.3. She concedes that
though she may have abused a duty of trust, her conduct does not
fall within the parameters of § 3B1.3.
The district court made the following factual findings with
respect to the “abuse of a position of trust” enhancement:
The Court finds Defendant abused her position of
trust. Her position at the bank and her knowledge
of the inner workings of the bank and its security
measures significantly facilitated the commission
of the offense. Smith facilitated armed bank
robbery not mere theft or embezzlement. Although
Defendant Smith was not vested with complete
discretion, she held some substantial degree of
trust. Her role in the offense is clearly a
violation of the trust that significantly
facilitated this particular crime.
20
While generally a bank teller engaged in the activity of
taking cash from the till and putting it in is not utilizing a
position of trust, the same teller certainly may engage in other
activities in the course of her job that do involve aspects of
trust which may be exploited to facilitate a crime. See United
States v. Craddock, 993 F.2d 338, 343 (3d Cir. 1993). Here, the
bank's entrusting Smith by making her privy to its internal
operating and security procedures, as those procedures relate to
robberies, and her use of such private information to facilitate a
bank robbery, is such an exploitation of the trust given a teller
by her employer bank.
Even a cursory review of the record evidence reveals that
Smith's position enabled her to abuse the trust placed in her by
the bank to keep its security procedures secret. She abused that
trust in order to significantly facilitate the commission of this
bank robbery, and based on the record, the district court's
findings are anything but clearly erroneous on this point.
G. Government's alleged violation of
the anti-gratuity statute, 18 U.S.C. § 201(c)(2)
Appellants claim that the government violated the anti-
gratuity provisions of 18 U.S.C. § 201(c)(2) by offering leniency
to co-defendants in exchange for testimony. This Circuit has
repeatedly rejected that argument. See United States v. Haese, 162
F.3d 359, 366-67 (5th Cir. 1998), cert. denied, 119 S. Ct. 1795
g:\opin\98-50829.opn 21
(1999). This claim is wholly without merit and the appellants are
not entitled to relief thereupon.
III. CONCLUSION
Having carefully reviewed the entire record of this case,
having fully considered each of the appellants' issues on appeal,
and for the reasons set forth above, we AFFIRM the convictions and
sentences of both Kimberly S. Smith and Carmelita Mitchell.
g:\opin\98-50829.opn 22