IN THE UNITED STATES COURT OF APPEALS
for the Fifth Circuit
__________________________
No. 93-7757
(Summary Calendar)
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL MARTIN MCCARTY,
Defendant-Appellant.
_______________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_______________________________________________
(October 25, 1994)
DUHÉ, WIENER and STEWART, Circuit Judges.
PER CURIAM:
Paul Martin McCarty was convicted by jury of two counts of
bank robbery and one count of use of a firearm during a bank
robbery. He was sentenced to serve a 175-month concurrent term
of imprisonment on each of the bank robbery counts, and to serve
a consecutive term of 60 months on the firearm offense, for a
total of 235 months imprisonment. McCarty appeals his conviction
and sentence, asserting as error the following issues: (1)
admission of Rule 404(b) evidence, (2) sufficiency of evidence to
prove element of "force and violence, or intimidation", (3)
denial of motion to suppress, (4) admission of search-warrant
affidavit into evidence, (5) cumulative error, and (6) sentencing
errors and double jeopardy. Finding no reversible error, we affirm.
FACTS
On December 23, 1992, a man walked into the Sunburst Bank in
Jackson, Mississippi. The man wore a black wig and fake beard,
tennis shoes, coveralls, and black gloves. He carried a black
bag which had a zippered opening. He walked up to Robin Dunaway,
a teller, handed her a note and indicated that she was to give
him money from her two cash drawers. He did not speak to her,
but did use gestures to wave her past the security bait bills and
the dye pack. The man put the money into the black bag,
retrieved the note, and left the bank. A subsequent audit
disclosed that $13,816 was missing from Dunaway's cash drawer.
A few days later, on December 28, 1992, a stolen rental car
was located. It was a 1992 Ford Thunderbird. Whoever stole the
car apparently had a duplicate set of keys, because the rental
agency still had its keys when the car was stolen, and there was
no damage to the recovered vehicle and no evidence of forced
entry. In its trunk were the following: a black wig, fake beard
and mustache; blue coveralls; tennis shoes; a .38 caliber
revolver; a white clasp envelope, approximately 8 x 10 inches
large; and .38 caliber practice rounds were found in the envelope
and in the pockets of the coveralls. The white envelope was
submitted for fingerprint analysis. When checked, the rental
records for the Thunderbird revealed that the only local person
who had recently rented the vehicle before it was stolen was Paul
McCarty. McCarty had rented the vehicle on November 23, 1992,
and returned it on November 30, 1992.
On December 29, 1992, Paul M. McCarty purchased a blue 1993
Chevrolet pick-up truck for $18,272.01. He was allowed $1,500 on
a trade in, and he paid a down payment of $7,295.01 via a
cashier's check.
On February 11, 1993, a blue pick-up truck turned onto a
dead-end street. The driver turned into the driveway of a
residence, triggering motion detection lighting. The driver then
turned off the truck's headlights, backed out of the driveway to
turn the truck around, and parked the truck. Two women watched
from the window of their home as the man, who had turned into
their driveway, got out of the truck and walked to a nearby
street, toward the Magnolia Federal Bank. About 15 to 20 minutes
later, he returned to the truck and drove away.
The next day, a man entered and robbed the Magnolia Federal
Bank. He was wearing a black wig and fake beard, tennis shoes,
and coveralls. He carried a black bag with a zippered opening.
The man handed a typewritten note to the teller and, when she
"froze", he displayed a .45 caliber firearm. This time, he
demanded cash from three tellers. The man left the bank on foot
and got on a bicycle. A bank customer chased him. At some
point, the man stopped and searched his bag. In the process, he
emptied some of the money out onto the ground. The customer who
followed him hid between cars, heard gun fire--approximately two
shots--and assumed that the bank robber had retrieved a firearm
from the black bag and fired it. The bank robber got away.
3
However, approximately $8,000 of the stolen money was recovered
from the ground.
Meanwhile, the fingerprints found on the white envelope were
identified as those of McCarty. On February 24, 1993, a warrant
issued to arrest him, and to search his apartment and his blue
Chevrolet truck. The affidavit in support of the warrants stated
much of the above facts. McCarty was arrested and the searches
were performed on February 25, 1993. Among the items seized were
two sets of keys found in the blue Chevy truck.
Paul Martin McCarty was charged in an indictment with (count
1) robbery of the Sunburst Bank on December 23, 1992, in
violation of 18 U.S.C. § 2113(a); (count 2) robbery of the
Magnolia Federal Bank and jeopardizing the lives of bank
employees by the use of a dangerous weapon on February 12, 1993,
in violation of 18 U.S.C. §§ 2113(a) and (d); (count 3) use of a
firearm during a bank robbery on February 12, 1993, in violation
of 18 U.S.C. § 924(c)(1); (count 4) money laundering; and (count
5) forfeiture.
While incarcerated on these charges, McCarty shared a cell
block with Alan Lucero. Lucero notified his attorney that
McCarty had threatened certain witnesses and had described how he
committed the bank robberies. Lucero testified at trial.
According to Lucero, McCarty said he had taken the .38 and .45
caliber guns, as well as a .22 caliber gun, during two
residential burglaries. Lucero also testified that McCarty said
he had rented a Lincoln car and duplicated the keys, and had
4
later stolen the Lincoln and used it for the Magnolia Federal
Bank robbery. Based upon this information from Lucero, law
enforcement officers located the stolen Lincoln and found in its
trunk the .45 caliber semi-automatic gun, a .22 caliber gun, a
typewriter and typewriter ribbon, a wig and fake beard,
coveralls, and tennis shoes. One set of the keys that were found
in McCarty's blue truck fit the stolen Lincoln.
After trial, the jury convicted him of counts 1, 2, and 3
but found him not guilty of count 4. The Government dismissed
count 5. McCarty was sentenced to a total of 235 months
imprisonment. McCarty appeals his conviction and sentences.
DISCUSSION
ADMISSION OF RULE 404(B) EVIDENCE
McCarty asserts that the district court improperly allowed
admission of three types of extrinsic evidence. First, the court
permitted testimony about two burglaries which Lucero said
McCarty described. Second, the court permitted introduction of a
.22 caliber pistol which had no connection to any of the charged
offenses. Third, the court permitted Lucero to testify that
McCarty had threatened certain witnesses.
The district court's decision to admit extrinsic offense
evidence under Federal Rule of Evidence 404(b) will not be
disturbed absent a clear showing of abuse of discretion. United
States v. Bermea, 30 F.3d 1539, 1994 W.L. 45991 (5th Cir., No.
92-7349, Aug. 25, 1994), citing United States v. Bruno, 809 F.2d
1097, 1106 (5th Cir.), cert. denied, 481 U.S. 1057, 107 S.Ct.
5
2198, 95 L.Ed.2d 853 (1987). Federal Rule of Evidence 404(b)
provides as follows:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show action in conformity therewith. It may,
however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident, . . .
We review alleged violations of Rule 404(b) under the two-pronged
test of United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59
L.Ed.2d 472 (1979). That test requires that we verify (1) that
the evidence of extraneous conduct is relevant to an issue other
than a defendant's character, and (2) that it is not
substantially outweighed by its undue prejudice and is otherwise
admissible under Rule 403.1 Bermea, citing Beechum.
In order to determine relevance under the first prong, we
must address the threshold question of whether the government
offered sufficient proof demonstrating that the defendant
committed the alleged extrinsic offense. U.S. v. Ridlehuber, 11
F.3d 516, 522 (5th Cir. 1993), citing Beechum, 582 F.2d at 911.
If the proof is insufficient, the judge must exclude the evidence
because it is irrelevant. Ridlehuber, 11 F.3d at 523, quoting
Beechum, 582 F.2d at 913. Rule 104(b) supplies the standard for
1
Federal Rule of Evidence 403 provides as follows:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
6
determining the admissibility of extrinsic offense evidence:
"the preliminary fact can be decided by the judge against the
proponent only where the jury could not reasonably find the
preliminary fact to exist." Id. The second prong of the Beechum
analysis inquires whether Rule 403 has been satisfied, and we
must take care not to infringe upon the "broad discretion" of the
trial court regarding the relevance, probative value, and
prejudicial effect of evidence. Bermea (citations omitted).
We shall first examine the challenged testimony about the
burglaries. Vicky Phillips testified that her three-story Rankin
County house looks like a two-story house from the front because
two stories are built into a hillside so that it is actually
three stories in the back. She stated that her house had been
burglarized on November 30, 1992, and that the .45 caliber and
.22 caliber guns, recovered from the Lincoln, belonged to her and
her husband. Phillips verified that the serial numbers of the
.45 and the .22 matched those from her records. Barry Wood
testified that he had a single-story house in Rankin County that
was burglarized on November 30, 1992, and that the .38 caliber
Charter Arms revolver, recovered from the Thunderbird, belonged
to him. However, on cross-examination, he admitted that the only
reason he identified the revolver as his own is that he had been
informed that the revolver was traced back to the store where he
purchased it. Neither witness knew who had taken the guns, and
neither witness could identify McCarty.
7
The government argued that the burglaries were committed in
the planning and preparation for the charged offenses, that
Lucero had already testified that McCarty told him about the two
burglaries, and that this testimony is admissible for the purpose
of corroborating the confession that McCarty made to Lucero.
The district court allowed admission of the testimony as
corroboration of the testimony of Lucero, even though it stated
that it was difficult to precisely distinguish whether the acts
were exclusively extrinsic. After the jury retired for
deliberations, the district court stated the following:
I have concluded or I expressed to you that I had
concluded that Rule 404(b) is applicable and I so
instructed the jury with the approval of counsel for
the defendant. The record, of course, does reflect
that counsel for the defendant did object to the
testimony being admitted. I did not make the Beachum
[sic] findings at the time that I admitted the evidence
frankly because I hadn't decided that the testimony was
admissible on that basis in addition to the ground upon
which I admitted it at the time.
I do now find that in addition to the reason
previously given, the testimony was probative and
admissible under 404(b) to show plan or preparation for
the robberies that were committed and that under 403
the probative value was not substantially outweighed by
the danger of unfair prejudice.
The .45 and .22 caliber guns were positively identified by
Phillips. They had been recovered from the stolen Lincoln which
McCarty had rented, along with a typewriter, wig and fake beard,
and other items which Lucero testified that McCarty said he left
in the Lincoln. Testimony and rental records show that McCarty
rented the Lincoln for one-half hour and put five miles on it. A
set of keys to the Lincoln was found in McCarty's truck. The .38
8
caliber gun was identified by Wood as his own, although Wood did
not have serial number records to show conclusively that it was
his gun. Wood's .38 was taken when his home was burglarized on
the same date as the Phillips' home. It had been recovered from
the stolen Thunderbird which McCarty had rented, and which
contained the envelope with McCarty's fingerprints. Lucero
testified that McCarty said he had found the guns when he
burglarized a two-story dwelling and a single-story dwelling in a
particular area of Rankin County. There was sufficient evidence
for the jury to reasonably find that McCarty had taken the three
guns from the respective homes. The first prong of the test is
satisfied as to both burglaries.
As to the second prong, we find that the district court did
not abuse its wide discretion in determining that the probative
value outweighed the prejudicial effect of this testimony. There
was enough evidence, with the rental records for the two stolen
cars, the wigs and beards, and other testimonial and documentary
evidence, that we cannot say that the prejudicial effect of this
evidence substantially outweighs its probative value on issues
unrelated to McCarty's character.
McCarty also argues that the district court failed to make
adequate Beechum findings because it did not address the
necessary determination of whether or not there was sufficient
proof of the extrinsic evidence regarding the .38 and the .22
firearms. He further asserts that the district court incorrectly
concluded that Lucero's testimony about threats to witnesses was
9
not extrinsic evidence and, therefore, failed to make any of the
appropriate Beechum findings that there was sufficient proof of
this extrinsic evidence.
The district court did make the requisite determination that
the probative value of the challenged evidence outweighs the
danger of unfair prejudice. The district court is not required
to make a preliminary finding that the defendant committed the
extrinsic evidence. Bermea. If the court determines, after
introduction of the evidence, that the jury could not reasonably
find by a preponderance of the evidence that the alleged
extrinsic act occurred, however, the court must instruct the jury
to disregard the evidence. Id., citing Huddleston v. United
States, 485 U.S. 681, 690, 108 S.Ct. 1496, 1501-02, 99 L.Ed.2d
771 (1988).
The district court instructed the jury as follows regarding
Lucero's testimony and the Rule 403(b) evidence (emphasis ours):
The testimony of one who provides evidence against a
defendant as an informer for a reduced sentence in his
criminal case must always be examined and weighed by
the jury with greater care and caution than the
testimony of ordinary witnesses. You, the jury, must
decide whether the witness' testimony has been affected
by the benefits that the witness has received as a
result of being granted leniency. You should keep in
mind that such testimony is always to be received with
caution and weighed with great care. You should never
convict any defendant upon the unsupported testimony of
such a witness unless you believe that testimony beyond
a reasonable doubt.
During the trial you have heard evidence of acts
of the defendant which may be similar to those charged
in the indictment, but which were committed on other
occasions. You must not consider any of this evidence
in deciding that the defendant committed the acts
10
charged in the indictment, however, you may consider
this evidence for other very limited purposes.
If you find beyond a reasonable doubt from other
evidence in this case that the defendant did commit the
acts charged in the indictment, then you may consider
evidence of the similar acts allegedly committed on
other occasions to determine whether the defendant
acted according to a plan or in preparation for
commission of a crime. These are the limited purposes
for which any evidence of other similar acts may be
considered.
The challenged testimony of Lucero on direct examination is as
follows:
Q. . . . If you would, please, tell the jury why you
picked that point in your relationship with McCarty to
tell the authorities about what he told you.
A. Well, the main reason was that threats were made
from Mr. McCarty about certain witnesses and people
that had identified him in conjunction with the crimes
that he committed, and that the statement was made to
me that if he gained his freedom that he would seek to
harm those individuals for identifying him, possibly
killing them.
Q. And so was that part of your motivation, then, at
that point?
A. Yes. That was my major motivation.
Although there is no supporting evidence regarding McCarty's
alleged threats to certain witnesses, we find the jury
instruction sufficient. The jury was instructed not to use
unsupported testimony to convict McCarty unless it believed that
testimony beyond a reasonable doubt; and the jury was instructed
to use evidence of similar acts only for limited purposes.
Juries are presumed to follow the court's instructions. Zafiro
v. U.S., -- U.S. --, 113 S.Ct. 933, 939, 122 L.Ed.2d 317 (1993).
We find no reversible error.
11
MOTION TO SUPPRESS
McCarty asserts that the trial court erred in denying his
motion to suppress the evidence seized as part of the search of
the pickup truck and the Lincoln. He contends that the warrants'
underlying affidavit contains "improper hearsay information" and
"knowingly false statements." McCarty also challenges the
issuance of the warrant, asserting that the affidavit contained
insufficient evidence for the finding of probable cause.
In determining whether probable cause exists to order a
search, a magistrate must make a practical, common-sense decision
as to whether, given all the circumstances set forth in the
affidavit, there is a fair probability that evidence of a crime
will be found in a particular place. U.S. v. Byrd, No. 93-4998,
1994 WL 475833 (5th Cir. Sept. 1, 1994). Our review of the
sufficiency of the affidavit is independent of the district
court's and is not limited by the clearly erroneous standard of
review. U.S. v. McKeever, 5 F.3d 863, 865 (5th Cir. 1993)
(citations omitted). Like the district court, however, we owe
deference to the magistrate's determination of probable cause,
and we construe the affidavit in a common-sense manner. Id.
We review a district court's denial of a motion to suppress
due to the affidavit's failure to establish probable cause, using
the following two part test: (1) whether the good faith exception
to the exclusionary rule applies and (2) whether the warrant was
supported by probable cause. U.S. v. Mitchell, 31 F.3d 271 (5th
Cir. Aug. 25, 1994), citing U.S. v. Laury, 985 F.2d 1293, 1311
12
(5th Cir. 1993). Generally, if the good faith exception applies,
we need not reach the probable cause issue. Id.
Under the good faith exception, we uphold a search if the
officers reasonably relied on a search warrant, as long as the
warrant's underlying affidavit is not "so lacking in evidence of
probable cause as to render official belief in its existence
entirely unreasonable." See Mitchell, Id.; see also, United
States v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994); U.S. v.
Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992).
The instant affidavit satisfies the good faith exception.
Moreover, our review of the affidavit reveals that it presents
probable cause for the issuance of the search warrant. McCarty's
argument about hearsay fails, as hearsay is expressly allowed in
Rule 41(c)(1) of the Federal Rules of Criminal Procedure. Rule
41(c)(1) states that
If the federal magistrate judge or state judge is
satisfied that grounds for the application exist or
that there is probable cause to believe that they
exist, that magistrate judge or state judge shall issue
a warrant identifying the property or person to be
seized and naming or describing the person or place to
be searched. The finding of probable cause may be
based upon hearsay evidence in whole or in part. . . .
The affidavit contains enough supporting and/or corroborating
facts to render the hearsay contained therein sufficiently
reliable for the purpose of the magistrate's determination.
McCarty's argument regarding false statements and material
omissions also fails. Negligent omissions will not undermine the
affidavit. U.S. v. Martin, 615 F.2d at 329. Absent evidence of
an intentional material misrepresentation or omission in the
13
affidavit, the warrant will not be invalidated. Franks v.
Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676, 58 L.Ed.2d
667 (1978). The hearing on McCarty's motion to reconsider the
district court's denial of his motion to suppress revealed no
indication of intentional misrepresentation or omission. In
fact, the record reveals no misrepresentation by the affiant, and
no material omission. Accordingly, we find no error in the
district court's ruling. See and compare, U.S. v. Wake, 948 F.2d
1422, 1428-29 (5th Cir. 1991), cert denied, -- U.S. --, 112 S.Ct.
2944, 119 L.Ed.2d 569 (1992).
Our independent review of the affidavit reveals no error in
the district court's denial of McCarty's motion to suppress.
SUFFICIENCY OF THE EVIDENCE
McCarty argues that the district court erred in denying his
"motion for directed verdict"2 on count 1, bank robbery in
violation of 18 U.S.C. § 2113(a). Specifically, McCarty argues
that the evidence was insufficient to prove that he robbed the
Sunburst Bank "by force, violence and intimidation."
In order to prove a violation of 18 U.S.C. § 2113(a), the
Government must prove: (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, custody,
control, management, or possession (7) of a bank, credit union,
2
"Motions for directed verdict are abolished and motions
for judgment of acquittal shall be used in their place." Fed.
R. Crim. P. 29(a).
14
or savings and loan association. U.S. v. Van, 814 F.2d 1004,
1005-06 (5th Cir. 1987).
There is no assertion that McCarty used force or violence.
We are faced only with the question of whether the evidence was
sufficient to prove that he robbed the bank by intimidation. As
used in § 2113(a), the term "intimidation" means "to make fearful
or to put into fear." U.S. v. Higdon, 832 F.2d 312, 315 (5th
Cir. 1987) (internal quotations omitted), cert. denied, 484 U.S.
1075, 108 S.Ct. 1051, 98 L.Ed.2d 1013 (1988).
The Government is not required to show either an "express
verbal threat or a threatening display of a weapon." Id. Actual
fear need not be proven, if the acts of the defendant would
threaten an ordinary reasonable person. Id. Thus, the government
need show only that an ordinary person in the teller's position
would feel a threat of bodily harm from the perpetrator's acts.
U.S. v. Baker, 17 F.3d 94, 97 (5th Cir. 1994), cert. denied, 1994
WL 286410 (Oct. 3, 1994).
[I]ntimidation results when one individual acts in a
manner that is reasonably calculated to put another in
fear. Thus, from the perspective of the victim, a
taking "by intimidation" under section 2113(a) occurs
when an ordinary person in the teller's position
reasonably could infer a threat of bodily harm from the
defendant's acts. [Citations omitted.]
Higdon, 832 F.2d at 315. "Evidence that [the perpetrator's] acts
did induce fear in an individual victim is probative of whether
his acts were objectively intimidating." Id.
Using the "rational jury" standard, this Court recently
upheld a conviction for aiding and abetting bank robbery in
15
violation of § 2113(a). Baker, 17 F.3d at 96. Baker involved
two consecutive robbery attempts in which an 11-year old boy
presented tellers a note which contained an express threat of
bodily injury. Id. at 95. Both tellers testified that although
they were at first incredulous, they became fearful and felt
threatened. Id. at 97.
In Higdon, the victim-tellers both testified that they
complied with the robber's demands out of fear. 832 F.2d at 313.
The robber did not display a gun or verbally threaten them with
physical harm. Id. He did "order[] the two women to lie on the
floor and told them not to `dare' to get up." Id. Using the
"manifest miscarriage of justice" standard, this Court affirmed
the conviction for bank robbery in violation § 2113(a). Id. at
316.3
On December 23, 1992, a man entered the Sunburst Bank
wearing a fake beard, wig, dark clothing, gloves, and a cap and
carrying a black purse. Teller Robin Dunaway testified that as
soon as she saw this outfit that was "so abnormal," she knew she
"was fixing to be robbed." There were no other customers in the
bank at the time, and the only bank employees were two other
tellers and a secretary. The robber approached Dunaway's window,
3
This Court noted in Higdon, 832 F.2d at 316, that other
courts had found sufficient evidence of intimidation "under
similar or less compelling circumstances." 832 F.2d at 316
(citing U.S. v. Hopkins, 703 F.2d 1102 (9th Cir. 1983)(no threats
and unarmed); U.S. v. Slater, 692 F.2d 107 (10th Cir. 1982)(no
threats and unarmed); U.S. v. Robinson, 527 F.2d 1170 (6th Cir.
1975)(no express threat or display of weapons); U.S. v. Epps, 438
F.2d 1192 (4th Cir. 1971); U.S. v. Brown, 412 F.2d 381 (8th Cir.
1969)).
16
unfolded a note, and handed it to her. Dunaway testified that
the typewritten note said, "Be calm. This is a robbery."
Dunaway indicated that the note said more but she only "skimmed
the note because there was no doubt what it said." The robber
did not speak to her. He indicated to her through hand gestures
which denominations of bills to place on the counter and waved
her past the bait bills and dye pack. The robber did not display
a gun. The robber placed the money in the bag and "ran out the
front door."
Bank photographs of the robbery were introduced into
evidence. Dunaway testified that the robbery occurred over what
"seemed like a real long time. I would think it seemed real
long, probably almost a complete minute." She stated that she
"was, of course, nervous at the time." Dunaway described the
robber as "pretty tall. I'm five-six, so I said I would say six
feet to six-three." Dunaway also testified "I'll never forget
the wig and the face . . ." Id. at 62. She testified she did not
remember anything regarding other bank employees, that she never
took her eyes "off in front" of her counter, and that her mind
was not on what other employees were doing. Id. at 68-69.
Angela Cooper, the secretary at Sunburst testified that she
witnessed the robbery. She first noticed the bank was being
robbed when the robber "first walked in." She did not see a gun
during the course of the robbery.
McCarty argues that there was absolutely no proof whatsoever
at trial of intimidation. He argues that the only communication
17
between the robber and the teller was via the typewritten note.
He highlights that the teller did not "testify directly or by
suggestion that she was afraid."
The Government argues that "[t]he size differential between
[the robber] and the victim teller could certainly cause her to
feel threatened." It argues that the teller "indicated fear by
not taking the time to read the demand note." The Government
argues that "[o]ne will never know exactly what the note said
because the defendant took it with him. The jury could have
reasonably inferred that it contained a sufficient threat since
the teller complied promptly and even obeyed defendant's non-
verbal instructions to omit the security dye pack from the loot."
McCarty moved for a judgment of acquittal at the close of
the Government's case. The district court denied the motion.
The record does not reflect that the motion was renewed at the
conclusion of the evidence. Neither the pleadings in the record
nor the docket sheet reflect that any post trial motion for
acquittal was filed by the defendant.
This Court has held that if a defendant fails to renew his
motion for acquittal at the close of all evidence, we are limited
to a review for plain error. Under the plain error standard, we
reverse only where there was a manifest miscarriage of justice.
"Such a miscarriage 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." U.S. v. Pierre, 958 F.2d 1304, 1310 (5th Cir.) (en
18
banc), cert. denied, --- U.S. ---, 113 S. Ct. 280, 121 L.Ed.2d
207 (1992) (internal quotations and citations omitted). Although
there has been some question as to the distinction between the
plain error "miscarriage of justice" standard and the
"sufficiency of the evidence" standard,4 we are bound by the
precedent of this circuit, as reflected in Pierre and in U.S. v.
Thomas, 12 F.3d 1350, 1358 (5th Cir. 1994), cert. denied, ___
U.S. ___, 114 S.Ct. 1861, 128 L.Ed.2d 483 (1994) (finding the
plain error standard proper where the defendant fails to move for
judgment of acquittal at the close of evidence).
A jury could glean from Dunaway's testimony that she was
afraid. She stated she was nervous and that the bank robber's
appearance was unforgettable. Dunaway's initial reaction, when
she saw the strangely dressed man enter the bank, was that she
"knew" a robbery was about to occur. This man immediately walked
to her counter. Her intuitive suspicion was quickly confirmed by
the robber when he unfolded a note and presented it to her. A
jury could easily infer that the robber's appearance and actions
exacerbated her nervousness. Applying common sense, the jury
could reasonably conclude that the coercive actions of the robber
did intimidate Dunaway. The jury was also presented three
photographs (Government Exhibits 3, 4, and 5) of the Sunburst
robbery in progress. Jurors viewing these photographs could
readily see the foreboding presence of the long-haired, long-
4
See U.S. v. Pennington, 20 F.3d 593, 597 n.2 (5th Cir.
1994); see also, U. S. v. Davis, 583 F.2d 190, 198-199 (5th Cir.
1978) (Clark, J. concurring in part and dissenting in part).
19
bearded robber who confronted Dunaway. The instant record is
therefore far from "devoid" of evidence of intimidation in the
Sunburst Bank robbery: even a rational jury could have found,
beyond a reasonable doubt, that an ordinary person in Dunaway's
position would feel a threat of bodily harm from McCarty's acts.
Accordingly, we find no error in the district court's denial of
McCarty's motion for judgment of acquittal at the close of the
government's case, and we affirm as to McCarty's sufficiency of
the evidence claim.
CUMULATIVE ERROR
McCarty asserts as cumulative error (1) the admission of the
allegedly prohibited Rule 404(b) testimony, and (2) repeated
rulings by the district court which "overruled legitimate
objections of defense counsel". The Federal Rule of Evidence
Rule 404(b) argument is without merit, as discussed above. We
shall therefore examine the remaining two assertions.
McCarty contends that the district court repeatedly
overruled his counsel's legitimate objections such that it
undermined the trial process to such a degree that the conviction
should be overturned. He argues only two objections. First is
his objection to the admission of a photograph of the typewriter
ribbon used during the testimony of one of the government's
expert witnesses.
FBI Special Agent Lou Senter, a forensic document examiner,
testified as an expert witness about his examination of the
typewriter ribbon which had been recovered, with the typewriter,
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from the trunk of the stolen Lincoln. The typewriter ribbon and
cartridge were admitted into evidence as Government Exhibits 39
and 40. He testified he found on the ribbon--verbatim, including
retypes, strikeovers, and corrections--the entire text of the
demand note used by the robber in the Magnolia Federal Bank
robbery. Senter testified that the photographs accurately depict
the ribbon which contains the words of the demand note. It was
his opinion that the ribbon was the same ribbon used to type the
Magnolia bank robbery note.
According to McCarty, the government's failure to obtain the
photographs prior to trial rendered defense counsel unable to
obtain his own document expert in an attempt to rebut the
government's expert. However, McCarty has not challenged the
admission of Senter's testimony or report regarding the ribbon,
or the admission of the typewriter ribbon which is depicted on
the photographs. McCarty has made no showing that the presence
or absence of the photographs affected his ability to have his
own expert to examine Senter's report regarding the typewriter
ribbon, or to otherwise obtain or examine discoverable
information about the ribbon. We find no merit to this argument.
The second ruling McCarty challenges as cumulative error is
that the district court improperly overruled defense counsel's
objection to witness Jan Mickelberg's photo identification of
McCarty. At trial, defense counsel argued that the photographic
spread was not admissible because:
Ms. Mickelberg stated that the photograph of Paul
Martin McCarty resembled the facial structure and the
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age of the individual whom she had seen in the
neighborhood -- in her neighborhood on the evening of
February 11th of 1993. Ms. Mickelberg didn't recall
that the individual's hair in the photograph was
different in view of the fact that the person she saw
the hair was combed more in a downward fashion as
opposed to that in the photograph.
The district court allowed admission of the photographs used in
Mickelberg's identification. During her testimony, Mickelberg
did note distinctions between the man she observed on February
11, 1993 and the man who sat before her as the defendant at
trial. The jury heard testimony that, when shown the
photographs, Mickelberg selected one picture in the photographic
spread (McCarty's) and indicated that it looked like the man she
saw, but that there were some differences. McCarty cites no
authority for his assertion that Mickelberg's testimony renders
the photographic spread inadmissible. We find no error in this
district court ruling.
Having found no error, we accordingly find no merit to
McCarty's contention that these rulings constitute cumulative
error.
ADMISSION OF THE AFFIDAVIT
McCarty asserts that the district court erred in allowing
admission of the affidavit into evidence. The record reflects
that the affidavit was admitted for the limited purpose of
allowing the Government to refer to it or to read selected
portions during witness testimony. However, because there is a
statement in the affidavit that McCarty was on parole from
Louisiana for simple burglary, the district court stated that the
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affidavit was not to be presented to the jury. McCarty contends
that "the record of the bench conference does not reflect that
the court's clerk was present at the conference. There is,
therefore, no reason to assume that it was not given to the
jury." He requests a reversal of his conviction due to this
alleged error, or "at least a hearing to determine whether the
jury saw the affidavit."
McCarty has cited, and we have found, no statutory or
jurisprudential authority for his contention that these
circumstances either constitute reversible error or require a
remand for further inquiry. The record gives no indication that
the district court's instruction regarding the affidavit was
violated. McCarty also reasserts the allegations of false
statements and material omissions in the affidavit as discussed
above regarding probable cause to issue the search warrant. The
record does not support his allegations of false statements or
material omissions. McCarty's request is denied.
SENTENCING GUIDELINES
McCarty contends that he was improperly given a U.S.S.G.
2B3.1(b)(2)(C) five level enhancement for possession of a weapon
during the Sunburst Bank robbery.
A district court's application of the sentencing guidelines
is reviewed for legal correctness de novo. However, its factual
findings are reviewed for clear error. U.S. v. Wimbish, 980 F.2d
312, 313 (5th Cir. 1992), cert. denied, --- U.S. --, 113 S.Ct.
2365, 124 L.Ed.2d 272 (1993); U. S. v. Smallwood, 920 F.2d 1231
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(5th Cir. 1991), cert. denied, -- U.S. --, 111 S.Ct. 2870, 115
L.Ed.2d 1035 (1991).
McCarty's argument amounts to an assertion that there was
insufficient evidence upon which to base this enhancement because
"[t]he only verification for this was contained in the inherently
suspect testimony of Alan Lucero to the effect that Mr. McCarty
told him that he left a .38 in the Thunderbird that he had the
gun as a backup." McCarty correctly points out that the finding
of the gun in the Thunderbird does not, in and of itself,
establish that McCarty possessed a gun at the time of the
offense. However, viewing the evidence as a whole, this factual
finding by the district court is not clearly erroneous.
Accordingly, we do not disturb the district court's application
of U.S.S.G. 2B3.1(b)(2)(C).
McCarty next contends that he was improperly given a
U.S.S.G. 2B3.1(b)(2)(A) seven level enhancement for the discharge
of a weapon in connection with the Magnolia Federal Bank robbery.
As with his previous argument, this argument amounts to an
assertion that there was insufficient evidence upon which to base
this enhancement. Bruce Dent, the Magnolia Federal Bank customer
who chased McCarty outside the bank, testified that when he saw
McCarty stop and begin to search the black bag, he hid between
nearby cars. Dent stated that McCarty pulled out a gun and fired
shots, but on cross examination stated that he assumed that
McCarty had retrieved a gun from the bag and fired the shots he
heard. McCarty asserts that this testimony, alone, was
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insufficient to support this enhancement. He notes that no spent
casings were found and no verification that shots were fired. We
disagree.
The evidence contained more than Dent's testimony. There
was also the following evidence: the bank robber had brandished a
firearm in the bank; the .45 that was recovered from the stolen
Lincoln, along with the typewriter, wig, and other attire worn by
the bank robber; McCarty's statement to Lucero that he had used
the .45 during the Magnolia bank robbery; and the money found
where the bank robber had stopped and emptied out some of the
bag's contents. On this record, we find no clear error in the
district court's application of this sentencing guideline.
McCarty also contends that the district court used the wrong
amount in calculating the loss to the Magnolia Federal Bank. He
asserts that the district court failed to take into account the
$8,000 that was immediately recovered. Thus, according to
McCarty, he should not have received the one point enhancement
under U.S.S.G. § 2B3.1(b)(6)(B). This argument is meritless.
The § 2B3.1(b)(6)(B) valuation of loss is described in the
application notes to § 2B1.1. See Application Notes, § 2B3.1.
"Loss" means the value of the property taken, damaged, or
destroyed. Application Notes, § 2B1.1. There is no requirement
that this amount be offset by the amount recovered, for the
purposes of determining the offense level. The district court
did not err in considering the full $13,816 taken in the Magnolia
Federal Bank robbery in applying the loss provision of § 2B3.1.
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DOUBLE JEOPARDY
Finally, McCarty asserts that his convictions for violation
of 18 U.S.C. §§ 2113(a) and (d), and 18 U.S.C. § 924(c)(1), when
combined with the U.S.S.G. 2B3.1(b)(2)(A) seven level
enhancement, constitutes double jeopardy. As support for this
assertion, McCarty cites Simpson v. United States, 435 U.S. 6, 98
S.Ct. 909, 55 L.Ed.2d 70 (1978), Busic v. United States, 446 U.S.
398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980), and McLain v. United
States, 643 F.2d 911 (2nd Cir. 1981) (which relies on Simpson and
Busic). However, this court has stated that the 1984 amendment
to 18 U.S.C. § 924(c) statutorily overruled Simpson and Busic.
See U.S. v. Holloway, 905 F.2d 893, 894 (5th Cir. 1990). Where
Congress authorizes cumulative punishments for even the same
offense, the Double Jeopardy Clause of the Fifth Amendment is not
offended. Holloway, Id., citing Missouri v. Hunter, 459 U.S.
359, 367, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Congress
authorized the penalties to which McCarty was sentenced. These
penalties were likewise taken into consideration in the drafting
of U.S.S.G. 2B3.1(b)(2)(A) We find no merit to McCarty's
assertion of double jeopardy.
CONCLUSION
For the foregoing reasons, McCarty's convictions and
sentences are AFFIRMED.
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