United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 28, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_____________________
No. 01-21296
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
WALTER LYNELL STAPLETON, WAYLAND EARL CRISWELL
Defendants - Appellants
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
No. H-01-CR-145-3
_________________________________________________________________
Before KING, Chief Judge, and REAVLEY and STEWART, Circuit
Judges.
PER CURIAM:*
After a jury trial resulting in guilty verdicts for each of
the two defendant-appellants, judgments of conviction for aiding
and abetting in the commission of bank robbery were entered by the
district court. On appeal, we affirm the judgments of conviction
and sentences for both defendants.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
I.
FACTUAL and PROCEDURAL BACKGROUND
Along with four other individuals – Toniea Thompson, Charles
Whiting, Zebadiah Comb, and Sidney Tatum – the two defendant-
appellants, Wayland Earl Criswell and Walter Lynell Stapleton, were
named in an indictment returned on February 22, 2001. The
indictment charged that on April 3, 1997, the six co-defendants
took, by force, violence and intimidation, $39,925 of federally
insured deposits from the First State Bank of Livingston in
Shepard, Texas (the “Shepard bank”) in violation of 18 U.S.C.
§§ 2113(a) & (2) (“bank robbery”).1 Thompson, Whiting and Comb
pled guilty and, pursuant to their plea and cooperation agreements,
testified on behalf of the government in the case against Criswell
and Stapleton. At the time of trial, all three of these co-
defendants were awaiting sentence; co-defendant Tatum was a
fugitive.
The undisputed facts presented at trial reveal that at
approximately 2:55 p.m., on April 3, 1997, four African-American
adults wearing black bandanna masks, caps of some sort, work
gloves, long-sleeve windbreakers, dark pants and running shoes,
1
In addition to the bank robbery count (count 1), which
all co-defendants were charged with, Toniea Thompson was charged
(in count 2) with possession of a firearm in furtherance of the
bank robbery in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and
Whiting, Stapleton and Comb were charged (in count 3) with
possession of a firearm in furtherance of bank robbery in
violation of 18 U.S.C. § 924(c)(1)(A)(i). The district court
granted Stapleton’s unopposed motion for judgment of acquittal on
count 3. Count 1 is thus the only count relevant to this appeal.
2
entered the Shepard bank, a member of the Federal Deposit Insurance
Corporation, and fired two shots at the bank camera near the doors.
While two of the robbers held the customers inside the bank at
gunpoint, the remaining two leapt over the counter behind the
teller area and emptied the money contained in the drawers into
black duffle bags. After approximately three minutes, the four
individuals exited the bank and drove off in a stolen Suburban that
had been left running by the bank entrance. A clip of the bank
video-tape of the robbery introduced into evidence at trial shows
four disguised persons were involved in the bank robbery.
At trial, largely through the testimony of co-defendants
Whiting, Thompson and Comb, and through the testimony of Bryan
Thorn, a friend of several of the co-defendants who was convicted
of participating in a bank robbery in Dayton, Texas (with Whiting,
Thompson and, allegedly, Criswell) that occurred a month after the
Shepard bank robbery, the government alleged that Criswell came up
with the idea to rob the bank, surveyed the bank with Thompson, and
helped recruit several members of the conspiracy. Further, the
government alleged that, on the date in question, Criswell (with
Tatum) drove his own car to the bank ahead of Stapleton, Whiting,
Thompson and Comb and was responsible for watching the perimeter of
the bank during the robbery. As alleged, Stapleton, Whiting,
Thompson and Comb went into the bank, and while Thompson and Comb
held the customers at gunpoint, Stapleton and Whiting jumped over
the teller counter and collected the money. All six co-defendants
later met at Criswell’s house to split the money – Stapleton,
3
Whiting, Thompson and Comb allegedly received between $6-11,000
each, while Criswell and Tatum allegedly received between $2-4,000
each.
On August 16, 2001, after a four-day jury trial, the jury
returned a verdict of guilty for both defendants. Judgments of
conviction were thereafter entered by the district court. The
judgments sentenced both defendants to 140-month imprisonment terms
and to 3-year supervised release terms. The defendants were also
ordered to pay $35,925 in restitution and $100 in special
assessment. From these judgments, the defendants raise several
points of alleged error.
II.
ANALYSIS OF ALLEGED ERROR
A. Prosecutorial Misconduct
Both Stapleton and Criswell allege several instances of
prosecutorial misconduct. Specifically, they contend that improper
arguments by the Assistant United States Attorneys (“AUSA”) Michael
Wynne and Jay Hileman prejudiced their substantial rights.
On review of a charge of prosecutorial misconduct, this court
follows a two-step test, under which it must initially decide
whether the prosecutor made an improper remark. United States v.
Fields, 72 F.3d 1200, 1207 (5th Cir. 1996). If it concludes that
an improper remark was made, it must then consider whether the
improper remark “taken as a whole in the context of the entire
case, prejudicially affected the substantial rights of the
4
defendant.” United States v. Munoz, 150 F.3d 401, 414-15 (5th Cir.
1998) (internal quotation omitted). In resolving this matter, the
court assesses several factors: (1) the magnitude of the
statement’s prejudice, (2) the effect of any cautionary
instructions given, and (3) the strength of the evidence of the
defendant’s guilt. Id. (citing United States v. Tomblin, 46 F.3d
1369, 1389 (5th Cir. 1995)).
1. AUSA Hileman’s allegedly improper comments
Neither defendant objected to Hileman’s comments at trial; the
alleged error is thus reviewed for plain error. United States v.
Taylor, 210 F.3d 311, 318 (5th Cir. 2000). “An error is plain if
it affects the defendant’s substantial rights.” Id. at 311 (citing
United States v. Goff, 847 F.2d 149, 162 (5th Cir. 1988). Further,
“under this standard, [the court] should not exercise [its]
discretion to correct a forfeited error unless the error ‘seriously
affects the fairness, integrity or public reputation of the
proceedings.’” United States v. Smith, 203 F.3d 884, 888 (5th Cir.
2000) (quoting United States v. Gaudin, 515 U.S. 506, 527 (1995)).
To determine if plain error occurred, the court must view the
statements in the context of the entire record. United States v.
Young, 470 U.S. 1, 12 (1985). Taken in context, the statements by
AUSA Hileman relating to the trial testimony of Thompson are not
improper and do not roam beyond the record because the statements
specifically relate to evidence that was adduced at trial.
5
Hileman’s statements are thus not improper, much less “clear” or
“obvious” errors. United States v. Burton, 126 F.3d 666, 674 (5th
Cir. 1997).
2. Wynne’s allegedly improper comments
The defendants also contend that improper comments made by
AUSA Wynne during his closing argument were designed to cloak his
witnesses in the protective mantle of the United States government.
The defendants objected to the allegedly improper comments by
Wynne;2 we thus apply harmless error review, under which, reversal
is appropriate if the prosecutor’s remarks exceeded permissible
bounds and the error violated the defendants’ substantial rights.
Young, 470 U.S. at 12 n.10; United States v. Gallardo-Trapero, 185
F.3d 307, 320 (5th Cir. 1999).
Taken in context, Wynne’s initial comment merely responded to
the defendants’ accusations that he dumped untrustworthy witnesses
on AUSA Hileman in favor of working only with trustworthy witnesses
and was not improper.
Assuming Wynne’s further comment that he stood behind every
witness that testified is improper in that he “invoked the aegis of
a governmental imprimatur” to bolster the government’s witnesses,
id., taken in context, the remark did not prejudicially affect the
substantial rights of Stapleton and Criswell. Given what the
2
Only Stapleton objected to Wynne’s comments. However,
before trial, the district court ruled that where both defendants
had an identity of interest, the court would deem objections made
by one to apply to both defendants.
6
government refers to as the “strident advocacy” on both sides of
this case, the single comment by Wynne was partially overshadowed
by the defense allegations that Wynne was disassociating himself
from the “untrustworthy” witnesses. United States v. Fields, 72
F.3d 1200, 1207 (5th Cir. 1996). Further, the cautionary
instructions given here went far in mitigating any prejudicial
effect because the instructions were made specifically regarding
this comment and directly after the comment was made.3 See, e.g.,
United States v. Duffaut, 314 F.3d 203, 210 (5th Cir. 2002).
Finally, the strength of the evidence of guilt here is strong.
That the evidence (aside from the testimony of participating
witnesses) is largely circumstantial does not change this fact.
The trial consumed four days and involved over twenty witnesses.
In addition to the testimony of the co-defendants and Thorn, the
government proffered corroborating testimony from bank employees,
witnesses, and several law enforcement agents who were involved in
the investigation of the robbery. We conclude that the defendants’
3
The district court sustained Stapleton’s objection as to
this comment, and immediately instructed the jury in the
following manner:
Ladies and gentlemen. It is up to you to decide
whether you credit the testimony of any one or all of
the witnesses or any part of the testimony. What the
government thinks is completely not your concern. His
comment is stricken, ladies and gentlemen, and the
Government attorney is instructed that your views about
the testimony, in terms of your personal beliefs or
whatever, are not to be discussed.
7
substantive rights were not prejudiced by Wynne’s comments. See,
e.g., Gallardo-Trapero, 185 F.3d at 323.
B. Sufficiency of the Evidence to Sustain the Jury Verdict
against Stapleton
Stapleton contends that the evidence is insufficient to
sustain the verdict against him because no non-participating
witness identified him at the scene and no physical evidence placed
him near the bank. Regarding his sufficiency challenge, Stapleton
preserved this court’s usual standard of review for such claims by
moving for a judgment of acquittal at the close of the evidence.
FED. R. CRIM. P. 29(a); United States v. Pankhurst, 118 F.3d 345, 351
(1997). Therefore, this court must view the evidence and all
inferences to be drawn from it in the light most favorable to the
verdict to determine if a rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.
United States v. Broussard, 80 F.3d 1025, 1030 (5th Cir. 1996).
To convict a defendant of bank robbery under 18 U.S.C.
§ 2113(a), the government must prove that (1) an individual or
individuals (2) used force and violence or intimidation (3) to take
or attempt to take (4) from the person or presence of another (5)
money, property, or anything of value, (6) belonging to or in the
care, custody, control, management, or possession (7) of a bank,
credit union, or savings and loan association. United States v.
McCarty, 36 F.3d 1349, 1357 (5th Cir. 1994). A person who aids or
abets the commission of a crime is punishable as a principal. 18
U.S.C. § 2. To prove aiding and abetting, the government must show
that the defendant (1) associated with the criminal venture, (2)
8
participated in the venture, and (3) sought by action to make the
venture succeed. United States v. Salazar, 66 F.3d 723, 729 (5th
Cir. 1995).
From the totality of the evidence, a jury could reasonably
conclude that Stapleton was the fourth individual who entered the
bank with Whiting, Thompson and Comb. While no non-participating
witnesses could positively identify Stapleton as being one of the
four persons who entered the bank to rob it (likely because these
four individuals carefully concealed their identity behind caps and
bandannas), Stapleton’s participation in the robbery was
established by the testimony of co-defendants Whiting, Thompson and
Comb and by Thorn. Each identified him as the fourth person who
entered the bank and as one of the persons who jumped over the
counter to retrieve the money. He was also identified by his co-
defendants as one of the persons who purchased bandannas, gloves
and other items necessary for the crime at the grocery store. We
must “accept credibility choices that support the jury’s verdict
and may not reweigh the evidence.” United States v. Guerrero, 169
F.3d 933, 939 (5th Cir. 1999).
C. Pre-Indictment Delay
In the district court, Stapleton filed a motion to dismiss the
indictment due to a pre-indictment delay of four years between the
date of the offense, April 3, 1997, and the date the indictment was
filed, February 22, 2001.
On review, we uphold the district court’s factual findings
that no actual prejudice resulted from the delay and that no bad
faith purpose on the part of the government was manifest in the
9
delay as not clearly erroneous. See, e.g., United States v.
Jimenez, 256 F.3d 330, 345 (5th Cir. 2001) (reviewing the district
court’s factual finding of prejudice for clear error and finding no
due process violation in a five-year pre-indictment delay); United
States v. Crouch, 84 F.3d 1497, 1500 (5th Cir. 1996) (en banc).
D. Minor or Minimal Participant Reduction
United States Sentencing Guidelines Manual (“USSG”) § 3B1.2,
entitled “Mitigating Role” controls reductions in a defendant’s
base offense level for minimal or minor participation in an
offense. USSG § 3B1.2(a) states that “[i]f the defendant was a
minimal participant in any criminal activity, decrease by 4
levels.” USSG § 3B1.2(b) states that “[i]f the defendant was a
minor participant in any criminal activity, decrease by 2 levels.”
The guidelines define “minimal” participant as any participant
“whose role is less culpable than the average participant” and “is
plainly among the least culpable of those involved in the conduct
of the group.” UNITED STATES SENTENCING GUIDELINES § 3B1.2, cmt. 4
(2001). The guidelines define “minor” participant as any
participant “whose role is less culpable than the average
participant but whose role could not be described as minimal.” Id.
cmt. 5. The question of participation status is a factual question
reviewable by this court under the clearly erroneous standard.
United States v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995).
We find sufficient evidence from which the district court
could conclude that Stapleton did not qualify as a “minor” or
“minimal” participant. In addition to evidence that Stapleton was
one of the four individuals who actually entered the bank, then
10
jumped over the counter, stuffed money in duffel bags and fled the
scene with the money, the evidence reflects that he, Whiting,
Thompson and Comb were paid substantially more money than the other
two co-defendants. See, e.g., United States v. Leal Mendoza, 281
F.3d 473, 477 (5th Cir. 2002); United States v. Tremelling, 43 F.3d
148, 153 (5th Cir. 1995).
E. Extraneous Offense Evidence
Pre-trial, Criswell filed a motion in limine requesting that
the government “approach the bench to obtain a ruling on the
admissibility or permissibility” before introducing (1) evidence of
Criswell’s prior criminal convictions, (2) evidence of his prior
wrongs, crimes or acts, (3) evidence that he had ever been
incarcerated, and (4) evidence that he had ever used, possessed,
bought or sold drugs. The district court preliminarily granted
these requests. At the pre-trial conference, Criswell’s counsel
also specifically requested that Whiting be precluded from
testifying that the house where the six co-defendants met after the
robbery was “Wayland’s dope house.” While the district court
stated that it recognized this as a “sensitive point,” it did not
make a preliminary ruling on the issue.
Criswell argues that the government violated FED. R. EVID. 402,
403 and 404(b) in offering “irrelevant, prejudicial, and plainly
inadmissible” evidence in violation of the district court’s order.
The district court struck Whiting’s testimony regarding
Criswell’s “crack house” and testimony regarding Criswell being on
parole. In both instances, the jury was given a specific
instruction regarding the improper nature of the evidence proffered
11
by the government and was instructed that it could not consider the
evidence in making their verdict determination. As the references
to Criswell’s “crack house” and Criswell being on parole were the
only references of their kind during the entire four-day trial and
were not the subject of further testimony or argument during trial,
we find that the district court’s instructions cured any resulting
prejudice. A new trial is not warranted.
Regarding the government’s use of Rule 404(b) evidence of
Criswell’s involvement in the Dayton bank robbery, because Criswell
failed to object to Thorn’s testimony or the government’s use of
this evidence at trial, the district court’s admission of this
evidence is subject to plain-error review. Duffaut, 314 F.3d at
209.
This court has established a two-part test to determine the
admissibility of Rule 404(b) evidence, under which the extrinsic
offense evidence must (1) be relevant to an issue other than the
defendant’s character and (2) must possess probative value which is
not substantially outweighed by undue prejudice. United States v.
Bentley-Smith, 2 F.3d 1368, 1377 & n.11 (5th Cir. 1993). As to the
first element, Criswell’s plea of not guilty and the evidence
adduced at trial placed Criswell’s identity at issue. Thus,
evidence of Criswell’s participation in a similar crime (and
evidence that he played a like role in this crime) went to prove
identity, not to prove the character of Criswell in order to show
action in conformity therewith. See Duffaut, 314 F.3d at 209
12
(“Similarity of the extrinsic offense to the offense charged is the
standard by which relevancy is measured under Rule 404(b).”).
Regarding the second element, as this court “consistently ha[s]
held that evidence of a defendant’s prior conviction for a similar
crime is more probative than prejudicial,” we hold that the
admission of the Rule 404(b) evidence here was not improper.
Taylor, 210 F.3d at 318; see also United States v. Leahy, 82 F.3d
624, 637 (5th Cir. 1996) (noting that although some danger of
prejudice is always present, “exclusion of extrinsic evidence based
on its prejudicial effect should occur only sparingly”).
Furthermore, in its charge to the jury, the court instructed that
the jury was “here to decide whether the government has proved
beyond a reasonable doubt that the defendant is guilty of the crime
charged,” and that “[t]he defendant is not on trial for any act,
conduct, or offense not alleged in the indictment.” This charge
mitigated any prejudicial effect of the evidence of Criswell’s
involvement in the Dayton bank robbery.
F. Cumulative Error
Finally, Criswell argues that the cumulative effect of error
here requires a new trial. Although Criswell does not point to
errors that should be aggregated, even assuming that error is
manifest in his references to prosecutorial misconduct and the
district court’s admission of extraneous offense evidence, these
few instances of misconduct, taken together, simply do not yield a
13
denial of the constitutional right to a fair trial. See, e.g.,
United States v. Canales, 744 F.2d 413, 430-31 (5th Cir. 1984).
CONCLUSION
Upon careful consideration of this case, we AFFIRM the
judgments of conviction and sentences of the defendants.
14