U.S. v. Laury

• Decision Date: 02 March 1993
• Docket Number: No. 91-8649,91-8649
• Citation: 985 F.2d 1293
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Felmon Lakeith LAURY, a/k/a Felmon Keith Ashley, a/k/a Walter Ray Nicholson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1293

985 F.2d 1293

UNITED STATES of America, Plaintiff-Appellee, v. Felmon Lakeith LAURY, a/k/a Felmon Keith Ashley, a/k/a Walter Ray Nicholson, Defendant-Appellant.

No. 91-8649.

United States Court of Appeals Fifth Circuit.

March 2, 1993.

Linda M. Gassaway, Waco, TX (court-appointed), for defendant-appellant.

John A. Phinizy, Asst. U.S. Atty., Richard L. Durbin, U.S. Atty., William W. Johnston, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, TX, for plaintiff-appellee.

Appeal from the United States District Court For the Western District of Texas.

Before GOLDBERG, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant Felmon Lakeith Laury appeals his conviction for robbery of a bank by force and violence and by intimidation, in violation of 18 U.S.C. § 2113(a) (1988). Laury also challenges the district court's calculation of his sentence. Finding no error, we affirm.

I

On December 19, 1988, at approximately 12:15 p.m., an armed man entered Planters National Bank in Rosebud, Texas. The robber was wearing a pair of light-colored jeans, Puma tennis shoes, and a dark bandanna across his face. From atop a teller's counter, the robber demanded that the bank employees give him all of their money. After forcing the bank employees into the vault, the robber left the bank with over $130,000, including $300 in dimes. The robber left a shoe impression on the countertop.

FBI agents received a tip from a confidential informant ("CI") that, according to one of Laury's friends, Laury robbed a bank in Rosebud, Texas in December 1988. In addition, the CI stated that Laury had recently purchased a number of expensive items, even though he was unemployed. The CI also stated that Laury was using an alias and identified Laury's place of residence. Based on the CI's information, FBI agents obtained a search warrant for Laury's residence. ¹ Executing the search warrant, FBI agents seized a pair of light-colored jeans, a blue bandanna, a bag containing $189.60 in dimes, a pair of Puma tennis shoes, numerous purchase receipts, and a photograph of Laury displaying large sums of money. A special agent in the FBI laboratory compared the shoe print impression left by the robber with the tennis shoes found in Laury's apartment, and found that the two shared common characteristics. Laury was thereafter arrested. Immediately after he received his Miranda warnings, Laury told the FBI agents that he was the only adult male living in his apartment and all of the men's clothing belonged to him. He also admitted that he made numerous large cash expenditures between December 1988 and January 1989. He claimed he obtained his money from two jobs. In addition, Laury stated that his girlfriend, DeShannon Cooper ("Dinky"), who was on welfare, and Dinky's grandmother both gave him some of the money. Laury also informed the FBI agents that he had been in Calvert, Texas (near Rosebud) a few days before Christmas. Laury denied robbing the bank.

Laury was subsequently indicted for robbery by force and violence and by intimidation, in violation of 18 U.S.C. § 2113(a) (1988). Before trial, Laury moved to suppress the evidence seized from his apartment and the statements he made to FBI agents following his arrest. The district court denied both motions. At trial, Laury testified that he had obtained most of the money he spent by robbing a drug dealer of $19,000. Furthermore, Laury and three alibi witnesses testified that Laury was in Dallas, attending his cousin's birthday party on the date of the robbery. Laury also testified that one of his relatives owned the Puma tennis shoes. Nevertheless, the jury found Laury guilty.

At sentencing, the district court arrived at a total offense level of 26, and a criminal history category of VI. The district court denied Laury's objection to a two-point increase in his offense level for obstruction of justice. The district court upwardly departed from the sentencing guideline range of 120-150 months because of Laury's recidivism and display of violence. Laury was sentenced to 175 months imprisonment, followed by three years of supervised release. In addition, Laury was ordered to pay restitution of $130,068.00, as well as a $50 mandatory assessment.

II

Laury appeals his conviction and sentence, contending that:

(a) the district court erroneously submitted an aiding and abetting instruction to the jury;

(b) the prosecution improperly suggested that he and his witnesses should have come forward sooner with his alibi, depriving him of a fair trial;

(c) the evidence was insufficient to sustain the jury verdict;

(d) the prosecutor misstated the testimony of witnesses, depriving him of a fair trial;

(e) the district court erred in adding two points to his offense level for obstruction of justice;

(f) the district court abused its discretion in upwardly departing from the guidelines (g) the district court erred in denying his motion to suppress evidence seized from his residence; and

(h) the district court erred in denying his motion to suppress statements he made to FBI agents after his arrest.

III

A

Laury first alleges that the district court erred in instructing the jury that, under 18 U.S.C. § 2 (1988), whoever aids or abets the commission of an offense is punishable as the principal. Laury claims that the jury convicted him as the principal pursuant to the aiding and abetting instruction, ² even though there was insufficient evidence that the robber was aided and abetted. ³ Therefore, Laury argues that his conviction should be reversed.

"The standard of review of a defendant's claim that a jury instruction was error is 'whether the court's charge, as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of law applicable to the factual issues confronting them.' " United States v. Ojebode, 957 F.2d 1218, 1228 (5th Cir.1992) (quoting United States v. Stacey, 896 F.2d 75, 77 (5th Cir.1990)), cert. denied, --- U.S. ---, 113 S.Ct. 1291, 122 L.Ed.2d 683 (1993). The court " 'may not instruct the jury on a charge that is not supported by the evidence.' " Id. (quoting United States v. Ortega, 859 F.2d 327, 330 (5th Cir.1988)). After reviewing the record, we conclude that the aiding and abetting charge was supported by the evidence. Laury testified that he did not rob Planters National Bank. See Record on Appeal, vol. 5, at 319. The bank vice-president testified that he felt that the bank robber must have had an accomplice. See Record on Appeal, vol. 5, at 63-64. The record shows that: (1) Laury expended large amounts of cash following the date of the bank robbery; (2) clothing (Puma tennis shoes, a pair of light-colored jeans, and a blue bandanna) was found in Laury's apartment that was similar to the clothing the robber wore (Puma tennis shoes, a pair of grey or light-colored jeans, and a blue or black bandanna); (3) Laury initially stated to FBI agents that he owned the Puma tennis shoes seized from his apartment; (4) the shoeprint impression left by the robber corresponded in size, design, mold characteristics, and wear pattern with the Puma tennis shoes found in Laury's closet; and (5) $189.60 in dimes were found in Laury's apartment (the robber took $300.00 in dimes from the bank). Such evidence is sufficient to support the submission of an aiding and abetting instruction. Therefore, the district court did not err in submitting the aiding and abetting instruction to the jury.

Even assuming the district court erred in submitting the aiding and abetting instruction, the error was harmless. See 28 U.S.C. § 2111 (1988) (A judgment will not be reversed on account of error that is harmless.). Absent the aiding and abetting instruction, the jury still could have convicted Laury as the principal based on the same evidence that suggested he aided and abetted the robber. ⁴ The standard of review for judging the sufficiency of circumstantial evidence is "whether [, viewing the evidence in the light most favorable to the government,] a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." United States v. Salazar, 958 F.2d 1285, 1294 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 185, 121 L.Ed.2d 129 (1992). Because a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt on each element of the offense, the district court's error, if any, in submitting the aiding and abetting instruction was harmless.

B

Laury claims that his rights to due process and against self-incrimination were violated because (1) the prosecution used his silence to impeach him at trial by suggesting that he should have come forward sooner with his alibi, and (2) the prosecution suggested that Laury's alibi witnesses should have come forward sooner with his alibi. At trial, Laury and his alibi witnesses testified that Laury was at his cousin's birthday party in Dallas on the date of the robbery. Neither Laury nor the witnesses told authorities about the alibi prior to trial.

The alleged improper comments occurred during the prosecutor's cross-examination of Laury and in his closing argument:

Q: When did you call Mr. Farnsworth or Mr. Seale or anybody in the FBI and say, "Wait a minute, you've got the wrong guy, here's what really happened"? When did you do that?

A: At no time.

Q: When did you call the FBI, Mr. Seale, Mr. Farnsworth or the United States Attorney's office and say, "It couldn't have been me on December the 19th, 1988, because I was at a birthday party"? When did you do that?

A: I called the FBI agent--

Q: Did you call him and tell him that you were somewhere else on that day?

A: I just told him that I didn't commit no robbery.

Q: But you didn't tell him where you were, you didn't tell him about your alibi?

A: No, sir, and they didn't ask.

Q: Waited until you get to court and that's when you're going to have it all come out?

A: Well, I...