UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-20383
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SAM AUTRY FLETCHER, also known as Junior;
FRANK WATTS, JR., also known as Poppa;
BRODERICK WILSON, also known as Roy Arnolia Brock;
JAMES ADAMS WATTS,
Defendants-Appellants.
Appeals from the United States District Court
For the Southern District of Texas
August 25, 1997
Before DUHÉ and BARKSDALE, Circuit Judges, and COBB1, District
Judge.
DUHÉ, Circuit Judge:
Sam Autry Fletcher, Frank Watts, Jr., Broderick Wilson, and
James Adams Watts appeal their convictions for bank robbery and
conspiracy to commit bank robbery. We affirm the convictions and
sentences of Fletcher, Wilson, and Frank Watts. We also affirm
James Watts’s convictions, but we vacate his sentence for bank
robbery and remand for resentencing.
BACKGROUND
On April, 26, 1995, three masked and armed assailants robbed
1
District Judge of the Eastern District of Texas, sitting by
designation.
a Bank of America branch in Webster, Texas. Two of the robbers--
one described as very tall, the other as average height--approached
Christine Gober’s teller window and ordered her to surrender the
money in the cash drawer. After Gober complied, the two
perpetrators forced Gober and Denise Burse, the bank’s manager, to
open the vault. While the two robbers plundered the vault, the
third assailant remained by the teller windows, where he threatened
employee Penny Sondecker. The robbers eventually fled the bank
with approximately $174,900.
Unknown to the perpetrators, witnesses outside the bank
observed two masked men enter the bank and called the police from
a restaurant across the street. The witnesses remained on the
scene, and they eventually saw three men exit the bank, depart in
a dark blue sedan, and drive into the parking lot of another nearby
restaurant. Shortly thereafter, the witnesses noticed a silver-
gray van, driven by a woman, leave the lot and enter the freeway.
By this time, police officers had arrived at the bank, and the
witnesses provided them with a description of the van and
identified two digits, “11," on the van’s license plate. This
description was broadcast over police radio.
Larry Wittington, a Webster police officer, was driving on the
freeway when he heard the radio report of the bank robbery and the
description of the van. Shortly thereafter, he saw a silver van
enter the freeway. Officer Wittington soon caught up to the van,
which had the license plate “HCZ 11Y.” While driving next to the
van, he observed a black female in the driver’s seat and a black
2
male, dressed in a suit, in the front passenger’s seat. Although
Officer Wittington was unable to apprehend the van, he later
identified the passenger, from a photographic line-up, as James
Watts. The van was also traced to James Watts’s limousine service.
Because the assailants wore masks in the bank, none of the
bank’s employees actually observed their faces during the robbery.
Gober and Burse, however, both testified that, based upon the
robbers’ dialect and Burse’s observation of the tall robber’s skin
color around his eyes, they believed the perpetrators to be
African-American men. Further, Gober and Burse told the
investigating detectives that shortly before the robbery, a very
tall, young black man had requested change for a $100 bill from one
of the tellers. Sondecker also reported having observed a tall,
slender black man in the bank approximately two weeks prior to the
robbery. From a photographic display, Burse and Sondecker
identified Sam Autry Fletcher as the tall black man who had been in
the bank prior to the robbery, but Gober picked out a picture of
another individual from the photographic array.
At trial, the Government also presented the testimony of
Patrick McMillian, who was initially a suspect in the bank robbery.
McMillian lived with Frank Watts, and he knew the four defendants
from their participation in a rap music band that practiced at his
house. McMillian testified that around the end of March 1995,
three of the co-defendants (Frank Watts, James Watts, and Broderick
Wilson) and James Watts’s wife would frequently meet in Frank
Watts’s room with the door closed. On one evening, McMillian
3
eavesdropped outside the closed door and overhead James Watts
talking about a bank robbery. On another occasion in April,
McMillian observed all four defendants enter Frank Watts’s room,
and he overheard them discussing plans to steal a car to rob a bank
and to switch to a van after completing the robbery. Finally,
McMillian testified that on an afternoon in late April, the four
defendants arrived at the house in James Watts’s van and entered
the house carrying bags. At that time, Fletcher told McMillian
that he had just returned from a robbery with $30,000, and he
showed McMillian a stack of $20 bills, the denomination of the
money stolen from the bank.
After obtaining consent, FBI agents searched Frank Watts’s
mother’s house. In the house, they discovered a safe, which they
opened after obtaining a search warrant. Inside, they found 550
$20 bills. One of the bills matched a “bait bill” stolen from the
bank. The majority of the remaining bills fell within the series
of $20 bills that the Federal Reserve Bank had sent to the Bank of
America in Webster, Texas. The police found Frank Watts’s palm
print on one of the bills and Wilson’s thumb print on another.
In July 1995, a grand jury indicted Fletcher, Wilson, Frank
Watts, and James Watts for: (1) conspiracy to commit robbery, in
violation of 18 U.S.C. § 371; and (2) robbery by force, violence,
and intimidation, in violation of 18 U.S.C. §§ 2113(a) and 2. The
defendants were tried jointly before a jury, and each was convicted
on both counts. As to count 1, the district court sentenced each
of the defendants to 60 months of incarceration. As to count 2,
4
the district court sentenced James Watts to 262 months of
incarceration, Fletcher to 188 months of incarceration, and Wilson
and Watts to 151 months of incarceration. The sentences were to be
served concurrently.
DISCUSSION
I. CONSTRUCTIVE AMENDMENT OF THE INDICTMENT
Count two of the indictment charged the Appellants with bank
robbery, in violation of 18 U.S.C. § 2113(a),2 and the district
court instructed the jury as to the elements of that offense.
After doing so, however, the court also instructed the jury as to
the elements of a § 2113(d) bank robbery offense.3 The instruction
read as follows:
Title 18, United States Code, Section 2113(d) makes it a
more serious offense for anyone while in the process of
violating subsection (a) of the statute to assault and put in
jeopardy the life of any person by the use of a dangerous
weapon or device.
In order to establish the offense as charged in Count 2
of the indictment, the government must prove beyond a
reasonable doubt each of the three specific acts I mentioned
2
Section 2113(a) states, in pertinent part:
Whoever, by force and violence, or by intimidation, takes, or
attempts to take, from the person or presence of another any
property or money or any other thing of value belonging to, or
in the care, custody, control, management, or possession of, any
bank, credit union, or any savings and loan association . . .
Shall be fined not more than $5,000 or imprisoned not more than
twenty years, or both.
18 U.S.C. § 2113(a).
3
Section 2113(d) states, in full:
Whoever, in committing, or in attempting to commit, any offense
defined in subsections (a) and (b) of this section, assaults any
person, or puts in jeopardy the life of any person by the use of
a dangerous weapon or device, shall be fined not more than
$10,000 or imprisoned not more than twenty-five years, or both.
18 U.S.C. § 2113(d).
5
a moment ago in discussing Count 2, and must also prove beyond
a reasonable doubt a fourth specific fact, namely:
That the defendant assaulted and put in jeopardy the life
of a person by the use of a dangerous weapon or device
while engaged in taking the money, as charged.
It is uncontroverted that the indictment charged the Appellants
with violating only § 2113(a)--and not § 2113(d). Thus, we
conclude that the district court erred in giving the instruction
appropriate for § 2113(d), and that in so doing, it constructively
amended the indictment. See United States v. Slovacek, 867 F.2d
842, 847 (5th Cir. 1989) (stating that constructive amendment of
the indictment occurs if “the court, through its instructions and
facts it permits into evidence, allows proof of an essential
element of a crime on an alternative basis permitted by the statute
but not charged in the indictment”). The more difficult question
that we face, however, is whether the error requires reversal of
the Appellants’ convictions. We conclude that it does not.
Because the Appellants failed to object at trial to the
erroneous jury instruction, we may address the claim, pursuant to
Fed. R. Crim. P. 52(b), only if (1) there was an error, (2) the
error was plain, and (3) the plain error affected the substantial
rights of the defendant. See United States v. Olano, 507 U.S. 725,
731-34 (1993); United States v. Calverley, 37 F.3d 160, 162-64 (5th
Cir. 1994). If all three conditions are satisfied, we may exercise
our discretion to correct the error if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.”
Olano, 507 U.S. at 736 (internal quotation marks omitted;
alteration in original).
6
The seminal case governing constructive amendment of an
indictment is Stirone v. United States, 361 U.S. 212 (1960). In
Stirone, the Supreme Court reversed a criminal conviction because
the district court’s jury instructions constructively amended the
indictment. The Court stated:
While there was a variance in the sense of a variation between
pleading and proof, that variation here destroyed the
defendant’s substantial right to be tried only on charges
presented in an indictment returned by a grand jury.
Deprivation of such a basic right is far too serious to be
treated as nothing more than a variance and then dismissed as
harmless error.
Id. at 217. Following Stirone, we have emphasized that
constructive amendment of the indictment through erroneous jury
instructions requires per se reversal of the defendant’s
convictions. See, e.g., United States v. Salvatore, 110 F.3d 1131,
1145 (5th Cir. 1997); United States v. Harrill, 877 F.2d 341, 344
(5th Cir. 1989); United States v. Ylda, 653 F.2d 912, 913 (5th Cir.
1981). Indeed, we have held that reversal is “automatic” even when
a defendant fails to object to the erroneous instructions, thus
subjecting his appeal to plain error review. See United States v.
Mize, 756 F.2d 353, 355-56 (5th Cir. 1985).
Both Stirone and the Fifth Circuit case law interpreting it,
(except Salvatore in which no constructive amendment was found),
predate the Supreme Court’s opinion in Olano, which set forth the
current standard governing plain error. Following Olano, this
circuit, in United States v. Reyes, 102 F.3d 1361, 1364-66 (5th
Cir. 1996), concluded that we have discretion to correct a Stirone
error--an error that, prior to Olano, would have required reversal
7
per se.4 Further, in Reyes, we declined to exercise our
discretion to correct an error that resulted in a constructive
amendment of the indictment. See id.
For a number of reasons, we choose not to correct the error in
this case. First, we are confident that the Appellants were in no
way prejudiced by the erroneous instruction. The court instructed
the jury as to the elements of § 2113(d), which is a greater degree
of bank robbery than the indicted offense of § 2113(a). In fact,
the elements of § 2113(d) include all of the elements of § 2113(a),
plus the additional element of assault. Therefore, by instructing
the jury as to § 2113(d), the court actually imposed a higher
standard of proof on the Government than that required by the
indictment. Because the jury found that the Government established
the elements of § 2113(d) bank robbery, it must necessarily have
found that the Government proved the elements of § 2113(a) bank
robbery. Thus, the erroneous instruction did not impair the
“substantial rights” of the Appellants because it could not have
affected the outcome of the trial. See Olano, 507 U.S. at 734.
Moreover, to hold that a constructive amendment of the
indictment requires per se reversal even under Olano would
4
The Appellants asserts that even under Olano, at least one
circuit court has held that a constructive amendment must be
corrected on appeal. See United States v. Floresca, 38 F.3d 706,
714 (4th Cir. 1994) (en banc) (“In sum, we hold that, under
Stirone, constructive amendments of a federal indictment are error
per se, and, under Olano, must be corrected on appeal even when not
preserved by objection.); see also United States v. Lawton, 995
F.2d 290, 294-95 (D.C. Cir. 1993) (exercising its discretion under
Olano to correct a Stirone error not raised at trial).
Notwithstanding Floresca and Lawton, we are bound by Reyes, a prior
panel decision of the Fifth Circuit.
8
encourage the kind of sandbagging that the plain error standard is
designed in part to prevent. See Reyes, 102 F.3d at 1365. Were we
to so hold, no rational defense counsel would ever object to the
erroneous instructions in a prosecution similar to this one: not
only would the erroneous instruction increase the likelihood of
acquittal,5 but defense counsel would also know that a conviction
would necessarily be reversed on appeal. See id. at 1365-66. Such
a situation does not accord with justice or common sense.6
Finally, we recognize that the district court sentenced James
Watts to 262 months of imprisonment as to count two--a punishment
commensurate with conviction under § 2113(d). But although the
5
Indeed, this situation is more stark than that in Reyes,
where we noted that the defendant faced identical odds of being
convicted under either the correct or erroneous charge. See Reyes,
102 F.2d at 1365.
6
We note, by way of caution, that we do not seek to minimize
the import of numerous appellate decisions that have repeatedly
recognized the seriousness of a trial error that results in a
constructive amendment of the indictment. Those decisions have
emphasized that a constructive amendment of the indictment is so
pernicious as to require reversal per se because, in the typical
case, the constructive amendment broadens the indictment such that
a defendant might be convicted for a crime not charged therein.
See, e.g., Stirone, 361 U.S. at 216 (noting that only the grand
jury may broaden an indictment); Floresca, 38 F.3d at 710, 711 (“A
constructive amendment to an indictment occurs when . . . the court
. . . broadens the possible bases for conviction beyond those
presented by the grand jury. . . . We stress that it is the
broadening itself that is important--nothing more.”); Lawton, 995
F.2d at 290 (noting that the jury instructions expanded the
indictment); Harrill, 877 F.2d at 344 (stating that “a conviction
must be reversed if the court’s instructions to the jury amend the
indictment to enlarge the offense”). In this case, however, the
erroneous instruction did not broaden or expand the indictment;
rather, it narrowed the indictment by requiring the Government to
prove the additional assault element of § 2113(d). Given that the
jury convicted the Appellants of § 2113(d), there is simply no
doubt that they would have convicted under the lesser standard of
§ 2113(a).
9
court instructed the jury as to the elements of § 2113(d), it is
undisputed that Watts was indicted--and can only be convicted--for
violating § 2113(a). Indeed, the court’s judgment reflects this
fact. Section 2113(a) carries a statutory maximum penalty of 20
years (240 months) imprisonment. Because Watts’s sentence exceeds
the statutory maximum, we must vacate his sentence and remand for
resentencing.
II. PHOTOGRAPHIC IDENTIFICATION
Appellants James Watts and Sam Autry Fletcher assert that
their Fifth Amendment rights were violated by the introduction of
impermissibly suggestive and inherently unreliable photographic
identification evidence. The question whether identification
evidence and the fruits therefrom are admissible at trial is a
mixed question of law and fact. See United States v. Sanchez, 988
F.2d 1384, 1389 (5th Cir. 1993). Such mixed questions are subject
to de novo review. See Buser by Buser v. Corpus Christi Indep.
Sch. Dist., 51 F.3d 490, 492 (5th Cir. 1995). However, we review
the district court’s underlying factual findings for clear error.
See United States v. Diecidue, 603 F.2d 535, 565 (5th Cir. 1979).
A conviction based upon an eyewitness identification at trial
following a pretrial photographic identification must be set aside
“only if the photographic identification procedure was so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.” Simmons v. United
States, 390 U.S. 377, 384 (1968); accord Herrera v. Collins, 904
F.2d 944, 946 (5th Cir. 1990). The admissibility of identification
10
evidence is governed by a consideration of two factors. See
Herrera, 904 F.2d at 946. First, the court must determine whether
the photographic array was impermissibly suggestive. See Sanchez,
988 F.2d at 1389. If it was, then the court must consider whether,
based upon the totality of the circumstances, “the display posed a
‘very substantial likelihood of irreparable misidentification.’”
Id. (quoting Simmons, 390 U.S. at 384); see also Manson v.
Brathwaite, 432 U.S. 98, 114 (1977) (stating that the gravamen of
this determination is reliability). In examining the totality of
the circumstances regarding reliability, the court should
specifically consider:
the opportunity of the witness to view the criminal at the
time of the crime, the witness’ degree of attention, the
accuracy of the witness’ prior description of the criminal,
the level of certainty demonstrated by the witness at the
confrontation, and the length of time between the crime and
the confrontation.
Neil v. Biggers, 409 U.S. 188, 199 (1972).
A. James Watts
Officer Larry Wittington, during his pursuit of the silver
getaway van on April 26, 1995, observed a black male wearing a suit
and tie sitting in the passenger seat. Three days later, Officer
Wittington was shown a display of six photographs. He selected a
photograph of James Watts as the person who was riding in the
passenger seat of the van. On appeal, Watts contends that the
district court’s admission of the photographic identification
evidence was constitutionally infirm because: (1) his picture was
the only one in the array in which the subject was dressed in a
suit and tie; and (2) his picture was positioned in the center
11
position of the top row. We conclude otherwise.
The district court, faced with a similar objection, determined
that although the photograph of Watts was the only one in which the
subject was wearing a suit and tie, the photographic display was
not impermissibly suggestive because “in all other relevant
respects, the individuals shown on the photo spread are similar in
apparent size, all have mustaches, all have approximately the same
kind of hair.” Watts does not dispute the district court’s factual
finding that the physical appearance--aside from the clothing--of
the individuals in the six photos was very similar, and we
therefore accept this fact as true. Accordingly, we do not believe
that the array was overly suggestive merely because the defendant
was the only individual pictured wearing a suit and tie. Further,
it is irrelevant that Watts’s photograph was located in the top
center position of the display. We therefore hold that the court
did not err in allowing the identification testimony into
evidence.7
B. Sam Autry Fletcher
Three bank employees, Christine Gober, Denise Burse, and Penny
Sondecker, informed the investigating authorities that shortly
before the robbery, they had observed a very tall black man in the
bank. Each of these employees was later shown a photographic
display containing 26 pictures of various black men. Of the 26
photos, only five gave any indication as to the height of the
7
Because we hold that the photographic display was not overly
suggestive, we need not reach the second part of the analysis,
i.e., whether the identification was unreliable.
12
individual depicted therein: one photo, that of Fletcher, pictured
a person who was 6'7" tall; two photos depicted individuals who
were between 6'1" and 6'2" tall; and two photos portrayed
individuals who were well under 6' tall. Two of the employees,
Burse and Sondecker, identified Sam Autry Fletcher as the man they
had previously seen in the bank, while Gober identified another
individual in the photo spread. The district court denied
Fletcher’s motion to suppress the identification testimony. On
appeal, Fletcher asserts that the photographic display was
impermissibly suggestive and unreliable because it emphasized his
unusual height. Again, we disagree.
The photographic array contained 26 photos of African-American
males of about the same age. Only five of the photographs depicted
the height of the individual pictured therein, and of the five
photos, three portrayed men over 6 feet tall. While it is true
that the photograph of Fletcher was the only one that depicted a
subject who was well over 6 feet tall, there were 21 other
photographs that provided no indication as to the height of the
individuals. Cf. United States v. Credit, 95 F.3d 362, 364 (5th
Cir. 1996) (admitting photographic identification evidence even
though the defendant was the only heavy-set man with a round face
in a photographic display of six men of similar age and skin tone),
cert. denied, 117 S. Ct. 1008 (1997).
Even assuming, arguendo, that the photographic display was
impermissibly suggestive, we do not believe that the witnesses’
identification was unreliable. Of the five Biggers factors, only
13
one, the level of certainty of the witness, weighs in Fletcher’s
favor, as both Sondecker and Burse offered only “tentative”
identifications.8 The other four factors, however, favor
admissibility. Burse especially had ample opportunity to view
Fletcher when he cased the bank on the morning of the robbery.
Moreover, both Burse and Sondecker testified that their attention
was drawn to Fletcher because he was a very tall black man that
they had not previously observed in the bank; in fact, Sondecker
described him as “striking.” Further, the witnesses’ prior
description of Fletcher was accurate, as he is indeed a very tall
black man. Finally, both Burse and Sondecker viewed the
photographic display within a few weeks of their initial sighting
of Fletcher. Thus, we conclude that even if the photographic
display was impermissibly suggestive, it did not pose a substantial
likelihood of misidentification.
III. SUFFICIENCY OF THE EVIDENCE
James Watts and Broderick Wilson contend that the evidence was
insufficient to sustain their convictions. A criminal conviction
must be upheld if any rational jury could have found that the
evidence established the essential elements of the crimes charged
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319 (1979); United States v. Ismoila, 100 F.3d 380, 387 (5th Cir.
1996), cert. denied, 117 S. Ct. 1712, and cert. denied, 117 S. Ct.
8
Even this, however, only marginally favors inadmissibility,
for Sondecker herself testified that when she looked at the
photographic array, she was sure that the photograph she had
selected was that of Fletcher.
14
1858 (1997). We view the evidence, including all reasonable
inferences drawn therefrom and all credibility determinations, in
the light most favorable to the jury verdict. See United States v.
Resio-Trejo, 45 F.3d 907, 910 (5th Cir. 1995).
To sustain a conspiracy conviction under 18 U.S.C. § 371, the
Government must prove: (1) an agreement between two or more
persons, (2) to commit a crime, and (3) an overt act committed by
one of the conspirators in furtherance of the agreement. See
United States v. Gray, 96 F.3d 769, 772-73 (5th Cir. 1996), cert.
denied, 117 S. Ct. 1275 (1997). To prove the underlying offense of
bank robbery, in violation of 18 U.S.C. § 2113(a), the Government
must establish: (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 of, (7) a bank.
See United States v. McCarty, 36 F.3d 1349, 1357 (5th Cir. 1994).
Viewed in the light most favorable to the verdict, the
evidence is sufficient to sustain the convictions of both James
Watts and Broderick Wilson. Specifically, the Government presented
the following: McMillian’s testimony that on two occasions he
heard James Watts and Wilson planning the bank robbery in Frank
Watts’s room; McMillian’s testimony that he observed the four
defendants return to his house in the silver van carrying a number
of bags, and his testimony that Fletcher, on the same date,
admitted to participating in a robbery; Officer Wittington’s
identification of James Watts as the passenger in the van that fled
15
the scene of the crime; Wilson’s fingerprint on one of the $20
bills seized from Frank Watts’s safe; evidence establishing that
the van fleeing the bank belonged to James Watts’s limousine
business; testimony demonstrating that although James Watts and
Wilson had no visible means of support before the robbery, they
spent substantial sums of money after the bank robbery.
Much of the Appellants’ argument centers on attacking the
credibility of Wittington and McMillian. We must, however, draw
all credibility determinations in the light most favorable to the
verdict. See Resio-Trejo, 45 F.3d at 910. Doing so, we conclude
that the evidence is sufficient to sustain the convictions of James
Watts and Broderick Wilson.
IV. PROSECUTORIAL STATEMENTS
A. During Closing Argument
Fletcher insists that his conviction must be reversed because
of the prosecutor’s improper comments during closing argument.
Specifically, he contends that during closing argument, the
prosecutor referred to the following inculpatory “facts” that were
never introduced into evidence: that Fletcher was homeless around
the time of the bank robbery;9 that Fletcher lied by telling an FBI
agent that he had never been to Webster, Texas; and that Denise
Burse made an in-court identification of Fletcher.
We will reverse a conviction for improper prosecutorial
remarks only where the defendant’s right to a fair trial is
substantially affected. See United States v. Andrews, 22 F.3d
9
This statement is the only one to which Fletcher objected.
16
1328, 1341 (5th Cir. 1994). The critical question that we must
resolve is whether the prosecutor’s remarks “cast serious doubt on
the correctness of the jury verdict.” Id. The relevant factors to
consider are: (1) the magnitude of the prejudicial effect, (2) the
efficacy of any cautionary instruction, and (3) the strength of the
evidence supporting the defendant’s guilt. See id. Because
Fletcher objected to only one of the allegedly improper comments,
he bears an even greater burden; we will reverse only upon a
showing of plain error. See id. In such a situation, Fletcher
must show that the plain error jeopardizes his “substantial rights”
and “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” See Calverley, 37 F.3d at 164
(internal quotation marks omitted). This he has not done.
The prejudice resulting from the prosecutor’s comments is
slight. The first remark--that Fletcher was homeless--is
inconsequential and was made only in passing. The prosecutor’s
second statement--that Fletcher lied by asserting that he had never
been to Webster, Texas--is only slightly prejudicial. The
important fact is not that Fletcher lied, but that witnesses placed
him at the Bank of America in Webster, Texas. The prejudice
resulting from this remark is far from enough to warrant reversal
under the plain error standard. Finally, the prejudicial effect of
the third remark--that Burse identified Fletcher in court--is
slight because she did identify him in a photo array and because
Penny Sondecker identified Fletcher in court.
The other two factors outlined in Andrews also support
17
affirmance. The court never had the opportunity to caution the
jury as to two of the statements because none of the defendants
objected to the prosecutor’s statements. Finally, as we outlined
in Part III of this opinion, the evidence linking Fletcher to the
crime is substantial. Thus, we decline to reverse Fletcher’s
conviction on this ground.
B. During Direct Examination
Fletcher also contends that the district court erred by
refusing to give a curative instruction after the prosecutor asked
the following question of FBI Agent Eric Johnson: “When you talked
to . . . Sam Fletcher, do you recall him mentioning anything about
robbing banks?” Fletcher insists that this question was extremely
prejudicial because it suggested to the jurors that Fletcher had
admitted to robbing a bank.
We do not think that the effect of this question is nearly as
prejudicial as Fletcher maintains. Before Agent Johnson could
respond to the query, Fletcher’s counsel objected, and the district
court instructed the prosecutor to move to another area of inquiry.
Later, outside the presence of the jury, the court determined that
Fletcher’s alleged admission was inadmissible under Fed. R. Evid.
404(b). However, he refused to give a curative instruction to the
jury, stating:
Well, the jury . . . has already been told and will be told
again at the end of the case [that] . . . what the attorneys
say is not evidence and to disregard questions when objections
are raised and not to speculate on what the answers would have
been. At this stage I don’t think [a curative instruction]
would be appropriate. I’m having a hard time thinking of how
I could make the point to the jury without reminding them of
what the question was, which I think would defeat the purpose
18
that you have suggested.
We fully agree with the court’s reasoning. Juries are presumed to
follow the instructions of the court. See Zafiro v. United States,
506 U.S. 534, 540-41 (1993).
V. SEVERANCE
Wilson contends that the district court erred by denying his
motion to sever, thereby violating his Sixth Amendment right to
confrontation as explained by Bruton v. United States, 391 U.S. 123
(1968). We review Bruton issues for abuse of discretion. See
United States v. Beaumont, 972 F.2d 91, 95 (5th Cir. 1992).
The Fifth Circuit has held that, under Bruton, a defendant’s
Sixth Amendment right to confrontation is violated when “‘(1)
several co-defendants are tried jointly, (2) one defendant’s
extrajudicial statement is used to implicate another defendant in
the crime, and (3) the confessor does not take the stand and is
thus not subject to cross-examination.’” United States v. Jobe,
101 F.3d 1046, 1066 (5th Cir. 1996) (quoting United States v.
Restrepo, 994 F.2d 173, 186 (5th Cir. 1993)), petition for cert.
filed, 66 U.S.L.W. 3016 (Jun. 25, 1997). A defendant’s right to
confrontation is violated, however, only when the co-defendant’s
statement directly incriminates the other defendants without
reference to other admissible evidence. See id. The Supreme Court
has stated, “We hold that the Confrontation Clause is not violated
by the admission of a nontestifying codefendant’s confession with
a proper limiting instruction when, as here, the confession is
redacted to eliminate not only the defendant’s name, but any
19
reference to his or her existence.” Richardson v. Marsh, 481 U.S.
200, 211 (1987).
In this case, Wilson claims that his Sixth Amendment rights
were violated by the admission of Patrick McMillian’s testimony
regarding the confession of co-defendant Fletcher. The Government,
however, redacted McMillian’s statement, and McMillian testified
that Fletcher admitted only that “he [i.e., Fletcher] just came
back from a bank robbery.” On appeal, Wilson insists that taken in
context--Fletcher made the confession shortly after arriving at
McMillian’s house in the silver van with the other defendants--the
statement directly implicates him in the crime. We disagree.
On its face, the statement itself--that Fletcher had just
committed a bank robbery--certainly does not directly implicate
Wilson. It becomes incriminating only by reference to other
testimony, which is permissible under Richardson. Moreover, as
required by Richardson, the district court repeatedly instructed
the jury that Fletcher’s statement could be used against Fletcher
only, and could not be considered as to any other defendant.10 We
therefore conclude that the admission of McMillian’s statement
regarding Fletcher’s confession did not violate Wilson’s rights
under the Confrontation Clause.
VI. THE FIREARM ENHANCEMENT
10
Wilson argues that the prejudice was magnified because the
prosecutor, during closing argument, mentioned that Fletcher told
McMillian, “we just did it--I just did it.” As the quoted phrase
shows, however, the prosecutor immediately corrected himself as to
Fletcher’s confession, and he later emphasized that Fletcher said
only that “I just did it.” Furthermore, the district court
instructed the jury to disregard the prosecutor’s statement.
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Finally, the Appellants contend that the district court erred
by enhancing their sentences pursuant to U.S.S.G. § 2B3.1(b)(2)(B),
which mandates a six-level enhancement when a firearm is “otherwise
used”--but not discharged--during the commission of a robbery. The
Appellants maintain that the court should have enhanced their
sentences by only five levels, pursuant to § 2B3.1(b)(2)(C),
because they merely “brandished, displayed, or possessed” a weapon
during a robbery.
The Guidelines define “otherwise used” as conduct that “did
not amount to the discharge of a firearm but was more than
brandishing, displaying, or possessing a firearm or other dangerous
weapon.” U.S.S.G. § 1B1.1 app. note 1(g). In United States v.
Gonzales, 40 F.3d 735, 738-40 (5th Cir. 1994), we stated that the
“otherwise-used” enhancement includes a situation where a defendant
both points a weapon at a victim and also explicitly threatens the
victim. Because the defendants both pointed their weapons at the
bank employees and explicitly threatened them, we conclude that the
district court, pursuant to Gonzales, properly enhanced their
sentences by six levels.11
CONCLUSION
For the foregoing reasons, we affirm the convictions and
sentences of Frank Watts, Sam Autry Fletcher, and Broderick Wilson,
and we affirm the convictions of James Watts, but vacate his
sentence as to count two and remand for resentencing.
AFFIRMED in part; VACATED and REMANDED in part.
11
One panel of the Fifth Circuit may not overrule the decision
of another panel. See United States v. Storm, 36 F.3d 1289, 1297
(5th Cir. 1994).
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