United States v. Laury

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________

NO. 93-9007
Summary Calendar
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

KERRY DEWAYNE LAURY, Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the
Northern District of Texas
_________________________________________________________________

(March 24, 1995)

Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM:

Defendant-Appellant Kerry Dewayne Laury ("Laury") appeals his

conviction and sentence on five counts of obstruction of commerce

by robbery in violation of 18 U.S.C. § 1951(a) and 2 ("Hobbs Act"),

and five counts of using and carrying a firearm during a crime of

violence in violation of 18 U.S.C. § 924(c)(1) and (2). We affirm.

BACKGROUND

On November 1, 1992, Laury was arrested and charged under

Texas law for armed robbery of a Minyard's grocery store in Dallas.

On January 6, 1993, a federal grand jury returned an indictment,

charging Laury and two co-defendants with two counts of violating

the Hobbs Act by robbing grocery stores, and two counts of using a

firearm during and in relation to the robberies. The indictment

was superseded several times, eventually charging six separate
robberies as Hobbs Act violations, and six corresponding use-of-a-

firearm counts. The case was tried before a jury, and the jury

found Laury guilty of ten out of the twelve offenses charged. The

trial court subsequently sentenced Laury to a total of 1071 months'

imprisonment, three years supervised release, $13,104.00 in

restitution, and a $500.00 special assessment.

DOUBLE JEOPARDY

Laury argues that his convictions under §§ 924(c)(1) and 1951

for a single robbery violate the Double Jeopardy Clause. Laury,

however, failed to raise this issue in the district court. Under

FED. R. CRIM. P. 52(b), we may correct forfeited errors only when the

appellant shows the following factors: (1) there is an error; (2)

that is clear or obvious; and (3) that affects his substantial

rights.1 If these factors are established, the decision to correct

the forfeited error is within the sound discretion of the Court,

and will not be exercised unless the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.2

We find that Laury cannot demonstrate error, plain or

otherwise. This Court has held that multiple convictions under

§§ 924(c)(1) and 1951 for a single robbery do not violate double

jeopardy. United States v. Martinez, 28 F.3d 444, 445-46 (5th

Cir.), cert. denied, ___U.S.___, 115 S.Ct. 281, 130 L.Ed.2d 197

1
United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.
1994) (en banc) (citing United States v. Olano, ___U.S.___, 113
S.Ct. 1770, 1776-79, 123 L.Ed.2d 508 (1993)), cert. denied 63
U.S.L.W. 3643 (U.S. Feb. 27, 1995) (No. 94-7792).
2
Olano, 113 S.Ct. at 1778.

2
(1994). To the extent that Laury argues that United States v.

Dixon3 overrules Missouri v. Hunter4, we find the argument

irrelevant to the issue before us in this case. In Hunter, the

Supreme Court assumed that the multiple convictions failed the

Blockburger5 "same elements" test, but determined that if there was

a clear indication of legislative intent to impose cumulative

punishments, the multiple punishments did not violate double

jeopardy.6 In Martinez, the Court determined that multiple

convictions for §§ 924(c)(1) and 1951 did not violate the

Blockburger test, and therefore Hunter was not controlling.7

GOVERNMENTAL MISCONDUCT

Laury argues that the district court improperly denied his

motion to dismiss the indictment. He contends that following his

arrest on federal charges in January 1993, FBI Agent Paul Shannon

("Agent Shannon") questioned him in violation of his Fifth

Amendment right to due process and Sixth Amendment right to

effective assistance of counsel, and that this conduct constituted

outrageous governmental misconduct which could be remedied only by

dismissing the indictment. Laury argues that suppression of the

statement obtained as a result of Agent Shannon's interrogation was

3
___U.S.___, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).
4
459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).
5
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180,
76 L.Ed. 306 (1932).
6
459 U.S. at 368-69.
7
28 F.3d at 446.

3
an insufficient remedy because the Government could use the

statement to impeach him if he testified.

Laury was initially arrested on November 1, 1992, and charged

in state court with two counts of robbery involving the October 4

and November 1, 1992 robberies. On November 4, 1992, Agent Shannon

interrogated Laury, Gary Watson ("Watson") and Derrick Laury,

Laury's two co-defendants. On November 11, 1992, attorney Martin

Smith ("Smith") was hired to represent Laury on the state charges,

who continued to represent Laury until January 20, 1993, when the

state charges were dropped.

On January 14, 1993, Laury was arrested by Agent Shannon and

charged in federal court with two Hobbs Acts violations and two

counts of using and carrying a firearm in relation to a crime of

violence, arising from the October 4 and November 1, 1992

robberies. At the time of Laury's arrest, Agent Shannon gave Laury

his Miranda warnings and Laury verbally waived his right to

counsel. Agent Shannon knew that Laury was on bond from the state

charges and that he was represented by counsel on those charges,

but he wanted to question Laury about his involvement in the

additional robberies. Assistant United States attorney Paul

Macaluso ("Macaluso") was not informed, nor did he instruct anyone

to interrogate Laury at the time of his arrest.

Laury moved to dismiss the indictment arguing that Agent

Shannon's conduct violated his Fifth and Sixth Amendment rights to

counsel. Following a hearing, the district court found that

Macaluso did not act improperly, but that Agent Shannon violated

4
Laury's Sixth Amendment rights. The district court determined that

the appropriate remedy was to suppress the statement.

Fifth Amendment

The Fifth Amendment guarantees a defendant the right to

counsel during a custodial interrogation.8 However, the defendant

must expressly invoke his Fifth Amendment right. Laury orally

waived his Fifth Amendment right to counsel, and his Sixth

Amendment right to counsel on the state charges was insufficient to

invoke his Fifth Amendment right on the federal charges.9

Sixth Amendment

The Sixth Amendment right to counsel attaches upon the

initiation of judicial proceedings.10 Because Laury was under

indictment at the time of his arrest, his Sixth Amendment right to

counsel had attached to the charged offenses.11 Once the Sixth

Amendment right to counsel attaches, law enforcement officials may

8
United States v. Carpenter, 963 F.2d 736, 739 (5th Cir.),
cert. denied, ___U.S.___, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992).
9
Carpenter, 963 F.2d at 739-40.
10
United States v. Cruz, 22 F.3d 96, 98 n.7 (5th Cir.),
cert. denied, ___U.S.___, 115 S.Ct. 280, 130 L.Ed.2d 196 (1994).
11
The Sixth Amendment applies only to the specific charged
offense. Carpenter, 963 F.2d at 739. If however, the charges to
which the Sixth Amendment right has been invoked and the new
charges are "inextricably intertwined," the Sixth Amendment right
may extend to the new charges. Id. at 740. See United States v.
Cooper, 949 F.2d 737, 743-44 (5th Cir. 1991), cert. denied,
___U.S.___, 112 S.Ct. 2945, 119 L.Ed.2d 569 (1992). In this
case, the federal charges and state charges were identical, and
therefore the invocation of the Sixth Amendment right on the
state charges was sufficient to invoke the right on the federal
charges.

5
not initiate interviews in connection with the charged offense.12

"Cases involving Sixth Amendment deprivations are subject to

the general rule that remedies should be tailored to the injury

suffered from the constitutional violation and should not

necessarily infringe on competing interests." United States v.

Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981).

If a Sixth Amendment violation occurs, generally the remedy is to

suppress the evidence, not to dismiss the indictment. Id. at 365.

In the absence of demonstrable prejudice, or a substantial threat

of prejudice, dismissal of the indictment is plainly inappropriate,

even if the violation was deliberate.13

Laury argues that the suppression of the January 14, 1993

statement was insufficient to remedy the Sixth Amendment violation

because the Government would have been able to use the uncounseled

statement to impeach his testimony if he had taken the stand in his

defense. It is well established that the prosecution may use a

statement obtained in violation of the Sixth Amendment to impeach

a defendant's false or inconsistent testimony.14 We find Laury

cannot demonstrate prejudice warranting dismissal because the

Government would have been able to impeach him with the statement.

12
Carpenter, 963 F.2d at 734.
13
See United States v. Rodriguez, 948 F.2d 914, 916 (5th
Cir. 1991), cert. denied, ___U.S.___, 112 S.Ct. 2970, 119 L.Ed.2d
590 (1992).
14
Bradford v. Whitley, 953 F.2d 1008, 1010-11 (5th Cir.),
cert. denied, ___U.S.___, 113 S.Ct. 91, 121 L.Ed.2d 53 (1992).

6
 CONTINUANCE

In a related argument, Laury contends that the district court

abused its discretion by denying his motion for a continuance.

Laury argues that the continuance was necessary to secure the

presence of Smith, his state attorney, and Fred Talkington

("Talkington"), Derrick Laury's attorney, to establish the

continuing harm caused by Agent Shannon's misconduct.

We review the district court's denial of a motion for a

continuance for an abuse of discretion. United States v. Brito-

Hernandez, 996 F.2d 80, 83 (5th Cir. 1993). To obtain a reversal

the defendant must demonstrate "serious prejudice." Id.

Laury contends that Smith would have established that Macaluso

knew Laury was represented by counsel on the state charges, and

that Talkington would have testified that Derrick Laury pleaded

guilty at least in part because of Laury's January 14, 1993

statement. We find that Laury cannot demonstrate "serious

prejudice" because Smith was not present to testify. Agent

Shannon, who conducted the interrogation, testified that he knew

Laury was represented by counsel, and the district court determined

that a Sixth Amendment violation occurred and suppressed the

statement. Smith's testimony would only have been cumulative of

the evidence presented and would not have altered the result.

Cecil A. Ray ("Ray"), counsel for Watson, testified that

Watson's decision to plead guilty was not motivated by Laury's

statements. Ray stated that he had access to all of the

defendants' written statements, including Derrick Laury's

7
inculpatory statements, and was unaware that Laury had made an oral

statement on January 14, 1993. There is no evidence in the record

to support Laury's contention that the Government told Derrick

Laury, but not Watson, about Laury's statements, or that Derrick

Laury would have been more influenced by Laury's statements than

would Watson. Additionally, Watson, who was not influenced by

Laury's statements, also testified against Laury.

SUFFICIENCY OF THE EVIDENCE

Laury argues that there is insufficient evidence to support

his convictions in counts 4, 6, and 8. He contends that the

evidence is insufficient to establish that he knew that his

codefendants were carrying a firearm during the commission of those

robberies.

Laury failed to move for a judgment of acquittal at the close

of all the evidence, and neither the pleadings in the record nor

the docket sheet reflect that any post-trial motions for acquittal

were filed by Laury. Therefore, the sufficiency-of-the-evidence

claim is reviewable only to determine whether there was a manifest

miscarriage of justice.15 United States v. Shaw, 920 F.2d 1225, 1230

(5th Cir.), cert. denied, 500 U.S. 926, 111 S.Ct. 2038, 114 L.Ed.2d

15
In a recent decision, this Court questioned whether the
"miscarriage of justice" standard is distinguishable from the
"sufficiency of evidence" standard employed if a defendant does
make a motion for acquittal at the conclusion of the trial. See
United States v. Pennington, 20 F.3d 593, 597 n.1 (5th Cir.
1994). However, because only the Court sitting en banc can
reverse precedent, Laury's insufficiency claim must be reviewed
under the "miscarriage of justice" standard. See United States v.
Sias, No. 93-5475, at 3-4 & n.1 (5th Cir. Sept. 30, 1994)
(unpublished).

8
122 (1991). "Such a miscarriage of justice would exist only if the

record is devoid of evidence pointing to guilt, or . . . because

the evidence on a key element of the offense was so tenuous that a

conviction would be shocking." United States v. Pierre, 958 F.2d

1304, 1310 (5th Cir.) (en banc) (internal quotations and citations

omitted), cert. denied, ___U.S.___, 113 S.Ct. 280, 121 L.Ed.2d 207

(1992).

In counts 4, 6, and 8, Laury was convicted of aiding and

abetting the use and carrying of a firearm during the October 3, 4,

and 18, 1992 robberies. To establish an offense under § 924(c)(1),

the Government must prove: "(1) that the defendant knowingly used

or carried a firearm, and (2) the use or carrying of the firearm

occurred during and in relation to a crime of violence." United

States v. Harris, 25 F.3d 1275, 1279 (5th Cir.), cert. denied,

___U.S.___, 115 S.Ct. 458, 130 L.Ed.2d 366 (1994). To prove aiding

and abetting the Government must show that Laury "(1) associated

with the criminal enterprise; (2) participated in the venture; and

(3) sought by action to make the venture succeed." Id.

Derrick Laury testified that before the October 3, 1992

robbery Laury told him (Derrick Laury) that he did not have to

worry about a gun because Watson would do everything. Laury gave

a written statement in which he admitted knowing that Watson was

carrying a firearm during the October 4, 1992 robbery. Watson and

Derrick Laury used a weapon during each robbery, and Watson

testified that all of the robberies were conducted in the same way.

From this evidence the jury could infer that Laury knew that Watson

9
and Derrick Laury had a firearm during the robberies. Therefore,

we find the evidence is sufficient to support his convictions on

counts 4, 6, and 8.

JURY INSTRUCTIONS

Laury also argues that the district court improperly refused

to give six requested jury instructions. The trial judge has

substantial latitude in formulating the jury charge, and we review

the district court's refusal to give a requested jury instruction

for an abuse of discretion. United States v. Aggarwal, 17 F.3d 737,

745 (5th Cir. 1994). The Court may reverse only if the requested

instruction "(1) is substantially correct; (2) was not

substantially covered in the charge actually given; and

(3) concerns an important point such that failure to give it

seriously impaired the defendant's ability to effectively present

a given defense." Id. We will reverse only if the defendant was

improperly denied an opportunity to convey his case to the jury.16

Laury introduced alibi evidence, and he requested that the

district court give an requested jury instruction. The district

court did not give the alibi instruction, but did instruct the jury

that the jury was required to weigh the evidence and judge the

credibility of the witnesses. Laury emphasized the alibi evidence

during closing argument. Although argument alone cannot suffice

for jury instruction, a determination of the adequacy of the charge

16
United States v. Hudson, 982 F.2d 160, 162 (5th Cir.),
cert. denied, ___U.S.___, 114 S.Ct. 100, 126 L.Ed.2d 67 (1993).

10
must be made in the context of the full trial.17 The general jury

instruction, taken with Laury's closing argument, was sufficient to

place the alibi defense before the jury, and the district court did

not commit reversible error by failing to give the requested

instruction.

Laury also requested that the district court instruct the jury

on substance abuse by a witness. Laury introduced evidence at

trial that Watson had a substance abuse problem. Although the

district court did not give the requested instruction, once again

the jury was given the general credibility/weight of the evidence

instruction, and Laury was able to argue the point to the jury.

The argument was presented to the jury, and Laury cannot

demonstrate reversible error.18

Laury requested jury instructions on impeachment by prior

inconsistent statements; co-defendant plea agreements; single

defendant, multiple counts; and aiding and abetting.19 Although the

district court did not use the language requested, the court did

instruct the jury on each of these theories. Therefore, we find

that the requested instructions were "substantially covered" in the

17
United States v. Ivey, 949 F.2d 759, 765 (5th Cir.
1991), cert. denied, ___U.S.___, 113 S.Ct. 64, 121 L.Ed.2d 32
(1992).
18
See Hudson, 982 F.2d at 162; Ivey, 949 F.2d at 765.
19
The Government argues that this Court should review the
aiding and abetting instruction for plain error because Laury did
not object to the instruction in the district court. However,
the district court stated for the record that Laury objected to
the charge insofar as it was different from his requested charge.
His objection was preserved for appeal.

11
charge and there was no reversible error.

CONCLUSION

For the reasons articulated above, Laury's conviction and

sentence are AFFIRMED.

12