* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 13 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. MAURICE WHITERS, aka Mo, Defendant-Appellant. No. 99-3206 (District of Kansas) (D.C. No. 98-CR-10113-2)

ORDER AND JUDGMENT *

Before BRORBY , KELLY, and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is court has determined unanimously that oral argument would not materially assist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Appellant, Maurice E. Whiters, and a co-defendant, Marcus Block, were charged in a four-count indictment with conspiracy to commit bank robbery in-2-

violation of 18 U.S.C. § 371; bank robbery in violation of 18 U.S.C. § 2113(a), (d); and two counts of using a firearm during the c ommission of a bank robbery in violation of 18 U.S.C. § 924(c). Block pleaded guilty to all four counts contained in the indictment. A jury convicted Whit ers on all four counts. Block testified against Whiters at Whiters’ trial. The d istrict court concluded that Whiters was an organizer or leader of the criminal activity and increased Whiters’ offense level by two levels pursuant to § 3B1.1(c) of the United States Sentencing Guidelines. Whiters was sentenced to a term of 117 months’ incarceration. Whiters’ counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), wherein counsel advises this courtthat Whiters’ appeal is wholly frivolous. Accordingly, counsel has also fi led a motion to withdraw. The Anders brief contains a challenge to the sufficiency of t he government’s evidence against Whiters and a challenge to the imposition o f the two-level sentencing enhancement. Whiters filed a pro se response to counsel’s Anders brief in which he again argues that the evidence was insufficient to support his convictions on all counts in the indictment and raises several add itional claims involving both the indictment and the jury instructions given by t he district court. This court conducts a de novo review of the sufficiency of evidence presented at trial. See Unites States v. Wilson , 107 F.3d 774, 778 (10th Cir.-3-

1997). Evidence is sufficient to support a convict ion if the direct and circumstantial evidence and the reasonable inferenc es drawn therefrom, viewed in the light most favorable to the government, woul d allow a reasonable jury to find the defendant guilty beyond a reasonable doubt. See id

. Having carefully reviewed the trial transcript in t his case, this court concludes there is no merit to Whiters’ argument re garding the sufficiency of the evidence supporting his convictions. At trial, the government presented evidence that Commerce Bank, a financial institution insuredby the FDIC and located at 1250 S. Woodlawn, Wichita, Kansas, was robbed on January 5, 1998. Two bank employees, present at the time of the robbery, test ified that an African-American male, fitting the physical description of Whiters, entered the bank wearing a ski mask and brandishing a firearm. The robber demande d money from two tellers who placed the money in a white plastic trash bag p rovided by the robber. One teller testified that, in addition to placing moneyin the robber’s bag, she also placed bait money and a dye pack which explodes whe n it is taken outside the bank. The robber then left the bank. The government also presented the testimony of a bank customer who was entering the bank at the time of the robbery. The customer testified that he observed one African-American male standing outside the bank and another African-American male emerge from the bank. He tes tified that the individual-4-

who came running out of the bank was carrying a han dgun. He also testified that he observed both individuals run from the bank in awesterly direction. A witness who lived in the vicinity of the bank, te stified that she observed a maroon-colored vehicle parked near her residence the morning of the robbery. She further testified that she saw the vehicle driv e off immediately after one individual jumped into the passenger side. She tes tified that after the vehicle drove off, she observed papers on the ground near w here the vehicle had been parked. An FBI agent in charge of the investigation into th e robbery of the bank testified that a woman was caught passing dye-stain ed bills a few days after the robbery. At the trial, this woman identified White rs as the person who had given her the stained bills. The agent then testified th at carpet fibers gathered during the search of a maroon-colored vehicle belonging to Whiters’ mother were tested and determined to contain the stain and chemicals f ound in dye packs used by the bank. The agent also testified that red-stained carpet samples were removed from the apartment in which Whiters was residing at the time of the robbery, tested, and also found to contain the chemicals used in the dye packs. Co-defendant Block testified that the robbery was p lanned by Whiters, that Whiters provided him with a gun which he carried du ring the robbery, and that Whiters also carried a gun during the robbery. Blo ck also testified that Whiters-5-

instructed him to remain outside while Whiters robb ed the bank. Block testified that the getaway car used in the robbery belonged t o Whiters’ mother and was driven by Whiters’ sister. Block then testified th at after the robbery, he and Whiters returned to Whiters’ residence where they d estroyed the bills that had been stained by the dye pack and then divided the r emaining money between them. This court concludes that the trial transcri pt contains ample evidence to support Whiters’ conviction on all four counts cont ained in the indictment. Whiters also argues that there was insufficient evi dence to support the twolevel sentence enhancement under U.S.S.G. § 3B1.1. This court reviews the district court’s determination that Whiters was an organizer or leader of a criminal activity for clear error. See United States v. Cruz Camacho , 137 F.3d 1220, 1223 (10th Cir. 1998). The district court imposed the two-level enhancement under U.S.S.G. § 3B1.1(c). That provis ion reads: “If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by two level s.” The district court based the enhancement on the following facts: the evidence es tablished that the idea for the robbery originated with Whiters; Whiters recruited Block to participate in the robbery and instructed him to wait outside the bankand act as a lookout; Whiters provided the firearms used in the robbery; Whiters played a major role in the robbery by entering the bank and taking the money; Whiters provided the car-6-

used in the robbery; Whiters’ residence was used as a hideout; and it is likely that Whiters received a greater share of the money taken during the robbery. There is substantial support for these findings in the trial transcript. This court concludes, therefore, that the district court’s factual findin gs are not clearly erroneous and also concludes that they are sufficient to support the imposition of the two-level enhancement. In his response to the Anders brief, Whiters first contests the sufficiency of the indictment. Although Whiters failed to challen ge the indictment at trial, a challenge to a defective indictment is never waived and the sufficiency of the indictment is reviewed de novo

. See United States v. Bolton , 68 F.3d 396, 400 (10th Cir. 1996). When a defendant fails to challe nge the sufficiency of the indictment at trial, however, this court will liber ally construe the indictment in favor of validity. See id

. Count 1 of the indictment begins, “From on or abou t a date unknown to the Grand Jury, until on or about January 5, 1998 . . . .” Whiters argues that the indictment is insufficient because it does not spec ifically set forth the date on which the conspiracy commenced. This argument is without merit. An indictment is sufficient “if it contains the elemen ts of the offense charged, putting the defendant on fair notice of the charge against which he must defend, and if it enables a defendant to assert an acquitta l or conviction in order to1 Counts 2 through 4 of the indictment were expresslyincorporated by

reference into Count 1. -7- prevent being placed in jeopardy twice for the same offense.” United States v. Staggs , 881 F.2d 1527, 1530 (10th Cir. 1989). The indict ment in this case, read as a whole, 1 clearly apprised Whiters of the charges against hi m and, thus, was sufficient. Count 2 of the indictment charged Whit ers with bank robbery; Counts 3 and 4 charged Whiters with the use of a firearm d uring the commission of the bank robbery. The indictment specified the date of the alleged acts, the district and state within which they occurred, the statutes violated, the elements of the offense, and the name of the co-conspirator. Altho ugh the indictment did not specify the precise date on which the conspiracy co mmenced, the indictment was “sufficiently complete and precise to enable the de fendant to avoid prejudicial surprise and to bar the risk of double jeopardy.” United States v. Barbieri , 614 F.2d 715, 719 (10th Cir. 1980). Even assuming, arguendo, that the indictment was fa cially insufficient because it failed to give the precise date on when the conspiracy commenced, there is no indication in the record that Whiters w as ever unfairly surprised at trial. Additionally, Whiters has made no showing that he was actually prejudiced by the absence of the precise date on which the conspiracy began. See United
States v. Moore , 556 F.2d 479, 483 (10th Cir. 1977). The indictme nt was read to-8-

the jury as part of jury instruction No. 22. White rs claims that, during his trial, the jury heard evidence of his participation in oth er criminal acts and that the absence of a beginning date to the conspiracy creat es the possibility that the jury considered this other evidence when it convicted hi m of the offenses charged in the indictment. Other than Whiters’ own speculatio n, the record contains no support for Whiters’ claim that the jury consideredevidence of Whiters’ participation in other criminal acts in reaching it s verdict. Any remote possibility that the jury may have impermissibly considered evi dence of other criminal acts is foreclosed by jury instruction No. 17 which read s, in pertinent part, The defendant is on trial only for the acts alleged in the indictment. He is not on trial for any other acts or conduct. In determining whether the defendant is guilty or not guilty, you are therefore to consider only whether he has or has not committed t he acts charged in this indictment. Even if you are of the opinion that he is guilty of some offense not charged, you must find him not gui lty if the evidence does not show beyond a reasonable doubt th at he committed the specific acts charged in this indictm ent. This court concludes that the indictment was suffic ient. Whiters also raises several challenges to the jury instructions. Because Whiters failed to challenge the jury instructions at trial, he has waived his right to make such a challenge absent a demonstration of plain error. See United
States v.2 These overt acts include the bank robbery and the u se of firearms during

the bank robbery. -9- Allen, 129 F.3d 1159, 1162 (10th Cir. 1997). “Plain erroris that which is obvious, or which seriously affects the fairness or integrity of the trial.” United States v. Enjady , 134 F.3d 1427, 1435 (10th Cir. 1998). Whiters argues that Count 1 of the indictment, readas part of jury instruction No. 22, is insufficient because it fail s to allege at least one overt act committed in furtherance of the conspiracy of which he was convicted, i.e., conspiracy to commit bank robbery. Whether viewed as a challenge to the sufficiency of the indictment or a challenge to the jury instructions, Whiters’ argument has no merit. Count 1 of the indictment, reads: In furtherance of the conspiracy and to achieve the objectives thereof, the defendants committed and caused to be committed, overt acts in the District of Kansas, among which are the acts described in counts 2 through 4 of this Indictment which are inc orporated by reference as if fully set forth herein

. (emphasis added). Thus, contrary to Whiters’ alleg ation, the indictment is sufficient because Count 1 of the indictment allege s the overt acts described in Counts 2 through 4 of the indictment. 2 Whiters also argues that it is unclear from the jury instruction whether the jury found him guilty of an overt act in furtheranc e of the conspiracy or just the-10-

object of the conspiracy. In instruction No. 23, t he district court gave clear instructions regarding the government’s burden of p roof on the conspiracy charge, including a comprehensive definition of the term “overt act.” The evidence presented at trial was abundantly sufficie nt for a jury to conclude that Whiters knowingly committed at least one overt act in an effort to accomplish some object of the conspiracy. Whiters also challenges jury instruction No. 20 whi ch he claims was unnecessary and “could only produce confusion and a[sic] unrelaible [sic] verdict.” Instruction No. 20 reads, An individual named Marcus Block is mentioned in th e indictment in this case. He is not on trial in this action and y ou will not be called upon to return a verdict as to his guilt or innocen ce. The only defendant on trial in this case, and upon whom you will be asked to return a verdict, is Maurice Whiters. Whiters’ has failed to show how the inclusion of th is instruction, read in concert with the remaining instructions, constitutes error. This is particularly true in light of instruction No. 13 which reads, in part, “ the fact that a witness has plead guilty to the crime charged in the indictment is no t evidence, in and of itself, of the guilt of any other person.” Whiters then argues that instruction No. 23 was def ective because of the placement of commas in the instruction. In instruc tion No. 23, the jury was instructed that they could not find Whiters guilty of conspiracy unless they found-11-

“that the defendant Maurice Whiters, knowing the un lawful purpose and essential objectives of the plan, willfully joined in it.” W hiters claims that because of the placement of commas, the district court was actuall y instructing the jury that Whiters hadknowledge of the unlawful purpose and essential objectives of the plan. This argument is meritless. This court has read this instruction as a whole and concludes that no reasonable jury could ascribe it the meaning advocated by Whiters. On appeal, Whiters has made no showing of error, let alone plain error, with respect to any of his challenges to the jury i nstructions. Upon review of the entire proceedings, this court c oncludes that the record establishes no non-frivolous ground for appeal. The district court’s judgment of conviction and sentence are hereby affirmed and counsel’s motion to withdraw is granted

. ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge