IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________
NO. 93-9007
Summary Calendar
______________
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was superseded several times, eventually charging six separate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