* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10100

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

JIMMY WHITEHEAD, also known as Jimmy Mark Edward Whitehead,

Defendant–Appellant.

Appeal from the United States District Court 

for the Northern District of Texas 

No. 4:06-CR-130-ALL

Before DAVIS, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

Jimmy Mark Edward Whitehead was prosecuted pursuant to 18 U.S.C.

§ 3112(a) for bank robbery, and pursuant to 18 U.S.C. § 924(c)(1)(A)(ii) for

brandishing a firearm during a crime of violence. His first trial ended in

mistrial; a jury found him guilty of both crimes in a second trial. On direct

appeal, he argues that the district court erred by: (1) failing to dismiss at the

conclusion of his first trial on double jeopardy grounds; (2) failing to suppress

out-of-court and in-court identifications by two witnesses; (3) denying the

United States Court of Appeals

Fifth Circuit

F I L E D

December 11, 2007

Charles R. Fulbruge III

Clerk
No. 07-10100

1 See FED. R. CRIM. P. 29.

2 United States v. Pennell, 409 F.3d 240, 243 (5th Cir. 2005). 

3 United States v. Redd, 355 F.3d 866, 872 (5th Cir. 2003).

4 United States v. Hernandez-Bautista, 293 F.3d 845, 853 (5th Cir. 2002).

2

defendant’s motion for judgment of an acquittal due to insufficient evidence;

(4) construing 18 U.S.C. § 924(c)(1)(A)(ii) as stating a minimum rather than a

maximum prison term of seven years; and (5) denying the defendant’s motion for

a downward departure due to a purported sentencing disparity. We lack

jurisdiction to address the fifth issue and otherwise affirm.

I

We first consider whether the district court erred in denying Whitehead’s

motion for judgment of acquittal pursuant to Rule 29.1 Whitehead contends the

evidence is insufficient to support his conviction for participating in the robbery

of a credit union in Arlington, Texas and brandishing a gun during that robbery.

We review challenges to evidentiary sufficiency de novo,

2

viewing the evidence

in the light most favorable to the government and making all reasonable

inferences and credibility choices in favor of the conviction.3 We will uphold the

conviction if a “rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.”4

The evidence reflects that a teller was accosted by two armed young black

males wearing gloves, ski masks and coveralls as she entered the back door of

the credit union at approximately 8:00 a.m. to prepare to open it for the day’s

business. Once inside, the robbers threatened to harm the teller if they saw a

policeman. During the hold-up, the two gunmen spoke to at least one other

accomplice using push-to-talk features of cell phones while inside the credit

union. They absconded with $453,600 in cash, which they placed in a box after

a plastic bag they had used to hold the bills split open. They also removed and
No. 07-10100

3

took a video surveillance tape. Once the robbers had fled, the teller called 911

at 8:26 a.m.

Cornelius Kiser lived down the street from the credit union, and the

morning of the robbery he saw a black male wearing a white tank top walking

down the street near the credit union. He thought this attire was odd because

it was raining and cold that January morning. A few minutes later, Kiser

observed the same man in the breezeway of an apartment complex across the

street “grab a couple of bags and a box and leave.”

Jorge Juarez lived in an apartment near the credit union and saw a black

male wearing a white “muscle tee” walk back and forth from the street to an

apartment stairwell for ten to fifteen minutes the morning of the robbery. Both

Juarez and Kiser identified Whitehead from a photo line-up six months later,

and Juarez identified Whitehead at trial.

Another area resident, Ernest Harden, a convicted sex offender, saw a

black male throw something into bushes that stood in front of an apartment

balcony across the street from his home at approximately 8:30 the morning of

the robbery. The man Harden observed wore a white “muscle shirt” and

appeared to be talking on a cell phone.

The day after the robbery, Jackie Sue Kyles, who lived in the apartment

with the balcony Harden identified, found a ski mask and gloves on her balcony

and called police. Whitehead’s DNA was found inside both gloves but not on the

ski mask. The DNA of Edward Crain and unidentified others was found on the

ski mask.

Edward Crain was apprehended aboutthree months after the credit union

robbery and confessed to participating in it. He also admitted to participating

in two subsequent bank robberies carried out with similar methods. During

initial questioning, Crain did not name Whitehead as a participant in any of the

crimes, but he ultimately told authorities and testified at Whitehead’s trial that
No. 07-10100

4

Whitehead was the lead person in the credit union hold-up, although he said

Whitehead played no part in the other robberies.

Crain gave detailed testimony at Whitehead’s trial about Whitehead’s role

in planning and executing the credit union robbery and the division of its

proceeds. Crain testified that he robbed the Arlington credit union along with

Whitehead, Chuck Oliver, and Jimmy Whitehead’s brother, George Whitehead.

Prior to the robbery, the four men conducted surveillance of the credit union.

The morning of the robbery, Crain, Oliver, Whitehead, and Whitehead’s brother

drove to the credit union in two vehicles. They brought gloves, ski masks, two

pistols, and three phones. Whitehead’s brother remained in one vehicle with a

phone and a police scanner. Crain, Oliver, and Whitehead drove the other

vehicle closer to the credit union. Originally, Crain and Oliver had planned to

enter the credit union, so Crain brought his own ski mask, which he had worn

many times, and gloves, which were new. The robbers changed their plans just

before the robbery, however, and decided instead that Whitehead would enter

with Oliver, and that Crain would be the getaway driver. Crain gave his ski

mask and gloves to Whitehead. Crain and Whitehead each took a phone. Crain

then sat in the car and watched Whitehead and Oliver confront the teller at the

credit union’s back door. About 20 minutes later, Oliver reappeared at the back

door and waved for Crain to pull up. Oliver got in the vehicle and reported that

Whitehead was still inside with the teller. Crain noticed it was raining at this

point. He and Oliver circled the credit union; they could not find Whitehead, so

they drove away and found his brother. Whitehead’s brother and Oliver then

returned to the credit union to pick up Whitehead. When the three men

reunited with Crain, Whitehead was wearing a white tank top, carrying a box

of money and blue bags, and missing his mask and gloves. The four went to the

home of Lisa Wright, where Whitehead stayed at times, to divide the cash.

Crain also testified that prior to the credit union robbery, Whitehead was “poor,”
No. 07-10100

5 The federal authorities did not prosecute Crain, but Crain was prosecuted and

convicted in state court.

6 See United States v. Silva, 748 F.2d 262, 266 (5th Cir. 1984) (“[A] conviction may be

based solely upon the uncorroborated testimony of an accomplice if the testimony is not

incredible or otherwise insubstantial on its face.”).

5

but afterwards, he drove vehicles with expensive accessories and paint jobs, wore

expensive jewelry, bought gold “grills” for his teeth, and spent considerable sums

at bars with topless female entertainers.

Whitehead contends that Crain’s testimony is unreliable because he is an

unindicted co-conspirator5 and because he previously lied to investigators and

did not implicate Whitehead in the credit union robbery until just before trial.

Whitehead’s contentions are familiar, and we have consistently rejected similar

arguments.6 The weight and credibility of Crain’s testimony were matters for

the jury.

Whitehead contends thatthe eye-witness testimony was unreliable. Kiser

was not “one hundred percent sure that [Whitehead] was the same person he

saw across the street the day of the robbery,” and Kiser was shown a photo

lineup days before testifying. Juarez’s testimony “varied greatly between the

two trials” and conflicted, and Harden “did not positively identify” Whitehead as

the person who ran past Harden’s residence. Whitehead also contends the DNA

evidence is inconclusive since DNA in addition to Whitehead’s was found on the

gloves and Crain’s DNA, but not Whitehead’s, was found on the ski mask.

Again, these are matters for the factfinder to weigh. We note with regard to the

DNA evidence that in a post-arrest interview, Whitehead denied that he ever

wore or touched the gloves at issue. The jury could have viewed this denial as

incriminating.

Viewing all of the evidence in the light most favorable to the government,

we must conclude that a rational juror could have found the crimes’ essential

elements beyond a reasonable doubt.
No. 07-10100

7 456 U.S. 667 (1982).

8 United States v. Botello, 991 F.2d 189, 192 (5th Cir. 1993).

9 United States v. Gonzalez, 76 F.3d 1339, 1342 (5th Cir. 1996).

10 United States v. Weeks, 870 F.2d 267, 269 (5th Cir. 1989) (“Ordinarily, however,

where the first prosecution has terminated on the defendant’s own motion for a mistrial, the

government is not barred from putting the defendant to trial again.” (citing United States v.

Tateo, 377 U.S. 463, 467 (1964)).

11 Id.

12 Oregon v. Kennedy, 456 U.S. 667, 676 (1982).

13 Id. at 675.

6

II

Whitehead contends that he was placed in double jeopardy when he was

subjected to a second trial, citing Oregon v. Kennedy.

7 We review de novo the

district court’s denial of a motion to dismiss based on double jeopardy,8 but we

accept the district court’s underlying factual findings unless they are clearly

erroneous.9

The Double Jeopardy Clause does not normally prohibit retrial, if the

second trial results from a mistrialthatthe defendant requested.10 The “narrow

exception” to this rule is that the “prosecution may not engage in misconduct

intended to provoke mistrial requests.”11“Only where the governmental conduct

in question is intended to ‘goad’ the defendant into moving for a mistrial may a

defendant raise the bar of double jeopardy to a second trial after having

succeeded in aborting the first on his own motion.”12 Our inquiry focuses not on

whether the prosecution “harassed” or “overreached,” but on the factual issue of

whether the prosecutor intended to produce a mistrial.13

The district court explicitly found that the prosecutor did not intend to

provoke the defense to move for a mistrial:
No. 07-10100

7

I find that misconduct on the part of the prosecutor caused the

Court to grant the mistrial, but that doesn’t justify granting of the

double jeopardy defense. The Supreme Court is real clear that I

cannot find that there’s . . . double jeopardy unless I find that the

prosecutor intended by his conduct to cause a mistrial. I cannot

make such a finding. I think it was a matter of [the prosecutor]

seeing what he could get away with, thinking it would help him in

the trial. But I don’t think he wanted a mistrial.

This finding was not clearly erroneous. A mistrial was granted because

during the first trial, after had Crain testified that Whitehead purchased

vehicles, clothing and consumer electronics following the credit union robbery,

the prosecutor asked “Do you know what else he was spending his money on?”,

and Cain responded “Drugs.” Whitehead’s counsel moved for a mistrial.

The district court had granted a motion in limine prior to the first trial to

exclude evidence that Whitehead used credit union robbery proceeds to buy

drugs. After Crain answered “Drugs” during the first trial, the district court

held a hearing, and Crain testified that on the morning of the first trial, the

prosecutor told Crain and the other witnesses not to mention drugs. Crain

recounted thatthe prosecutor “said there was a motion in limine; cannot use the

word drugs in any way, shape, form, or matter. No matter what I ask you, don’t

use the word ‘drugs.’” Crain explained that he nevertheless answered “drugs”

because he was “nervous and a little bit confused about the question and the

situation.”

The government actively opposed the defense’s request for mistrial. The

prosecutor immediately explained to the judge that he had explicitly instructed

Crain notto testify about drugs, and the prosecutor stated he was trying to elicit

Crain’s description Whitehead’s expenditures at strip clubs and on a “diamond

grill” for his teeth. The government offered a possible solution to lessen the

impact of the testimony and to continue the trial. This evidence supports the

district court’s finding.
No. 07-10100

14 United States v. Hefferon, 314 F.3d 211, 217 (5th Cir. 2002).

8

The defense argues the prosecution’s case improved significantly between

the first and second trial, and thatthis improvementis evidence of prosecutorial

intent to provoke the defense to move for a mistrial. Relatedly, it claims the

prosecution’s initial case was so weak during the first trial that we can infer the

government deliberately brought about the mistrial.

Whitehead argues that eye-witness Harden was impeached when it was

revealed on cross-examination that he was a convicted sex offender. The

prosecution brought out this damaging fact in its direct examination of Harden

at the second trial. Whitehead also notes that at the first trial, Juarez testified

that he first met with a particular investigator a few weeks after the robbery,

when in fact, the meeting occurred six months after the robbery. Whitehead

asserts this conflict in the Juarez’s testimony would have been apparent and

significant had the first trial continued. Additionally, Whitehead notes, at the

first trial, Kiser was asked if the person he observed the morning of the robbery

was presentin the courtroom during the firsttrial, and Kiser declined to identify

the defendant. The government did not pose the same question in the second

trial. Even assuming an inference of intent to goad the defense into moving for

a mistrial could be gleaned from these various circumstances,they do not render

the district court’s finding of no intent clearly erroneous. 

III

Whitehead moved unsuccessfully in the district court to suppress the incourt and out-of-courtidentifications of Whitehead by two witnesses, Juarez and

Kiser, on two primary grounds. He maintains these challenges to the admission

of this evidence on appeal. We accept a trial court’s factual findings that

underlie a ruling on a motion to suppress unless they are clearly erroneous.14
No. 07-10100

15 Id.

16 United States v. Atkins, 698 F.2d 711, 713 (5th Cir. 1983).

17 Id.

9

The question of whether an identification is constitutionally admissible is a

mixed question of fact and law.15

Whitehead contends the government violated his due process rights by

using an impermissibly suggestive photograph lineup to elicit positive

identifications from two witnesses. Courts determine whether a photographic

lineup violates a defendant’s due process rights by using a two-part test. First,

they ask if“the procedure was impermissibly suggestive.”16 If the lineup was too

suggestive, the issue is “whether this created a very substantial risk of

misidentification.”17

The photographic lineup was not impermissibly suggestive. The witnesses

were shown a sheet containing six pictures of young adult black males. They

were told they did not have to choose any of the individuals. The witnesses were

further instructed not to focus on aspects of a person’s appearance that are

susceptible to change, such as hairstyle and facial hair, but rather to focus on

unchangeable features such as “their ears, their eyes, [and] their nose.” 

Whitehead claims the lineup, when combined with the instructions,

impermissibly suggested that witnesses should select his photograph, because

he is the only person in the lineup with a “facial deformity.” He asserts that he

has a “lazy eye” that is “so manifestly apparent that without other alternatives

to select from, the photo lineup was tantamount to a show up.” We disagree

based on a review of the photographic lineup. It is not suggestive. Nor were the

investigating agents’ comments or instructions.

Whitehead’s second principal argument is that the government violated

his Sixth Amendment rights by failing to notify his attorney prior to conducting
No. 07-10100

18 388 U.S. 218 (1967).

19 413 U.S. 300 (1973).

20 Id. at 321.

10

the photographic lineup. He argues that United States v. Wade18requires the

government to notify counsel before showing witnesses a photographic lineup

containing the defendant. The Supreme Court foreclosed this argument in

United States v. Ash,

19 when it stated, “We hold . . . that the Sixth Amendment

does not grant the right to counsel at photographic displays conducted by the

Government for the purpose of allowing a witness to attempt an identification

of the offender.”20 We therefore reject this argument.

IV

The district court sentenced Whitehead to 240 months’ imprisonment for

the bank robbery conviction and 120 months’ imprisonment based on the

conviction for brandishing a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(ii),

with the terms of imprisonment to be served consecutively. The court further

ordered Whitehead to pay restitution of $453,600 and a special assessment of

$200. Finally, the district court imposed a supervised release term of three

years with respect to the bank robbery count, and a term of five years for the

weapons violation, to be served concurrently. 

With regard to the 120 months’ sentence, Whitehead contends that the

district court incorrectly interpreted 18 U.S.C. § 924(c)(1)(A)(ii) as setting forth

a minimum seven-year sentence, contending that the statute sets forth a

maximum seven-year sentence. Whitehead argues in the alternative that the

provision is unconstitutional. We review the district court’s interpretation of a
No. 07-10100

21 United States v. Hebert, 131 F.3d 514, 525 (5th Cir. 1997).

22 United States v. Luna, 165 F.3d 316, 319 (5th Cir. 1999).

23 18 U.S.C. § 924(c)(1)(A)(ii).

24 United States v. Sias, 227 F.3d 244, 246 (5th Cir. 2000).

25 United States v. Davis, 801 F.2d 754, 756-57 (5th Cir. 1986), abrogated by statute, 18

U.S.C. § 924, as stated in United States v. Affleck, 861 F.2d 97, 98 (5th Cir. 1988).

11

federal statute de novo.

21 We also review the constitutionality of a federal

statute de novo.

22

Whitehead’s contention that 18 U.S.C. § 924(c)(1)(A)(ii) imposes a

maximum punishment of seven years’ imprisonment for brandishing a firearm

during the commission of a crime of violence is contrary to the statute’s

unambiguous text and circuit precedent. Section 924(c)(1)(A)(ii) provides that

the offender “shall, in addition to the punishment provided for such crime of

violence . . . ifthe firearm is brandished, be sentenced to a term of imprisonment

of not less than 7 years.”23 This language plainly sets forth a minimum, rather

than a maximum. We have expressly rejected Whitehead’s interpretation in

previous decisions, noting that by using the “no less than” language, “Congress

has implicitly authorized district courts to impose sentences . . . in excess of

seven years and up to a maximum of life imprisonment.”24

We also reject Whitehead’s argument that if § 924(c)(1)(A)(ii) can be read

to allow sentences greater than seven years, it fails to give defendants sufficient

notice and is void for vagueness. As explained above, the language is not vague.

In addition, we have previously held that a provision using “not less than” to

establish a minimum sentence is “not unconstitutionally vague for failure to fix

a maximum sentence.”25
No. 07-10100

26 United States v. Lambright, 320 F.3d 517, 519 (5th Cir. 2003).

12

V

Prior to sentencing, Whitehead filed a motion for downward departure

based on a purported disparity between the 30-year sentence he received and the

15-year sentence his accomplice Crain received as a result of his state-court

prosecution and conviction for the credit union robbery. That motion was

denied, and Whitehead maintains on appeal that the district court erred by

failing to downwardly depart. Whitehead argues the difference between his and

Crain’s sentences constitutes a “sentencing disparity” for which the sentencing

court should award a downward departure. 

We de not reach the merits of this argument because we lack jurisdiction

to do so. We possess jurisdiction “to review [a] district court’s decision not to

depart downward from the guideline range only if the court based its decision

upon an erroneous belief that it lacked the authority to depart.”26 The record

must indicate that the judge held such a belief. The record before us reveals no

erroneous understanding. If anything, the record indicates the judge thought

he could grant the departure, as he said he would consider it at sentencing. For

these reasons, we conclude we lack jurisdiction to reach this argument.

Whitehead does not challenge the reasonableness of his sentence, nor does

he contend that the district court improperly applied or weighed any of the

factors set forth in 18 U.S.C. § 3553(a). 

* * *

For the foregoing reasons, we AFFIRM Whitehead’s conviction and

sentence.