U.S. v. Burton

• Citation: 126 F.3d 666
• Decision Date: 17 October 1997
• Docket Number: No. 96-20350,96-20350
• Parties: 47 Fed. R. Evid. Serv. 1236 UNITED STATES of America, Plaintiff-Appellee, v. Joshua Mazique BURTON; Quinton B. Carr, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 666

126 F.3d 666

47 Fed. R. Evid. Serv. 1236

UNITED STATES of America, Plaintiff-Appellee, v. Joshua Mazique BURTON; Quinton B. Carr, Defendants-Appellants.

No. 96-20350.

United States Court of Appeals Fifth Circuit.

Oct. 17, 1997.

Julia Bowen Stern, Paula Camille Offenhauser, Assistant U.S. Attorney, Houston, TX, for Plaintiff-Appellee.

Cheri Lynn Duncan, Houston, TX, for Defendant-Appellant Burton.

Jerome Godinich, Jr., Rosa Alexander Eliades, Houston, TX, for Defendant-Appellant Carr.

Appeals from the United States District Court for the Southern District of Texas.

Before DUHE and BARKSDALE, Circuit Judges, and COBB, District Judge. ¹

DUHE, Circuit Judge:

Appellants Joshua Burton and Quinton Carr were convicted and sentenced for conspiracy to commit robbery, in violation of 18 U.S.C. § 371 ("conspiracy"), and for attempted robbery by force, violence and intimidation, in violation of 18 U.S.C. §§ 2113(a) and 2 ("bank robbery"). On appeal, Appellants contend the Government's evidence was insufficient to convict them of either offense and that the district court erred in adding a six-level increase to their offense levels for "otherwise using a firearm." We affirm.

BACKGROUND

On December 21, 1994, two armed men attempted to rob Bank One in Missouri City, Texas at around 2:30 p.m. The men were dressed in grey sweat suits and wore black masks. They pointed guns at the bank employees and threatened to kill the employees if they did not cooperate. After unsuccessfully attempting to enter the bank vault, the men abandoned their robbery attempt. Before leaving, the robbers threatened to blow up the bank and left two small packages they removed from a black duffel bag. The packages were actually shoe boxes containing road flares, wires and an alarm clock and could not be detonated. The only description of the robbers the bank employees could provide was that the skin around their eyes not covered by the masks revealed the men were African-American.

A witness using the ATM outside the bank saw two men in grey sweat suits run out of the bank carrying a black duffel bag, enter a parked blue car, and drive away, apparently driven by a third man. Policemen soon arrived and found the car abandoned, with the motor running, at a nearby car wash. The car was later determined to belong to Quinton Carr ("Carr"). Around midnight on December 22, the morning after the robbery attempt, Carr called the police and reported the car stolen.

The Government alleged that Joshua Burton ("Joshua") and his cousin, Wilton Burton ("Wilton"), actually entered the bank, and that Carr (Joshua's cousin and Wilton's brother) allowed his car to be used for the getaway and also picked up Joshua and Wilton after the robbery. Wilton gave a statement to police apparently implicating Joshua and Quinton in the robbery, but recanted that statement at trial, claiming he had confessed only because policemen were beating him. After a trial in which the Government relied largely on circumstantial evidence, Appellants were convicted on both counts.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

In reviewing the sufficiency of the evidence, we view the evidence and all inferences to be drawn from it in the light most favorable to the verdict to determine if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Broussard, 80 F.3d 1025, 1030 (5th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 264, 136 L.Ed.2d 189 (1996). "The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence." United States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.1994). The standard of review is the same regardless whether the evidence is direct or circumstantial. United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir.1993).

To establish a conspiracy 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. United States v. Gray, 96 F.3d 769, 772-73 (5th Cir.1996), cert. denied, --- U.S.----, 117 S.Ct. 1275, 137 L.Ed.2d 351 (1997). The conspiracy need not be proved by direct evidence, but agreement may be inferred from circumstantial evidence, such as concert of action. United States v. Schmick, 904 F.2d 936, 941 (5th Cir.1990). "When the [G]overnment attempts to prove the existence of a conspiracy by circumstantial evidence, each link in the inferential chain must be clearly proven." United States v. Galvan, 693 F.2d 417, 419 (5th Cir.1982). Proof of "mere association" with persons involved in criminal activity is insufficient, by itself, to establish participation in a conspiracy. Id. 693 F.2d at 420. Likewise, familial relationships alone will not support a conspiracy conviction; "[i]nferences drawn from familial relationships or mere knowing presence, however, may be combined with other circumstantial evidence to support a conspiracy conviction." Broussard, 80 F.3d at 1031, citing United States v. Williams-Hendricks, 805 F.2d 496, 503 (5th Cir.1986).

To convict of bank robbery under 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, or savings and loan association. United States v. McCarty, 36 F.3d 1349, 1357 (5th Cir.1994).

A person who aids or abets the commission of a crime is punishable as a principal. 18 U.S.C. § 2. To prove aiding and abetting, the Government must show that the defendant (1) associated with the criminal venture; (2) participated in the venture; and (3) sought by action to make the venture succeed. United States v. Salazar, 66 F.3d 723, 729 (5th Cir.1995).

A. Joshua Burton

1. Testimony of Wilton Burton

Wilton Burton made a videotaped statement to the police in which he apparently implicated the Appellants in the planning and commission of the bank robbery. He testified for the Government under a grant of both state and federal immunity. At trial, however, Wilton recanted his earlier statement, claiming that he had made it only because the police were beating and kicking him. The court allowed a portion of his videotaped statement to be played before the jury, but only for the purpose of impeachment, to demonstrate Wilton's demeanor during the taping. The substance of most of Wilton's statement is not of record; the Government may thus not rely on it as evidence of Joshua Burton's guilt. ² The Government did try, however, to elicit from Wilton on direct examination what he told the police.

At trial, Wilton categorically denied any involvement in or knowledge of the attempted robbery. ³ He did admit on direct examination however, to having made certain admissions to agents during questioning:

Q: You told [F.B.I. agent Johnson] you were one of the men that walked into the bank?

A: Yes.

* * * * * *

Q: You said Joshua [Burton] was the other man in these photographs you looked at? (referring to photographs of the robbers taken by bank cameras)

A: Yes.

Wilton also admitted to telling police that Carr picked him up at his cousin Christopher Spooner's house early on the morning of the robbery and that they went to see their cousin, Craig Burton; ⁴ that Wilton, Joshua, Carr, Spooner, and Craig Burton had robbed the bank; and, that he and Joshua had gone to rob the bank in Carr's automobile. Of course, Wilton denied that these statements were true; he admitted only that he had made them, but while under duress.

2. Asia Morgan's Testimony

The court admitted against Joshua Burton the testimony of Asia Morgan regarding one conversation she overheard between her husband, Christopher Spooner, and Wilton Burton and another she herself had with Wilton. Christopher Spooner is Wilton Burton's cousin; Wilton regularly spent the night at Asia and Christopher's apartment.

On appeal, Joshua Burton contends the court erred in admitting Asia's testimony because it was hearsay and did not fall within the "co-conspirator" exception of Federal Rule of Evidence 801(d)(2)(E). ⁵ Before admitting a co-conspirator's statement under this Rule, the court must determine by a preponderance of the evidence (1) that there was a conspiracy involving the declarant and the non-offering party, and (2) that the statement was made "during the course and in furtherance of the conspiracy." Bourjaily v. U.S., 483 U.S. 171, 175, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987); United States v. McConnell, 988 F.2d 530, 533 (5th Cir.1993). In making that determination, the court may consider the hearsay statements sought to be admitted. Bourjaily, 483 U.S. at 181, 107 S.Ct. at 2781-82. Joshua argues that there was insufficient evidence to find he was a member of the conspiracy. He also maintains, in any case, that the statements testified to by Asia Morgan were not "in furtherance of" the conspiracy.

The court found, by a preponderance of the evidence, that Joshua was a member of a conspiracy including Wilton Burton and Quinton Carr. The court made no finding, however, whether the statements Asia testified to were "in furtherance of" the conspiracy.

We must first address whether Joshua Burton adequately raised these issues in the district court. An appellant must raise an objection to the admission of evidence at trial such that the issue is presented to the district court "with sufficient specificity." United States v. Maldonado, 42 F.3d 906, 910 (5th Cir.1995). A sufficiently specific objection is necessary at trial so that "testimony could have been taken, and argument received, on that issue; and [so that] the district court...