U.S. v. Smith, 98-50829

• Decision Date: 14 February 2000
• Docket Number: No. 98-50829,98-50829
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KIMBERLY S. SMITH and CARMELITA MITCHELL, Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 884

203 F.3d 884 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KIMBERLY S. SMITH and CARMELITA MITCHELL, Defendants-Appellants.

No. 98-50829

UNITED STATES COURT OF APPEALS, Fifth Circuit

February 14, 2000

[Copyrighted Material Omitted]

Appeals from the United States District Court for the Western District of Texas

Before KING, Chief Judge, and DUHE and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

In this consolidated direct appeal, Kimberly S. Smith ("Smith") and Carmelita Mitchell ("Mitchell") seek vacatur of the judgments of conviction and sentences entered by the United States District Court for the Western District of Texas, Judge Orlando Garcia, presiding. Having concluded an exhaustive review of the record and for the reasons set forth below, we find no error and therefore affirm both Smith's and Mitchell's convictions and sentences.

I. BACKGROUND

The two appellants were named, along with Talayah Sullivan ("Sullivan"), Stephanie Graves ("Graves"), and Nekeidra Shawon Lewis ("Lewis"), in a two-count, second superseding indictment returned in the San Antonio Division of the Western District of Texas on April 1, 1998. The conspiracy alleged in that indictment charged the five co-defendants with conspiring to commit bank robbery; more specifically, conspiring to take from the person and presence of another, by force, violence and intimidation, a sum of money belonging to and in the care, custody, control, management and possession of the Bank of America, a bank whose deposits were then insured by the FDIC, all in violation of 18 U.S.C. 371 and 2113(a). As the manner and means of the conspiracy, the government alleged that the defendants obtained information concerning bank procedures from co-conspirator Smith, who was employed at the Bank of America.

With respect to the indictment returned against the defendants, Count One charged all five co-defendants with conspiracy to commit bank robbery, in violation of 18 U.S.C. 371 and 2113(a); and Count Two charged all five with aiding and abetting bank robbery and using a dangerous weapon in the commission of the offense, in violation of 18 U.S.C. 2, 2113(a), and 2113(d). Sullivan, Graves, and Lewis pleaded guilty, and pursuant to their plea and cooperation agreements, Graves and Lewis testified on behalf of the government during the jury trial of Appellants Smith and Mitchell.

On May 8, 1998, the jury returned its verdict, finding Smith guilty on Counts One and Two and Mitchell guilty on Count One only. Smith was sentenced to a 60-month term of imprisonment for Count One and a 175-month term of imprisonment for Count Two, both sentences to be served concurrently, followed by a three-year term of supervised release on Count One and a concurrent five-year term of supervised release on Count Two. Mitchell received a 60-month term of imprisonment, followed by a three-year term of supervised release. Both appellants, along with their convicted co-defendants were jointly and severally ordered to pay $68,417 in restitution to the Bank of America,¹ with fines being waived based on the defendants' inability to pay.

II. DISCUSSION

The appellants have each raised numerous issues, several of which overlap one another. We will address the various issues below, roughly in a chronological sequence, with trial matters addressed first and sentencing matters addressed last.

A. Sufficiency of the Evidence

Mitchell argues that the evidence presented to the jury was insufficient to support her conviction. The standard of review for a sufficiency of evidence claim is whether, after viewing the evidence and the reasonable inferences which flow therefrom in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See United States v. Jones, 185 F.3d 459, 464 (5th Cir. 1999) (citing Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781 (1979)); United States v. Mulderig, 120 F.3d 534, 546 (5th Cir. 1997), cert. denied, 118 S. Ct. 1510 (1998).

In reviewing a sufficiency of evidence claim for conspiracy to commit bank robbery, we are guided by the following principles set forth in United States v. Burton, 126 F.3d 666 (5th Cir. 1997):

"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, 117 S. Ct. 1275 (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.

Burton, 126 F.3d at 669.

Here, Mitchell alleges that her conviction was almost completely dependent on the testimony of her alleged accomplices. She argues that her accomplices' testimony, though perhaps not facially incredible, was "entirely unsubstantial," and thus, under United States v. Garner, 581 F.2d 481 (5th Cir. 1978), her conviction may not rest solely upon the uncorroborated "unsubstantial" testimony of her accomplices.

We note that Mitchell failed to move for judgment of acquittal at the close of the government's case, and that she also did not so move for judgment of acquittal at the close of evidence. Thus, under United States v. Vaquero, 997 F.2d 78, 82 (5th Cir. 1993), this panel must restrict its sufficiency review to whether Mitchell's convictions resulted in a "manifest miscarriage of justice," which exists only if the record "is devoid of evidence pointing to guilt or if the evidence on a key element of the offense is so tenuous that a conviction would be shocking." Id. (citing United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir. 1992)). Unfortunately for Mitchell, our precedent mandates this narrowly restricted review of the sufficiency of evidence in light of her failure to ever move for a judgment of acquittal. Through this narrow lens we have considered all of the evidence presented in a light most favorable to the government, and have given the verdict the benefit of all reasonable inferences and credibility determinations.

Our exhaustive review of the record leaves us with no doubt that there was enough evidence to satisfy the standards set forth above. The evidence, when construed in favor of the verdict, and with all reasonable inferences drawn in favor thereof, reveals that Graves, Smith, and Sullivan met at Mitchell's house where they planned the bank robbery. At the meeting, Smith (the Bank of America insider) instructed Mitchell and Sullivan on various aspects of how to conduct the robbery. On the day of the robbery, Mitchell called Graves while she was en route to the bank to warn that they should wait because the bank manager was still there. And after the robbery, the evidence reveals that Graves drove to Mitchell's sister's house where Mitchell greeted them. Mitchell helped separate the money and Mitchell told the others to take the bands off the money because they may have contained tracking devices. Mitchell and Sullivan took the bands and burned them. And finally, Mitchell met with Sullivan, Graves, and Smith to discuss hiring a lawyer to represent Smith; Mitchell received $499 from Graves for the lawyer fund.

From this evidence, a jury could most certainly have reasonably inferred that Mitchell voluntarily joined the conspiracy knowing its unlawful purpose and that she committed at least one overt act in furtherance of the conspiracy. Furthermore, and in light of Mitchell's having failed to properly preserve her sufficiency claim, we are unable to conclude that the record is devoid of any evidence pointing to her guilt or that the evidence on a key element of her offense of conviction is so tenuous that a conviction would be shocking. For these reasons, Mitchell is not entitled to relief on this issue.

B. Alleged prosecutorial misconduct

Both appellants argue for the first time on appeal that the prosecutor committed misconduct by failing to call a witness referenced during opening statements (specifically, Sullivan), and that this misconduct served to deny them a fair trial. Since this issue was not presented to the trial court, it is to be deemed waived unless the lower court's action constituted plain error. See United States v. Mann, 161 F.3d 840, 867 n.91 (5th Cir. 1998), cert. denied, ___ U.S. ___, 119 S. Ct. 1766 (1999); Fed.R.Crim.P. 52(b) (allowing for notice of plain errors affecting substantial rights which were not presented to the trial court). If the error complained of for the first time on appeal is plain and affected substantial rights, this Court may provide relief. See United States v. Gaudin, 115 S. Ct. 2310, 2322 (1995) (stating that if there is a forfeited error, which is plain, and which affects substantial rights, the decision to correct that forfeited error is in the sound discretion of the Courts of Appeals). And under this standard, we should not exercise our discretion to correct a forfeited error unless the error "seriously...