IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 18, 2008
No. 07-30238 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
TYRONE R PERKINS; SHANNON MYREON PILLOWS
Defendants - Appellants
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:06-CR-50074-6
Before JONES, Chief Judge, WIENER and CLEMENT, Circuit Judges.
PER CURIAM:*
A jury convicted Defendants-Appellants Tyrone Perkins and Shannon
Pillows each of: one count of conspiracy to commit fraud by interstate carrier,
bank fraud, and aggravated identity theft against the United States; eight
counts of fraud by interstate carrier; eight counts of bank fraud; and one count
of aggravated identity theft. The district court sentenced Perkins to sixty-one
months of imprisonment and Pillows to seventy months of imprisonment. Both
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-30238
now appeal on several grounds. For the following reasons, we affirm both
convictions and sentences.
I. FACTS AND PROCEEDINGS
Nicholas McCullen and Christopher Wilfork were stationed at Fort Polk,
Louisiana, with the 94th Basic Support Battalion, E Company. They hatched
a scheme whereby they would steal personal information and apply for auto
loans in the names of soldiers with whom they served.
Perkins worked in the Motor Pool at Fort Polk and became involved with
the scheme by providing McCullen the Social Security numbers and dates of
birth of soldiers who checked out vehicles from the Motor Pool using their
military licenses. McCullen stated at trial that he initially planned to reward
Perkins with a vehicle in exchange for stealing personal information from
thirteen soldiers, but eventually paid him only $200. Pillows was a college
student whose brother was stationed at Fort Polk. Pillows visited his brother
regularly and met McCullen during those visits. Pillows arranged for USAA
loan documents and checks to arrive at the home of his girlfriend, where Pillows
signed the documents and endorsed the checks in exchange for a percentage of
the loan value.
After being indicted, McCullen and others accepted plea agreements from
the government and testified as government witnesses against Perkins and
Pillows. Perkins and Pillows were each charged and convicted of all counts
against them. The district judge sentenced Perkins to sixty-one months of
imprisonment and Pillows to seventy months of imprisonment, sentences both
falling within the Guidelines range.
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II. DISCUSSION
Perkins and Pillows each assert four issues on appeal.
A. Perkins’s Appeal
(1) Disparity in sentencing
Perkins argues on appeal that the district court violated 18 U.S.C.
§ 3553(a)(6), which prohibits disparity in sentencing between defendants with
similar records who have been found guilty of similar conduct, when it sentenced
Perkins to sixty-one months of imprisonment, while sentencing the ringleader
of the conspiracy to only thirty-three months of imprisonment and other
defendants to nominal sentences. Perkins argues that he and McCullen are
similarly situated regarding their ages, lack of criminal histories, and
convictions for participation in the same conspiracy. Perkins points out that
McCullen invented the scheme, recruited co-conspirators, and profited the most
from the scheme, while Perkins himself only received $200 for behavior that he
characterizes as minor in comparison.
“As a result of [the Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005)], the [Sentencing] Guidelines are now advisory, and
appellate review of sentencing decisions is limited to determining whether they
are ‘reasonable.’” Gall v. United States, 128 S. Ct. 586, 594 (2007). “[The
Supreme Court’s] explanation of ‘reasonableness’ review in the Booker opinion
made it pellucidly clear that the familiar abuse-of-discretion standard of review
now applies to appellate review of sentencing decisions.” Id. (citing Booker, 543
U.S. at 260–62). This court presumes Perkins’s sentence is reasonable because
it falls within the recommended range of the Sentencing Guidelines. Rita v.
United States, 127 S. Ct. 2456, 2462–63 (2007); United States v. Williams, 520
F.3d 414, 422 (5th Cir. 2008). Because Perkins did not object at the time of
sentencing, this court reviews the district court’s actions for plain error. United
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States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc), abrogated on other
grounds by Johnson v. United States, 520 U.S. 461 (1997).
The disparity in sentencing was not unwarranted because Perkins is not
similarly situated to McCullen. First, the case against Perkins proceeded to
trial, in which he was convicted by a jury on all eighteen counts in the
indictment. McCullen, on the other hand, pled guilty only to the last two counts
of the indictment; all other charges against him were dropped. Second, because
Perkins proceeded to trial, he did not receive the benefit of a three-point
reduction on his offense level calculation for acceptance of responsibility like
McCullen. Third, the district court found that Perkins falsely testified at trial
and received a two-level enhancement in his offense level for obstruction of
justice; McCullen received no such penalty. Finally, the district court ordered
Perkins to pay $36,900 in restitution to compensate only for his theft of thirteen
soldiers’ identities, but ordered McCullen to pay over $95,975 for his primary
role in the conspiracy. Therefore, Perkins’s sentence is reasonable based upon
the district court’s proper consideration of the factors in 18 U.S.C. § 3553(a) and
the Guidelines.
(2) Offense-level enhancement for obstruction of justice
In light of the testimony of two rebuttal witnesses, the district court
enhanced Perkins’s offense level by two points after finding that Perkins lied
under oath about having full access in the Motor Pool to other soldiers’ personal
information without a supervisor’s permission and about the events surrounding
his application for a loan for a car he would have accepted as payment for
supplying stolen information. Perkins appeals this finding, arguing only that he
ultimately admitted to the prosecutor upon cross-examination that he had full
access to the information.
The Guidelines allow a district court to enhance a defendant’s base offense
level if the court finds that the defendant “willfully obstructed . . . the
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No. 07-30238
administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense.” U.S. SENTENCING GUIDELINES MANUAL
§ 3C1.1 (2007). “Where a district court enhances a defendant’s offense level on
account of an obstruction of justice, the district court’s finding of obstructive
conduct is reviewed for clear error.” United States v. Graves, 5 F.3d 1546, 1555
(5th Cir. 1993) (internal quotations omitted). A review of the record and a
comparison of the testimony of rebuttal witnesses with that of Perkins reveals
that the district court did not clearly err in finding that Perkins equivocated,
skirted issues, or lied regarding all aspects of his involvement in the scheme.
(3) Refusal to grant challenge for cause to a potential juror
During voir dire, Perkins challenged a potential juror’s service for cause,
citing the juror’s stated views on guilt by association. The district court denied
the challenge. Perkins then used all of his peremptory challenges, including one
to exclude that juror from the jury. Perkins appeals the district court’s denial
of his challenge for cause, arguing that the district court’s decision forced him
to use one of his peremptory challenges to keep that potential juror off of the
jury.
“[D]eference must be paid to the trial judge who sees and hears the
[prospective] juror,” Wainwright v. Witt, 469 U.S. 412, 426 (1985), and this court
“will only second-guess the court’s decision that a juror is unbiased if there is an
abuse of discretion,” United States v. Flores, 63 F.3d 1342, 1357 (5th Cir. 1995).
Based upon a review of the record, the district court did not abuse its discretion
in denying Perkins’s challenge for cause. Further, the Supreme Court has held
“that a defendant’s exercise of peremptory challenges pursuant to Rule 24(b) [of
the Federal Rules of Criminal Procedure] is not denied or impaired when the
defendant chooses to use a peremptory challenge to remove a juror who should
have been excused for cause.” United States v. Martinez-Salazar, 528 U.S. 304,
317 (2000).
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No. 07-30238
(4) Denial of Rule 29 judgment for motion of acquittal
At the close of the government’s case, Perkins moved for a Rule 29
judgment of acquittal, challenging the sufficiency of the evidence required to
prove Perkins’s involvement in Count 1, conspiracy to commit fraud against the
United States. On appeal, however, he argues that no testimony was presented
regarding the element of Count 18, aggravated identity theft, that required him
to “knowingly transfer, possess and use without lawful authority, a means of
identification of another person during and in relation to an enumerated
felony . . . .” He contends that none of the stipulations offered by the government
from the soldiers whose identities he had stolen to obtain fraudulent loans stated
that their identities had been used “without lawful authority.”
This court reviews de novo a denial of a Rule 29 motion for judgment of
acquittal. United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003). “The
standard for evaluating the sufficiency of the evidence is whether, after viewing
the evidence in the light most favorable to the verdict, any rational trier of fact
could have found the essential elements of the offense beyond a reasonable
doubt.” United States v. Daniel, 957 F.2d 162, 164 (5th Cir. 1992) (per curiam)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
In United States v. Herrera, this court limited the grounds upon which a
defendant may appeal the denial of a Rule 29 motion. 313 F.3d 882, 884–85 (5th
Cir. 2002) (en banc) (per curiam). On appeal, a defendant may raise only those
specific arguments he made before the district court. Id. Perkins did not seek
a judgment of acquittal for Count 18 before the district court, so our review
becomes more narrow than the usual sufficiency-of-evidence review. Our review
now “‘is limited to determining whether . . . the record is devoid of evidence
pointing to guilt.’” Id. at 885 (quoting United States v. Delgado, 256 F.3d 264,
274 (5th Cir. 2001)). A review of the record clearly shows that the jury could
have reasonably inferred that Perkins stole soldiers’ identities and used them
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No. 07-30238
without lawful authority. First, Perkins had access to the information for the
limited purpose of checking out vehicles to authorized personnel. Clearly, the
information in the Motor Pool computer was not intended to be used to obtain
loans in the names of soldiers without their knowledge or consent. Second,
McCullen testified that the identities were stolen by Perkins.
B. Pillows’s Appeal
(1) Denial of objection to testimony as hearsay
Elio Johnson testified for the government and revealed that McCullen had
recruited him to cash fraudulent loan checks. Johnson testified that he was paid
$4,200 for endorsing a $20,000 loan check. Upon cashing the check, Johnson
testified that he and McCullen returned to the barracks at Fort Polk, where
several of McCullen’s friends had gathered. Johnson identified Pillows as one
of the people gathered at the barracks. Johnson testified that, as he and
McCullen left the barracks, Pillows called McCullen back into the building to
talk. Although Johnson did not hear the conversation between Pillows and
McCullen, he testified that McCullen told him that Pillows had asked McCullen
for money and that McCullen had given it to him.
Pillows’s counsel objected to Johnson’s testimony about the conversation
between McCullen and Pillows as hearsay. The district court overruled the
objection and admitted Johnson’s testimony as statements by a co-conspirator.
Pillows’s counsel moved for a mistrial, stating that the district judge had erred
in openly characterizing the statement as that of a co-conspirator because he
“opin[ed] in front of the jury that there is a conspiracy.” The district court
denied the motion.
Defense counsel did not request that the district court instruct the jury
contemporaneously regarding its statements to the jury. The court issued a
general instruction to the jury at the close of evidence stating that the
responsibility for determining guilt or innocence belongs to the jury, which is
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No. 07-30238
free to disregard the opinions of the court. Pillows now argues that Johnson’s
statement did not qualify as the statement of a co-conspirator because it was
outside the scope of the conspiracy and, therefore, inadmissible. Pillows also
argues that the district court’s conclusory remarks in open court regarding the
existence of a conspiracy unduly prejudiced him.
We review the district court’s admission of hearsay statements made by
a co-conspirator under Rule 801(d)(2)(E) of the Federal Rules of Evidence for
abuse of discretion. United States v. Delgado, 401 F.3d. 290, 298 (5th Cir. 2005).
A review of the record indicates that the conversation between Johnson and
McCullen regarding Pillows’s involvement in the conspiracy took place
immediately after one of the fraudulent loan checks had been cashed; indeed,
part of the proceeds from that check was paid to Pillows at the time the
conversation took place. Therefore, the district court did not abuse its discretion
when it found that the statements Johnson testified to were not outside the
scope of the conspiracy, even if the statements were outside the transaction that
took place between McCullen and Pillows.1
Because Pillows did not request a contemporaneous limiting instruction
or object to the instruction given to the jury regarding its duty as the fact-finder
and obligation to disregard as evidence any opinions of the judge stated during
the trial, we review the sufficiency or lack of a limiting instruction for plain
error. See Delgado, 401 F.3d at 299. The record reveals that the district court
1
Even if the district court abused its discretion and erroneously admitted Johnson’s
testimony, “the error is still subject to the doctrine of harmless error” and “will not require
reversal if beyond a reasonable doubt the error complained of did not contribute to the verdict
obtained.” United States v. Hall, 500 F.3d 439, 443 (5th Cir. 2007) (internal quotations and
citation omitted). The government did not rely solely upon Johnson’s testimony to prove
Pillows’s involvement in the conspiracy. Indeed, McCullen’s testimony and the testimony of
several others provided ample proof of Pillows’s involvement. Therefore, any error by the
district court was, at most, harmless.
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No. 07-30238
made proper statements to the jury regarding its duties, and that any error did
not affect the outcome of the trial, given the weight of evidence against Pillows.
(2) Limitation of witness’s testimony and Sixth Amendment
confrontation rights
Jemelra Freeman testified on behalf of the government against Pillows in
exchange for possible leniency on a separate, unrelated drug charge. Freeman
testified that he had been recruited by Pillows into the conspiracy to endorse and
cash fraudulent checks, but declined to participate. On cross-examination,
Pillows’s counsel established Freeman’s prior conviction for theft, and attempted
to ask Freeman about whether he had violated his probation supervision after
serving his sentence. The district court prohibited that line of questioning.
Pillows appeals that ruling, arguing that the refusal by the district court to allow
his counsel to pursue the line of questioning related to his parole violation in
order to impeach or discredit Freeman violated his Sixth Amendment right to
confrontation and was not harmless error.
A defendant’s Sixth Amendment confrontation rights are “satisfied where
defense counsel has been ‘permitted to expose to the jury the facts from which
jurors, as the sole triers of fact and credibility, could appropriately draw
inferences relating to the reliability of the witness.’” United States v. Restivo,
8 F.3d 274, 278 (5th Cir. 1993) (quoting Davis v. Alaska, 415 U.S. 308, 318
(1974)). “A district court’s limitation of cross-examination of a witness is
reviewed for abuse of discretion,” but this review “is only invoked if the
limitation did not curtail the defendant’s Sixth Amendment right to confront
witnesses.” United States v. Hitt, 473 F.3d 146, 155–56 (5th Cir. 2006).
“Whether a defendant’s Sixth Amendment rights were violated is reviewed de
novo.” Id. at 156. To establish a violation of his Sixth Amendment confrontation
rights, Pillows need only establish that “[a] reasonable jury might have received
a significantly different impression of [the witness’s] credibility had [defense]
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No. 07-30238
counsel been permitted to pursue his proposed line of cross-examination.”
Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986). But “[w]hether the exclusion
of evidence is of a constitutional dimension depends on the [district] court’s
reason for the exclusion and the effect of the exclusion.” Kittelson v. Dretke, 426
F.3d 306, 319 (5th Cir. 2005) (per curiam).
Here, the district court was correct in refusing to allow Pillows’s counsel
to ask about Freeman’s probation violation because it does not speak to his
truthfulness, but is merely a broken promise which indicates a lack of loyalty to
commitments. See FED. R. EVID. 608.2 Further, evidence of a probation violation
is not admissible under Rule 609 because it is neither a conviction that results
in a sentence of more than one year nor an offense that has as an element “an
act of dishonesty or false statement by the witness.” FED. R. EVID. 609(a).
Because the district court’s exclusion of Johnson’s probation violation does
not amount to a constitutional violation, we review that decision for abuse of
discretion. See Hitt, 473 F.3d at 155–56. The record reveals that the district
court allowed Pillows’s counsel the opportunity to cross-examine Freeman
adequately on his criminal history and to challenge the truth of his testimony,
as permitted by the Federal Rules of Evidence. The evidence of Freeman’s prior
and current convictions were admitted and the jury was able to “appropriately
draw inferences relating to the reliability of the witness.” Restivo, 8 F.3d at 278
(internal quotations omitted). It is unlikely that the jury would have “received
a significantly different impression of [Freeman’s] credibility” if the evidence of
his parole violation had been admitted. Van Arsdall, 475 U.S. at 680. Therefore,
2
The Federal Rules of Evidence prohibit the introduction of extrinsic evidence to show
specific instances of a witness’ conduct “for the purpose of attacking or supporting the witness’
character for truthfulness, other than conviction of crime as provided in [R]ule 609.” FED. R.
EVID. 608(b). Counsel may ask about specific instances of a witness’ conduct on cross-
examination only at “the discretion of the court, if probative of truthfulness or untruthfulness.”
Id.
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No. 07-30238
the district court did not abuse its discretion in excluding evidence regarding
Freeman’s probation violation.
(3) Requiring witnesses to testify in street clothes as exclusion of
evidence
Pillows called Jermaine Greene to testify about his observations of “the
interactions between Nicholas McCullen and his fellow soldiers and Mr. Pillows”
because he had been stationed at Fort Polk. Greene was then employed as a St.
Landry Parish deputy sheriff and appeared in uniform to testify. The district
court did not allow Greene to testify in his uniform, characterizing it as an
impermissible enhancement of his credibility in violation of Rule 608(a)(2) of the
Federal Rules of Evidence. Pillows appeals the district court’s ruling.
Generally, the exclusion of evidence is reviewed for abuse of discretion.
See United States v. Fortenberry, 919 F.2d 923, 925 (5th Cir. 1990). Although
the prohibition on the wearing a uniform by an off-duty police officer not
connected to the case has not been directly interpreted to be an exclusion of
evidence by this court, we review the district court’s action for abuse of
discretion because the court equated the wearing of the uniform with
impermissible witness-bolstering in violation of Rule 608(a)(2). The record does
not support a holding that the district court abused its discretion in requiring all
witnesses to testify in plain clothes. In fact, Pillows’s defense counsel did not ask
Greene about his employment as a police officer and Pillows can point to no
prejudice that resulted from having all witnesses testify in street clothes.
(4) Limitation of witness’s testimony and Sixth Amendment right to
compulsory process
During Greene’s testimony regarding the events he observed while
stationed at Fort Polk, Pillows’s counsel attempted to ask him about McCullen’s
attendance at morning formations. The government objected, arguing that the
line of questioning represented an improper attempt to introduce McCullen’s
prior bad acts, in violation of Rule 404(b) of the Federal Rules of Evidence.
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No. 07-30238
Defense counsel responded, stating that he was attempting to rebut the
government’s theory that Pillows was pivotal to the conspiracy because
McCullen was often confined to the base and needed a civilian to handle matters
that he could not handle from there. The district court required that Greene be
able to state from firsthand knowledge the reason for McCullen’s absence,
confining his testimony to specific dates and times that are tied to the
indictment to avoid impermissible attempts to introduce prior bad acts.
Pillows argues that, although Greene was present and allowed to testify
on his behalf, the exclusion of parts of his testimony under the Federal Rules of
Evidence is tantamount to the denial of his right to compulsory process.
However, “the Sixth Amendment does not by its terms grant to a criminal
defendant the right to secure the attendance and testimony of any and all
witnesses: it guarantees him ‘compulsory process for obtaining witnesses in his
favor.’” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (quoting
U.S. CONST. amend. VI). To enjoy his right to compulsory process, the defendant
must “at least make some plausible showing of how [the witness’s] testimony
would [be] both material and favorable to his defense.” Id.
It is not clear that Greene’s testimony was material and favorable to
Pillows’s defense. Without proper foundation, which was not provided, Greene
could only testify as to his general knowledge of the status and level of
McCullen’s supervision and the alleged absences from morning formations.
Because the district court’s exclusion of Greene’s testimony does not amount to
a constitutional violation, we review the district court’s decision for abuse of
discretion. See Hitt, 473 F.3d at 155–56. The record reveals that multiple
witnesses other than McCullen testified regarding Pillows’s specific role in the
conspiracy. The fact that McCullen was inexcusably absent from morning
formations would not have refuted that testimony. Therefore, the district court
did not abuse its discretion in excluding Greene’s testimony.
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III. CONCLUSION
We AFFIRM the convictions and the sentences imposed by the district
court.
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