IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40707

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

MARK ANTHONY OWENS; KIMBERLY MICHELLE KIRKWOOD,

Defendants - Appellants

Appeals from the United States District Court for the 

Eastern District of Texas

Before JONES, Chief Judge, and OWEN and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge.

Mark Anthony Owens and Kimberly Michelle Kirkwood were convicted of

bank robbery by force or violence and aiding and abetting the commission of

bank robbery by force or violence, in violation of 18 U.S.C. §§ 2113(a), 2113(d),

and 2. Both Owens and Kirkwood appeal the denial of their motions to sever

and argue that there is insufficient evidence to support the guilty verdict. 

Additionally, Kirkwood appeals the denial of her motion for a mistrial. We affirm

their convictions. Because our holding centers on the sufficiency of the evidence,

a detailed examination of the evidence follows.

United States Court of Appeals

Fifth Circuit

F I L E D

May 30, 2012

Lyle W. Cayce

Clerk

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I. Facts and Proceedings

Kirkwood worked as a bank teller at Texas State Bank’s Phelan Boulevard

branch in Beaumont, Texas, and lived with her boyfriend of three years, Owens. 

On Friday, September 7, 2007, Kirkwood requested additional money for her

cash drawer. Normally, bank tellers had approximately $25,000 in each of their

cash drawers. Using bank procedures, Kirkwood received an additional $58,000,

increasing the total in her cash drawer to approximately $89,000.

On Saturday, September 8, 2007 at approximately 8:20 a.m., Kirkwood

picked up her co-worker, Jessie Jeanis, for work. Kirkwood and Jeanis were the

only bank employees scheduled to work that day. Soon after they arrived at the

bank and Kirkwood entered the building, a black Chevy S-10 pick-up truck

parked near Kirkwood’s car where Jeanis was sitting. A man dressed in a black

suit, black floppy hat, black gloves, black sunglasses, and black shoes exited the

truck and covered his face with black cloth. Kirkwood opened the door to the

bank and stood with the door open; Jeanis exited Kirkwood’s car and entered the

bank. The man entered behind Jeanis, grabbed Jeanis’s hair, and held an object

to Jeanis’s back that Jeanis could not identify but described as hard, pointed,

and metallic. The man instructed Kirkwood to fill his duffle bag with money. 

Kirkwood walked to the vault and emptied $84,755 from her cash drawer into

the bag, including tagged bills. The man ordered the two women to lie on the

floor and count to one hundred. Jeanis got up when the door closed behind the

man despite Kirkwood telling her to stay on the ground as the robber had

instructed. She saw the truck driving away and wrote down its license plate

number on her checkbook register. Jeanis gave Kirkwood the checkbook register

and told her to call 911 while Jeanis called their manager.

When the police arrived, they interviewed Kirkwood and Jeanis. The

women could not identify the robber but gave the police the license plate number

of the black Chevy S-10 pick-up truck. Jeanis told the officers that one of the

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letters written on the checkbook register had been changed from a “Y” to a “9.” 

The police tracked the license plate number containing the “Y” to Anthony

English. Upon arriving at English’s home, the police discovered a motorcycle

registered to Kirkwood in English’s front yard that was still warm from being

ridden. Earlier, Owen was seen driving that motorcycle to English’s home. 

When the police found English, he reported his truck stolen. No evidence of the

robbery was discovered during searches of English’s home and the home where

English had slept on the night of September 7.

Owens and English were close friends. English later told the agents that

although he did not know who borrowed his truck on September 8, Owens

commonly borrowed English’s truck and left the motorcycle at English’s house. 

However, Owens only would borrow the truck with English’s permission, and no

one asked permission to borrow English’s truck on September 8. On September

7, English had left his keys on top of his entertainment center when he was

napping, numerous people from the neighborhood were at his home, and his

front door was unlocked.

During this investigation, Owen and Kirkwood consented to be

interviewed by the FBI. Kirkwood told agents that she thought Owens was at

their home and at the L.L. Melton YMCA during the time of the robbery. Owens

reported that he was working out at the YMCA beginning at approximately 8:20

a.m. on September 8 and that Kirkwood called to tell him what had happened

to her at the bank. However, a YMCA employee (Courtney Moore) and a YMCA

guest (Daisy Johnson) told the FBI that Owens arrived at the YMCA around

9:15 a.m. Moore testified that Owens tried to bribe her to sign him in at an

earlier time. However, Moore originally confirmed Owens’s version of events,

and other YMCA employees confirmed Owens’s version of events. 

Clothing from Kirkwood and Owens’s home was sent to the FBI lab but

could not be linked to the robbery. No forensic evidence could be recovered from

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the bank that connected Kirkwood or Owens to the robbery. The money from the

robbery, including tagged bills, was never found.

On September 19, 2007, a federal grand jury returned an indictment

against Kirkwood alleging that she committed bank robbery by force or violence

and aided and abetted the commission of bank robbery by force or violence, in

violation of 18 U.S.C. §§ 2113(a), 2113(d), and 2, and possessed a firearm in

relation to a crime of violence, in violation of 18 U.S.C. §§ 2113, 924(c)(1), and

924(c)(2). A superseding indictment was returned on August 6, 2008 alleging the

same violations and joining Mark Anthony Owens as a co-defendant in the case. 

Count two, possession of a firearm in relation to a crime of violence, was

dismissed by the government as to both defendants before trial. Both

defendants pleaded not guilty and filed motions to sever, which were denied by

the district court in an 8-page order on January 7, 2010.

On January 13, 2010, a jury found Kirkwood and Owens each guilty of

count one of the indictment, committing bank robbery by force or violence and

aiding and abetting the commission of bank robbery by force or violence, in

violation of 18 U.S.C. §§ 2113(a), 2113(d), and 2. Owens was sentenced to 121

months imprisonment, and $84,755 in restitution was ordered. Kirkwood was

sentenced to 110 months imprisonment, and $84,755 in restitution was ordered.

The current appeal was timely filed.

II. Motions to Sever

Owens and Kirkwood argue that the district court abused its discretion in

denying each of their motions to sever. According to Fed. R. Crim. P. 14(a), “[i]f

the joinder of offenses or defendants in an indictment . . . appears to prejudice

a defendant . . . the court may order separate trials of counts, sever the

defendants’ trials, or provide any other relief that justice requires.” The

Supreme Court has held that, “a district court should grant a severance under

Rule 14 only if there is a serious risk that a joint trial would compromise a

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specific trial right of one of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S.

534, 539 (1993). “There is a preference in the federal system for joint trials of

defendants who are indicted together.” Id. at 538.

This court reviews a denial of a motion for severance for abuse of

discretion. United States v. Lewis, 476 F.3d 369, 383 (5th Cir. 2007) (citing

United States v. Sudeen, 434 F.3d 384, 387 (5th Cir. 2005)). “Historically, this

court has been reluctant to vacate a conviction because the district court refused

to sever a trial. The defendant must ‘isolate events occurring in the course of the

trial and then . . . demonstrate that such events caused substantial prejudice.’”

Lewis, 476 F.3d at 384 (citations omitted). To reverse the denial of a motion to

sever, an appellant must show “specific compelling prejudice.” Id. at 383 (citing

Sudeen, 434 F.3d at 387). “To prevail, the defendant must show that: (1) the

joint trial prejudiced him to such an extent that the district court could not

provide adequate protection; and (2) the prejudice outweighed the government’s

interest in economy of judicial administration.” United States v. Peterson, 244

F.3d 385, 393 (5th Cir. 2001) (citations and internal quotation marks omitted). 

The defendant also must show that the district court’s instructions to the jury

did not adequately protect him or her from any prejudice resulting from the joint

trial. United States v. Posada-Rios, 158 F.3d 832, 863 (5th Cir. 1998) (citing

United States v. Mitchell, 31 F.3d 271, 276 (5th Cir. 1994)).

Both Kirkwood and Owens assert that their close relationship with the

other would cause the jury to impute the other’s guilt upon them and that they

would have been acquitted if tried separately. Specifically, they allege that the

government’s theory of the case (that Kirkwood used her employment at the

bank to help Owens rob the bank) prevented the jury from evaluating the

evidence against each of them separately. Owens explains that, “[i]t is more

likely than not that the jury convicted each defendant based, not on any evidence

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against him or her individually, but on the entire evidence presented in this case

as a whole against both defendants and on the fact that each was a co-defendant

to the other.”

However, “[a] spillover effect, by itself, is an insufficient predicate for a

motion to sever.” United States v. Bieganowski, 313 F.3d 264, 287 (5th Cir. 2002)

(citing United States v. Williams, 809 F.2d 1072, 1085 (5th Cir. 1987)

(“[A]dditional evidence adduced at joint trials does not constitute compelling

prejudice by itself.”)). In the present case, the district court instructed the jury

that, “[t]he case of each defendant and the evidence pertaining to that defendant

should be considered separately and individually. The fact that you may find

one of the defendants guilty or not guilty should not control your verdict as to

any other defendant.” Because it is presumed that juries follow the instructions

the court gives them, we assume that the evidence against each defendant was

considered separately and individually. United States v. Tarango, 396 F.3d 666,

677 (5th Cir. 2005) (citation omitted); Richardson v. Marsh, 481 U.S. 200, 211

(1987). Neither Kirkwood nor Owens has offered any specific argument, other

than conclusory statements, that the jury instruction given by the district court

was insufficient.

This court has held numerous times that the relationship between codefendants does not require reversing the denial of a motion to sever. See, e.g.,

United States v. Nguyen, 493 F.3d 613, 625 (5th Cir. 2007) (concluding that the

district court did not abuse its discretion when it denied a motion to sever filed

by a defendant who was being tried with his twin brother); United States v.

Solis, 299 F.3d 420, 441 (5th Cir. 2002) (rejecting the defendant’s argument that

“he was convicted on guilt by association” because he was tried with his brother);

United States v. Bermea, 30 F.3d 1539, 1572–73 (5th Cir. 1994) (determining

that the district court did not abuse its discretion by denying the appellant’s

motion to sever even though the appellant was tried with three family members,

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one of whom pleaded guilty part way through the trial); United States v. Partin,

552 F.2d 621, 640–41 (5th Cir. 1977) (affirming the denial of a motion to sever

where the defendant was tried with his father-in-law and brother); see also

United States v. Lira, 262 F. App’x 653, 655 (5th Cir. 2008) (unpublished)

(holding that even if some of the evidence against the appellant’s husband was

not relevant to the case against her, the district court did not abuse its discretion

by denying the appellant’s motion to sever her case from her husband’s case

because “the district court instructed the jury to give separate consideration of

the evidence as to each defendant”). The fact that Kirkwood and Owens were

living together and had been dating for three years at the time of the robbery is

insufficient to warrant reversing the district court’s ruling.

Additionally, Kirkwood argues that she was further prejudiced by her joint

trial with Owens because Owens would have testified at her trial if their cases

had been severed. Kirkwood explains that Owens had prior criminal convictions

and a pending deferred adjudication that prevented him from testifying on her

behalf at their joint trial. In order for Kirkwood to obtain a severance based on

her desire to have Owens testify in her defense, she needed to establish: (1) a

bona fide need for the testimony; (2) the substance of Owens’s testimony; (3) the

exculpatory effect of Owens’s testimony; and (4) an indication that Owens would

testify if the trial was severed. See Nguyen, 493 F.3d at 625 (citing United States

v. Kane, 887 F.2d 568, 573 (5th Cir. 1989); United States v. Nutall, 180 F.3d 182,

187 (5th Cir. 1999)). Because Kirkwood has not demonstrated that Owens would

have testified if the trial had been severed, we need not reach the other three

prongs of this test. Without an affidavit from Owens or similar proof, Kirkwood

cannot establish that Owens would have testified if his trial had been severed

from Kirkwood’s trial. See id. (citing United States v. Sparks, 2 F.3d 574, 583 &

n.10 (5th Cir. 1993); United States v. Neal, 27 F.3d 1035, 1047 (5th Cir. 1994)). 

Kirkwood has not supplied such an affidavit. Kirkwood only provided an

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affidavit from her attorney as evidence of Owens’s willingness to testify. A

statement from a defendant’s attorney is insufficient to establish that the

defendant’s co-defendant would be willing to testify or the substance of such

testimony. Id. (citing United States v. Williams, 809 F.2d 1072, 1084 (5th Cir. 

1987)). Kirkwood’s allegations that Owens “likely” or “possibly” would have been

available to testify if he were tried before Kirkwood are insufficient to

demonstrate that her motion to sever should have been granted. See id. (citing 

Sparks, 2 F.3d at 583 & n.10; Neal, 27 F.3d at 1047). 

Finally, Kirkwood argues that shewas prejudiced by the joint trial because

evidence existed against Owens that was unrelated to Kirkwood and the specific

crime charged. The jury heard about Owens’s “extensive criminal background,”

that Owens was required to perform community service, and Owens’s “weak and

easily disproved alibi testimony.” However, we have held that, “severance is

required on the basis of a disparity in the evidence only in the most extreme

cases.” United States v. Rocha, 916 F.2d 219, 229 (5th Cir. 1990). “[C]ompelling

prejudice is not shown if it appears that, through use of cautionary instructions,

the jury could reasonably separate the evidence and render impartial verdicts

as to each defendant.” United States v. Erwin, 793 F.2d 656, 665 (5th Cir. 1986)

(citation omitted). In the present case, the jury was properly instructed that it 1

should evaluate the evidence against Kirkwood and Owens separately. As noted

Although we held in Erwin that the district court abused its discretion by denying a

1

motion to sever as to one defendant, Grace Davis, and that the case was “extremely close” as

to Davis’s co-defendants, Erwin involved the admission of evidence of more egregious crimes

committed by members of the conspiracy (“two kidnappings, two beatings and one killing”)

than those charged in the case (drug-related activities, counterfeiting, and perjury). 793 F.2d

at 666. Error was found in Davis’s case because “[t]he charges against her were already only

peripherally related to those alleged against the other appellants” and “it became increasingly

apparent that very little of the mountainous evidence was usable against her, and almost none

of it applied directly.” Id. In the instant case, Kirkwood was tried for the same charge

stemming from the same incident as Owens, Kirkwood had no conspiratorial connection to

Owens’s past crimes, and Owens’s past crimes were less severe than the current charge,

armed robbery.

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earlier, juries are presumed to follow the instructions given to them by the

district court. Tarango, 396 F.3d at 677 (2005) (citation omitted); Marsh, 481

U.S. at 211. In light of the cautionary jury instruction given by the district

judge, Kirkwood has offered insufficient evidence of “specific and compelling

prejudice” for us to conclude that the district court abused its discretion by

denying her motion to sever. See Erwin, 793 F.2d at 665–66 (citations omitted). 

Because neither Owens nor Kirkwood has demonstrated specific

compelling prejudice from the denial of their motions to sever, we conclude that

the district court did not abuse its discretion denying Kirkwood’s and Owens’s

motions to sever.

III. Sufficiency of the Evidence

Kirkwood and Owens assert thattherewas insufficient evidence to sustain

their convictions because the government failed to prove that each of them

participated in the September 8 robbery of Texas State Bank. They do not

contest that the robbery occurred, but instead, that they were involved. Each

argues that the government only established that they could have robbed the

bank and that, at best, “the evidence supports the government’s theory of guilt

equally to the theory of innocence.” 

To determine whether there was sufficient evidence to sustain a

conviction, we ask whether a rational trier of fact could find proof of the essential

elements of the crime beyond a reasonable doubt when viewing the evidence and

drawing all inferences in favor of the verdict. Jackson v. Virginia, 443 U.S. 307,

319 (1979) (citation omitted); United States v. Rasco, 123 F.3d 222, 228 (5th Cir.

1997) (citations omitted). In doing so, we do not reweigh the evidence or assess

the credibility of witnesses. Rasco, 123 F.3d at 228. This standard does not

change regardless of whether a conviction is based on direct or circumstantial

evidence. United States v. Delagarza-Villarreal, 141 F.3d 133, 139 (5th Cir.

1997).

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A. Kirkwood

Kirkwood argues that there is insufficient evidence to support her

conviction because “alternative explanations are equally plausible for each act

relied upon by the Government to prove Kirkwood’s guilt.” However, when we

conduct a review of the sufficiency of the evidence, we must draw all inferences

and view all evidence in favor of the government. See Rasco, 123 F.3d at 228.

There is sufficient evidence against Kirkwood for a reasonable jury to find

her guilty beyond a reasonable doubt. The day before the robbery Kirkwood

requested additional money for her cash drawer. Although each of the two

tellers was only supposed to know half the combination to the bank’s dualcombination vault, Kirkwood was able to open the vault door for the robber

because she, unlike Jeanis, knew both combinations. A reasonable jury could

have believed that Kirkwood conspired with the robber, obtained both

combinations, and made sure that there was almost $64,000 of additional money

in her drawer at the time of robbery. 

In addition, Kirkwood arrived early at the bank on the day of the robbery. 

Such an early arrival would ensure that Jeanis and she would be the only two

people in the bank at the time of the robbery. Once at the bank, Kirkwood failed

to follow the bank’s security procedures when she held the door open for Jeanis

rather than signaling to Jeanis that it was safe for Jeanis to enter the bank. 

Procedure dictated that one employee enter the bank and signal to the other

employee that it was safe to enter.

The government also presented evidence that a reasonable jury could

interpret as evidence of Kirkwood taking steps to conceal the robber’s identity

after the robbery. According to Jeanis, Kirkwood told Jeanis to follow the 2

Because the government almost entirely bases the support for Kirkwood’s conviction

2

on the testimony of Jeanis and “we must accept credibility choices that support the jury’s

verdict,” United States v. Guerrero, 169 F.3d 933, 939 (5th Cir. 1999), we assume that the jury

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robber’s instructions to stay on the ground after the robber exited the bank. As

the government argued, the jury could reasonably have interpreted Kirkwood’s

statement as an attempt to prevent Jeanis from seeing the truck’s license plate. 

Next, a reasonable jury could have inferred that Kirkwood did not relay to the

911 dispatcher the license plate number Jeanis gave Kirkwood. Though

Kirkwood explains that (1) Jeanis and the dispatcher were talking to Kirkwood

at the same time during the call, (2) Kirkwood was upset, and (3) Kirkwood gave

the license plate number to the police when they arrived at the bank, the jury

could have inferred, as the government argued, that Kirkwood was stalling to

allow the robber to flee.

Finally, Kirkwood’s actions and statements relating to Owens and the

robbery could be inferred to be incriminating. Kirkwood testified that she heard

the robber speak, did not recognize his voice, and was sure that it was not

Owens’s voice, even if disguised. In fact, Kirkwood testified that Owens was not

the robber. In light of the evidence described below that Owens was the robber,

however, as well as what Kirkwood acknowledges to be his “weak and easily

disproved alibi testimony,” this testimony could lead a reasonable jury to

conclude that Kirkwood was untruthful. A rational jury could conclude that

Kirkwood should have recognized Owens’s voice considering that (1) she had

been dating Owens for three years, (2) her name was on the title of Owens’s

motorcycle, and (3) she lived with Owens at the time of the robbery. Id.

Furthermore, Kirkwood made and received a number of calls to and from her

boyfriend, Owens, and his best friend, English, in the week before the robbery,

including receiving but not answering a call from English the morning of the

robbery. Although mere association or “a climate of activity that reeks of

something foul” is insufficient to establish guilt, United States v. Jackson, 700

believed Jeanis was credible. See id.

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F.2d 181, 185 (5th Cir. 1983) (citations and internal quotation marks omitted),

Kirkwood’s actions and statements relating to Owens are relevant to the

government’s theory of the case that the robbery was an “inside job.”

Notably, the jury heard Kirkwood’s extensive testimony that she did not

rob, and chose not to accept her version of events. Notably also, Kirkwood

sought relief, alleging insufficiency pursuant to Fed. R. Crim. P. 29, directly from

the district court. Having presided over this trial, in its firsthand demeanor and

credibility position, the district court elaborated reasons and did not grant Rule

29 relief. Viewed in the light most favorable to the verdict, there was sufficient

circumstantial evidence for the jury to reasonably find Kirkwood guilty beyond

a reasonable doubt.

B. Owens

Owens argues that there was insufficient evidence to convict him because,

“[n]ot a single person identified Owens, found money from the offense connected

with Owens, found clothes or physical evidence associated with the offense

connected to Owens, or testified to inculpatory statements by Owens.”

However, there is sufficient circumstantial evidence to sustain the jury’s

verdict of guilt. See Delagarza-Villarreal, 141 F.3d at 139. Kirkwood

acknowledged that Owens was familiar with Texas State Bank’s procedure for

opening the Phelan branch and knew when Kirkwood left to pick up Jeanis early

in the morning of September 8. Significantly, Courtney Moore and Daisy

Johnson testified that Owens did not enter the YMCA, where he claimed he was

during the robbery, until around 9:15 a.m. Moore even stated that Owens

offered her money to sign him into the YMCA so it would appear as if he arrived

at the YMCA at 8:00 a.m. Randolph Washington testified that someone took 3

Although there was other testimony, for example from Gabriel Wells, that Owens was

3

at the YMCA before 8:00 a.m., we credit the evidence in favor of the verdict when such a

contradiction exists. Jackson, 443 U.S. at 318 (citations omitted); Rasco, 123 F.3d at 228

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English’s truck between 5:15 a.m. and 6:00 a.m. on September 8 and that he saw

Owens arrive at English’s house on his motorcycle with a black backpack just

before the police arrived at English’s house (after the robbery and about twenty

minutes before Owens entered the YMCA on foot). Jeanis and Kirkwood told

investigators that the bank robber carried a black duffel bag. Anthony English,

who owned the truck the government identified as the getaway truck, testified

that Owens commonly borrowed English’s truck and that he had left his keys on

his entertainment center and left his door unlocked on September 7 while he

napped. English’s truck was discovered abandoned and covered with a tarp near

Owens’s former apartment. Owens’s height and weight match the description

of the robber that both Kirkwood and Jeanis gave to the police. 

4

Owens argues that the facts of the instant case are similar to the facts of

United States v. Gandolfo, 577 F.2d 955 (5th Cir. 1978), where we held that the

evidence was insufficient to uphold the conviction of one defendant, Ritter. In

Gandolfo, we held that there was insufficient evidence to convict Ritter because

multiple witnesses gave descriptions of the robbers that were extremely general

and two witnesses could not identify Ritter as Gandolfo’s confederate. Id. at

958–59. The strongest evidence against Ritter was that (1) he knew Gandolfo,

(2) he fit the general physical characteristics of one of the masked robbers and

an individual who rented a motel room and had a key made near the bank before

the robbery, and (3) he made a large payment to bail Gandolfo’s girlfriend out of

jail after the robbery although he was receiving unemployment compensation

(citations omitted). Although the jury could have accepted Owens’s verison of events that

Owens had Moore alter the logs so that it would appear that he arrived in time to meet the

requirements of his court-mandated community service, we view all inferences in favor of the

verdict and thus assume that the jury believed the government’s version of events,that Owens

bribed Moore in order to establish a false alibi for the robbery.

Anthony English did not match the description of the robber because he was

4

approximately 300 pounds according to Kirkwood.

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before the robbery. Id. We noted that the case was “wholly lacking” in “the

evidence, which is so reassuring to finders of fact and appellate courts, such as

fingerprints, a positive identification, possession of the bank’s bait money or a

confession or admission.” Id. at 959. Ultimately, we concluded that: 

Viewing the government’s case in its most favorable light, no

witness or combination of witnesses either places Ritter in the

savings and loan or otherwise establishes his guilt of the robbery for

which he was convicted. Although his conduct and his association

with Gandolfo is highly suspect vis-a-vis the bank robbery, the links

are too tenuous and the gaps are too large to conclude that a

reasonable mind could find Ritter guilty beyond a reasonable doubt.

Id.

The present case is factually distinct from Gandolfo in several important

ways. Crucially, Owens, the jury could have concluded, gave a false alibi for his

whereabouts during the robbery, and even attempted to bribe another to

corroborate the false alibi. Owens was directly linked to the getaway truck,

which belonged to his best friend, English. Owens often had borrowed the truck,

the keys were accessible the day before the robbery, and Owens was seen before

and after the robbery at English’s home. Owens, therefore, had established links

to the robbery that Ritter lacked. Based on this circumstantial evidence, a

rational trier of fact could find beyond a reasonable doubt that Owens was the

individual who robbed the bank.

VI. Motion for a Mistrial

Finally, Kirkwood argues that the district court improperly denied her

motion for a mistrial. We review the denial of a mistrial for an abuse of

discretion. United States v. Elashyi, 554 F.3d 480, 507 (5th Cir. 2008) (citing

United States v. Le, 512 F.3d 128, 133 (5th Cir. 2007)).

Before trial, the government indicated that it did not object to Kirkwood’s

Motion in Limine Pursuant to Federal Rule of Evidence Rule 404(b). The district

court granted Kirkwood’s motion in limine, prohibiting the government from

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alluding to alleged misconduct by Kirkwood before the district court ruled on the

admissibility of that evidence. At trial during Kirkwood’s cross-examination,

Kirkwood was questioned concerning whether she knew there was a 9mm pistol

in her dresser drawer, and she testified that she did not. The prosecutor then

asked about what the dresser was used for and about the large box of

ammunition that was found next to the gun. When the prosecutor asked if there

was a digital scale next to the gun in the drawer, Kirkwood objected that the

prosecutor was trying to suggest that Kirkwood was involved in questionable or

illegal activities. The government responded that it was asking if Kirkwood

knew what else was in the drawer, which happened to be a digital scale.

The district judge sustained Kirkwood’s objection but denied Kirkwood’s

accompanying motion for a mistrial. The district court stated:

I sustain your objection, I think it is improper. I think it is -- if he

went any further would be highly prejudicial, but not enough for a

mistrial. Overruled. 

Counsel, I say this on the record: I agree with counsel for the

defense and I think it is the same thing as essentially holding a half

bottle of bourbon whiskey sitting on the table throughout a jury trial

in a DWI case without introducing it. So don’t bring anything like

that up again, please.

Although Kirkwood argues that the mention of the digital scale violated

her Motion in Limine Pursuant to Federal Rule of Evidence Rule 404(b), the

district court would only have abused its discretion in denying the motion to

dismiss if “there is a significant possibility that the prejudicial evidence had a

substantial impact upon the jury verdict, viewed in light of the entire record.”

Elashyi, 554 F.3d at 507 (quoting Le, 512 F.3d at 133) (internal quotation marks

omitted). Kirkwood has not met this standard.

The motion in limine barred the government from mentioning “‘any

evidence of extrinsic or extraneous offense, uncharged criminal conduct,

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No. 10-40707

unalleged overt acts, or specific acts of misconduct’” before serving notice to the

court. However, no evidence of a bad act was heard by the jury because

Kirkwood did not endorse the prosecutor’s suggestion that she had knowledge

of or possessed the scale. Kirkwood answered the government that she did not

know if there was a digital scale in her dresser drawer, that she did not see one,

and that one should not be there. As the district court instructed the jury,

“[r]emember that any statements, objections, or arguments made by the lawyers

are not evidence.” Since jurors are presumed to follow the instructions given to

them by the court, the government’s reference to the digital scale would have

been disregarded. See Marsh, 481 U.S. at 211. The district court acted within

its discretion when it chose to address any potential prejudice by sustaining

Kirkwood’s objection rather than granting a mistrial.

Even if, as Kirkwood argues, she was prejudiced by the reference to the

digital scale, the prejudice was not so severe as to warrant a mistrial. A

photograph of the digital scale had already been entered into evidence and

shown to the jury without an objection by Kirkwood. Immediately after

Kirkwood’s objection to the questioning at issue, the government again showed

the jury the picture of the junk drawer in which the digital scale was pictured

next to the gun and ammunition. Kirkwood did not object. Though the digital

scale was not specifically identified in the picture either time it was shown to the

jury, the prejudice from an isolated question about the digital scale, with a

sustained objection thereto, is not so much greater than any reaction stemming

from the jury actually seeing the scale to warrant a mistrial.

Furthermore,the district court properly determined that a single reference

to a digital scale, without more, was “not enough” to warrant a mistrial. In

United States v. Le, this court held that the mention of the defendant’s parole

status during opening statements, the testimony of a government witness, and

closing arguments did not warrant overturning the district court’s denial of a

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motion for a mistrial. 512 F.3d at 134. The court determined that, “[t]hese three

references were a very small part of the trial” and that the evidence first came

out during opening statements without an objection, meaning the jury already

had the information that was the basis for the motion. Id. As a result, we held

that, “[t]he references to Le’s parole status did not have a ‘substantial impact

upon the jury’s verdict.’” Id. (citing United States v. Paul, 142 F.3d 836, 844 (5th

Cir. 1998) (explaining that the defendant failed to show that the district court

abused its discretion by denying the motion for a mistrial when the references

at issue were “isolated remarks that were not dwelled upon by the parties”)).

In the instant case, the digital scale was not mentioned again during the

trial. It was mentioned only in passing during Kirkwood’s lengthy crossexamination by the government and Owens’s counsel. The reference was an

isolated remark and was not dwelled upon; hence, the district court did not

abuse its discretion when it denied Kirkwood’s motion for a mistrial.

V. Conclusion

The district court did not abuse its discretion when it denied Kirkwood’s

motion to sever, Owens’s motion to sever, and Kirkwood’s motion for a mistrial. 

There was sufficient evidence to support the jury’s decision to convict Kirkwood

and Owens. We AFFIRM both Owens’s and Kirkwood’s convictions.

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