UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 95-50612
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HASHIM ESTEBAN THOMAS, JULIUS RAY SEPHUS, JR.
AND STEVEN LEE THOMAS, II,
Defendants-Appellants.
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Appeal from the United States District Court
for the Western District of Texas
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June 10, 1996
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:1
Hashim Esteban Thomas, Julius Sephus, and Steven Lee Thomas,
II, appeal their convictions for bank robbery, use of a firearm
in connection with the robbery (Sephus and Steven Thomas), and
carjacking (Sephus). We AFFIRM in part, REVERSE in part and
RENDER.
1
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
I.
Hashim Thomas, Julius Sephus, and Steven Thomas conspired
with 9 other individuals2 to rob the Normangee State Bank in
Normangee, Texas. The heavily armed group of 12 traveled from
Houston, Texas, to Normangee in three cars and made final plans
for the robbery at Hopewell Cemetery, just outside Normangee. As
they prepared for the robbery, the group distributed gloves, ski
masks, bandannas, and bullet proof vests amongst themselves.
The group twice traveled from the cemetery into town only to
discover the bank was not yet open. The group, frustrated that
the bank was not yet open, gathered again at the cemetery and
some of them went to a convenience store to buy beer. Steven
Thomas argued that they should rob the convenience store and kill
everyone inside so there would be no witnesses. No one would
help Steven rob the store and the group ultimately agreed to rob
the bank as originally planned.
The third time the group arrived at the bank, it was open.
Steven Thomas, armed with a pistol, entered the bank first.
Several other members of the group, including Hashim Thomas and
Sephus, entered the bank after Thomas. Two of the getaway cars
left the scene during the robbery; consequently, when the group
exited the bank, only one car, a Honda Accord, was there.
2
Jeralene Valverde, Dennis Castaneda, Demetrius Guzman,
James Tyrone Hoskins, Anthony J. Coleman, Marquez Marquette Jones,
Rudolfo Alonzo, Jr., Ronnie Donyell Harris, and Gary Harris.
2
Everyone was forced to pile into the Honda Accord, with two
members of the group riding in the trunk.
As they left the area, shots were fired from the passenger
side of the Honda. A truck pursued the Honda and Demetrius
Guzman, who was riding in the trunk, fired at it. As the group
returned to the cemetery, Sephus was “looking for a car to jack.”
They saw a small grey vehicle in the cemetery ahead of them
driven by Mrs. Ruby Parker, an elderly woman. Sephus approached
the car, tapped on the window, and ordered Mrs. Parker out of the
car. When she attempted to drive away, Sephus shot and killed
her. Steven Thomas and Guzman left in Mrs. Parker’s car, and the
remainder of the group left in the Honda.
Nearly all of the group pleaded guilty. Hashim Thomas,
Sephus, and Steven Thomas proceeded to trial. The jury convicted
Hashim Thomas of bank robbery in violation of 18 U.S.C. § 2113
(a) & (d). The jury convicted Sephus of bank robbery in
violation of 18 U.S.C. § 2113 (a) & (d) and also in violation of
§ 2113 (a) & (e), two counts of using a firearm during the
commission of a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1), and carjacking in violation of 18 U.S.C. § 2119.
Finally, the jury convicted Steven Thomas of bank robbery, in
violation of 18 U.S.C. § 2113 (a) & (d), and use of a firearm
during a crime of violence, in violation of 18 U.S.C. §924(c)(1).
The district court sentenced Hashim Thomas to 240 months’
imprisonment and 3 years’ supervised release. The court
sentenced Sephus to life for the bank robbery conviction under
subsections (a) & (e) and the carjacking conviction, 300 months’
3
imprisonment for the bank robbery conviction under subsections
(a) & (d), to run concurrently with his convictions for bank
robbery and carjacking, and to 60 months’ imprisonment on each of
the two firearm convictions, to run consecutively to the bank
robbery and carjacking convictions. The court sentenced Steven
Thomas to 300 months’ imprisonment for bank robbery under § 2113
(a) & (d) and to 60 months’ imprisonment for the firearm
conviction, to be served consecutively. The court also ordered
restitution of $126,558.64 jointly and severally payable by all
the participants in the robbery. The appellants assert various
errors on appeal.
II.
A. Multiplicitous indictment of Sephus
The jury convicted Sephus of bank robbery under § 2113 (a) &
(d) (count 1) and § 2113 (a) & (e) (count 2). Sephus contends
that his sentence for bank robbery under § 2113 (a) and (e) must
be vacated because the indictment was multiplicitous.
Sephus did not raise this issue in the district court. A
defendant may challenge his convictions as multiplicitous for the
first time on appeal provided the sentences are not to be served
concurrently. United States v. Galvan, 949 F.2d 777, 781 (5th
Cir. 1991). If monetary assessments under 18 U.S.C. § 3013 are
imposed on separate counts of conviction, the sentences are not
concurrent, and the issue of multiplicity of sentences may be
raised for the first time on appeal. Id.
Sephus may raise the multiplicity of sentences issue on
appeal because even though his life sentence for the conviction
4
under § 2113 (a) and (e) and his 300 month term of imprisonment
for the conviction under § 2113 (a) and (d), run concurrently,
the court also imposed a $50 special assessment on each count.
The Government concedes that Sephus’ sentences on counts 1
and 2 are multiplicitous but argues that under a plain error
analysis, the $50 monetary assessment on count two does not rise
to the level of plain error. This court has held, without
reference to plain error, that although there may be separate
convictions under subsections (a), (d), and (e) of § 2113, the
court may not impose more than one penalty. United States v.
Bates, 896 F.2d 912, 913 (5th Cir.), cert. denied, 496 U.S. 929,
942 (1990). The two special assessments are two penalties under
§ 2113.
We agree with both parties that count 2 is multiplicitous.
Accordingly, we reverse Sephus’ conviction under Count 2 of the
indictment, vacate the portion of his sentence attributable to
that count (300 months’ imprisonment and $50 of Sephus’ special
assessment) and affirm his sentence under count 1 (life
imprisonment).3
B. Testimony about plans to rob the convenience store
All three appellants contend that the district court erred
when it allowed testimony about the group’s discussion, just
3
We need not remand to the district court for resentencing
on count 1 because neither party requests such a remand and we have
no doubt that the district court will impose the same sentence even
if we do remand for resentencing. See United States v. Hord, 6 F.3d
276, 280 n.8 (5th Cir. 1993).
5
prior to the bank robbery and carjacking, of whether it should
rob a convenience store and murder the store’s patrons instead of
robbing the bank.
This court reviews decisions on the admissibility of
evidence for abuse of discretion. United States v. Fortenberry,
919 F.2d 923, 925 (5th Cir. 1990), cert. denied, 499 U.S. 930
(1991). Even if error is shown, however, it is subject to a
harmless error analysis. United States v. Jimenez Lopez, 873
F.2d 769, 771 (5th Cir. 1989). An error is harmless if the
reviewing court is sure, after viewing the entire record, that
the error did not influence the jury or had a very slight effect
on its verdict. United States v. Rodriguez, 43 F.3d 117, 123
(5th Cir.), cert. denied, 115 S. Ct. 2260 (1995). Harmless error
analysis also includes an inquiry into whether a curative
instruction was given and whether the properly admitted evidence
is overwhelming. United States v. Pace, 10 F.3d 1106, 1116 (5th
Cir. 1993), cert. denied, 114 S. Ct. 2180 (1994).
We need not decide whether the district court abused its
discretion by admitting the “other act” evidence because, even if
we assume that admission of the challenged testimony was error,
the error was harmless. The challenged testimony was a few brief
sentences from two of the group members and probably had no
effect on the jury’s verdict given the overwhelming evidence of
the appellants’ guilt, which included the inculpatory testimony
of six of their codefendants. Moreover, the trial court promptly
provided a limiting instruction admonishing the jury on how it
could use the testimony.
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C. Sufficiency of the evidence to convict Steven Thomas
Steven Thomas argues that although he “may have” gone into
the bank, there is insufficient evidence to show that he carried
a gun or committed a robbery by force, violence, or intimidation.
Steven acknowledges the testimony of his co-conspirators which
uniformly placed him inside the bank holding a gun but contends
that this testimony is somehow not credible and notes that none
of the bank employees who testified indicated that he entered the
bank or carried a weapon.
In reviewing the sufficiency of the evidence, this court
must determine whether any reasonable trier of fact could have
found that the evidence established guilt beyond a reasonable
doubt. United States v. Martinez, 975 F.2d 159, 160-61 (5th Cir.
1992), cert. denied, 507 U.S. 943 (1993). Reasonable inferences
are construed in accordance with the jury's verdict and the jury
is solely responsible for determining the weight and credibility
of the evidence. Id. at 161. A guilty verdict may rest upon the
uncorroborated testimony of co-conspirators unless the testimony
is facially incredible. United States v. Bermea, 30 F.3d 1539,
1552 (5th Cir. 1994), cert. denied, 115 S. Ct. 1825 (1995). This
court will not substitute its own determination (or that of
Steven Thomas) for that of the jury. Martinez, 975 F.2d at 161.
The uniform testimony of Steven Thomas’ co-conspirators
established that: Steven entered the bank first, carried a gun,
drew the gun once he was inside the bank, and emerged from the
bank’s vault with his arms full of money. The jury obviously
credited this testimony. Steven’s sufficiency argument fails
7
because a rational jury could have found him guilty of the crimes
charged.
D. Sufficiency of the evidence - Sephus’ carjacking conviction
Sephus contends that the Government failed to prove by
sufficient evidence that he “took” a car from the person and
presence of Ruby Parker as required under 18 U.S.C. § 2119.4
Sephus contends that even though he shot Mrs. Parker, he did not
exercise any control over her vehicle or leave in her vehicle
and, thus, did not “take” her car within the meaning of the
statute. Sephus alternatively argues that even if “taking”
requires only the exercise of dominion or control without
asportation (an appreciable change of location of the property),
there was insufficient evidence to show that he exercised
dominion over Mrs. Parker’s vehicle.
Sephus failed to move for a judgment of acquittal.
Therefore, Sephus' sufficiency-of-the evidence claim is
reviewable only to determine whether there was a manifest
miscarriage of justice. See United States v. Laury, 49 F.3d 145,
151 (5th Cir.), cert. denied, 116 S. Ct. 162 (1995). Such exists
only if the record is devoid of evidence pointing to guilt, or
4
Section 2119, the carjacking statute, provides:
[w]hoever, with the intent to cause death or serious
bodily harm takes a motor vehicle that has been
transported, shipped, or received in interstate or
foreign commerce from the person or presence of another
by force and violence or by intimidation, or attempts to
do so, . . . .
18 U.S.C. § 2119 (emphasis added).
8
because the evidence on a key element of the offense is so
tenuous that a conviction would be shocking. Id.
As Sephus himself notes, there was testimony that he “was
looking for a car to jack,” he ordered Mrs. Parker out of the
car, and he shot her when she failed to comply. Through his
actions, Sephus deprived Mrs. Parker of her car. The mere fact
that other members of the group physically drove the car away
from his carjacking does not render the conviction “shocking.”
E. Sentencing of Steven and Hashim Thomas
Hashim and Steven Thomas argue that the murder statute under
which they were sentenced, 18 U.S.C. § 1111, is
unconstitutionally vague.5 Section 1111 provides that “[m]urder
is the unlawful killing of a human being with malice
aforethought.” 18 U.S.C. § 1111. Hashim and Steven contend that
the phrase “malice aforethought” is incomprehensible to the
average person, facially fails to provide any guidelines to what
constitutes “malice aforethought,” and leads to erratic
decisions.
Penal statutes must “define the criminal offense with
sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage
5
Hashim and Steven were convicted of bank robbery in
violation of 18 U.S.C. § 2113 (a) & (d). The applicable sentencing
guidelines, found at U.S.S.G. § 2B3.1, provide that if a victim is
killed under circumstances that would constitute murder under §
1111 had the killing taken place within the territorial
jurisdiction of the U.S., the first degree murder guideline, §
2A1.1, applies. Accordingly, Hashim and Steven were sentenced
under § 2A1.1.
9
arbitrary and discriminatory enforcement.” Buckley v. Collins,
904 F.2d 263, 266 (5th Cir.), cert. denied, 498 U.S. 990 (1990)
(alteration in original), (quoting Kolender v. Lawson, 461 U.S.
352, 357 (1983)). Since neither Steven nor Hashim raised the
void-for-vagueness argument below, we review for plain error.
“Void for vagueness simply means that criminal
responsibility should not attach where one could not reasonably
understand that his contemplated conduct is proscribed.” United
States v. National Dairy Prod. Corp., 372 U.S. 29, 32 (1963).
Section 1111 is clear enough that a reasonable person
contemplating a murder in cold blood, such as Sephus’ murder of
Ruby Parker, would understand that his conduct was proscribed.
The Thomases fail to show error, plain or otherwise.
F. Restitution required of Steven Thomas & Hashim Thomas
Appellants Steven and Hashim Thomas argue that the district
court failed to consider their ability to pay restitution when it
entered a restitution order of $126,558.64, payable jointly by
all the participants in the robbery. Hashim also contends that
the court gave no indication of what the factual basis was for
its decision. Steven and Hashim did not challenge the order of
restitution in the district court so we review for plain error.
The sentencing guidelines provide that restitution shall be
ordered for violations of Title 18. U.S.S.G. § 5E1.1 (1994)
(referring the sentencing court to 18 U.S.C. § 3664). Sentencing
judges are accorded broad discretion in ordering restitution and
are not required to make specific findings on each factor listed
10
in § 3664. See United States v. Ryan, 874 F.2d 1052, 1054 (5th
Cir. 1989). The defendant has the burden of proving that he
cannot pay restitution by objecting and requesting specific
findings concerning his ability to pay. United States v. Reese,
998 F.2d 1275, 1281 (5th Cir. 1993); 18 U.S.C. § 3664(d).
Hashim and Steven Thomas have failed to show that the
district court plainly erred by ordering them to pay restitution.
Calverley, 37 F.3d at 162-63. Their only argument is that they
will have bleak employment prospects upon their release. This,
in itself, is not enough to render a restitution order illegal or
plainly erroneous. United States v. Stafford, 896 F.2d 83, 84
(5th Cir. 1990).
Conclusion
Julius Sephus’ indictment for bank robbery under 18 U.S.C. §
2113 (a) and (e) was improperly multiplicitous. The district
court did not err in admitting testimony of the defendants’ plans
to rob a convenience store and kill its customers. The evidence
was sufficient to convict Steven Thomas of bank robbery, use of a
firearm in connection with a crime of violence, and aiding and
abetting and was sufficient to convict Sephus of carjacking even
though he did not move Mrs. Parker’s car. The sentences of
Steven and Hashim Thomas were proper and the order of restitution
was not plain error. Accordingly, we REVERSE Sephus’ conviction
under § 2113 (a) and (e) and the resulting 300 month sentence and
$50 special assessment, AFFIRM Sephus’ life sentence for his
11
conviction under § 2113 (a) and (d), and AFFIRM the convictions
of Steven and Hashim Thomas in all respects.
AFFIRMED in part, REVERSED in part and RENDERED.
12