Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth

Circuit Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-11127

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRANDON MARQUES GENTLE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

No. 3:08-CR-30-B

Before JONES, Chief Judge, SMITH, and ELROD, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Brandon Gentle appeals his conviction for bank

robbery and aiding and abetting bank robbery in violation of 18 U.S.C. § 2113(a)

and (d). He argues that the district court erred by: (1) permitting the

government to cross examine a defense witness about a pending burglary charge,

resulting in the “effective exclusion” of that witness’s testimony; (2) excluding

bias evidence regarding a key Government witness; and (3) denying his motions

for acquittal, and in the alternative, a new trial, which alleged insufficient

United States Court of Appeals

Fifth Circuit

F I L E D

January 19, 2010

Charles R. Fulbruge III

Clerk

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 The government contends that this third person was Antonio Few, a cousin of Gentle 1

and Hines. Gentle alleges that he did not know the third person, and that it was not Antonio

Few. 

2

evidence to support his conviction. For the reasons stated below, we AFFIRM

Gentle’s conviction. 

I.

 On January 14, 2008, Rodrick Hines robbed a Citibank in Dallas, Texas.

Gentle dropped Hines off near the Citibank before the robbery. Shortly after 5

p.m., Hines entered the bank while wearing a ski-mask, gloves, sunglasses, and

a hat. A bank surveillance camera captured Hines as he held the teller at

gunpoint and ordered her to place money in the plastic liner of her trash can. 

When an unseen employee activated an alarm, Hines ran out of the bank. As

Hines made his escape down Bearden Street, the plastic trash bag containing

the money broke and much of the cash fell to the ground. Hines got into Gentle’s

car following the robbery. Gentle, while driving away, stopped to pick up some

of the dropped cash. Afterward, police apprehended Gentle in the driver’s seat

of the getaway vehicle, but Hines and a third man had fled the vehicle. Hines

was apprehended, but the third man escaped. 

1

In February 2008, Gentle and Hines were charged with bank robbery and

aiding and abetting bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d).

Hines pleaded guilty, and Gentle proceeded to trial. During Gentle’s five-day

jury trial, the government sought to prove that Gentle knowingly aided and

abetted Hines in the robbery by acting as the getaway driver. Gentle

maintained that he had been an unknowing participant in the escape from the

robbery—he had no knowledge of Hines’s intentions when he drove Hines to the

area near the bank, and he was unaware that Hines had robbed the bank when

Gentle picked him up after the robbery. According to Gentle, he had been

playing basketball with Hines and Antonio Few that afternoon. He then gave

Hines and a third man a ride. After dropping Hines off at the bank, Gentle went

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to his girlfriend’s house where he remained until Hines called him asking to be

picked up. Gentle then retrieved Hines near the bank, but was unaware that

Hines had robbed the bank until after they had left the scene. 

At trial, Hines testified that he decided to rob the bank as Gentle drove

him and Antonio Few past the bank. Hines said that although Gentle initially

attempted to dissuade him from robbing it, Gentle turned around at Hines’s

request and drove back toward the bank. Gentle then parked, and Hines

dressed for the robbery in Gentle’s car. Hines put on a pair of Gentle’s gloves,

a ski-mask, sunglasses, and a hat, and then left for the bank. Hines testified

that the men had agreed to split the money, and Gentle consented to wait for

Hines and pick him up after the robbery. He also said that because Gentle was

waiting for him, he never called Gentle to be picked up. After the robbery,

Hines got into Gentle’s car and they stopped to retrieve the dropped cash. Hines

also testified that they parked near Brandon’s house after the robbery. On crossexamination, Gentle’s counsel questioned Hines about his reasons for drastically

changing the initial story he gave police, which was that Gentle was not involved

in the robbery in any capacity. The defense cross-examined Hines about his

motives for changing his story to implicate Gentle and about phone records

reflecting multiple phone calls from Gentle to Hines at times when Hines

testified that the two were together. 

The government also presented evidence to refute Gentle’s version of the

events on the day of the robbery. Detective Glen Bradshaw testified that

immediately after the arrest, Gentle told him that “a guy put a gun to me and

made me drive, made me rob the bank.” The jury also viewed Gentle’s

videotaped interview following his arrest, in which he stated that he did not

know that Hines had robbed the bank until they had driven away from the area.

In that interview, Gentle claimed that Hines had called him to come pick him

up. Although Gentle did not give a specific time-frame for the call, the

government introduced phone records showing that no call was made near 5 p.m.

Hines’s fiancé, Kristen Neal, testified that Gentle had called her multiple times

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4

to request that Hines “stick to the story” that Gentle was innocent. Dallas

Police Detective Dennis Mumford testified that it would be impossible to drive

from his girlfriend’s house at the time she alleged he left (after 5 p.m.) and the

time the robbery was complete (5:07 p.m.). The government also presented

evidence that the ski-mask, hat, and gun used during the robbery were found in

close proximity to the arrest scene near Gentle’s house, confirming that the

items had been transported in Gentle’s car. Gentle’s arresting officer also

testified that he found Gentle in the getaway car after the robbery holding a

stack of stolen money. 

Gentle’s counsel conducted a vigorous cross-examination of the

government’s witnesses. He questioned Detective Bradshaw about telling lies

and giving half-truths to Gentle during the high-pressure “good cop-bad cop”

interrogation. He also cross-examined Neal regarding her motives for testifying

about Gentle, and about her reasons for making three-way phone calls to Gentle

with Hines’s mother, Tammy Few, secretly on the line. At the close of the

government’s case in chief, Gentle moved for a judgment of acquittal based on

insufficient evidence to support the verdict, which was denied. Gentle presented

statements made by Sylvester Few, Hines’s grandfather, referencing an attempt

to “bring Gentle down” if Hines “went down.” Gentle’s girlfriend testified that

Gentle was with her during the time of the alleged robbery, and that he did not

leave her house until after 5 p.m. Hugo Rico, the man who painted Gentle’s car

a few days before the robbery, testified that when he spoke with Gentle on the

phone at 4:53 p.m. on the day of the robbery, he heard a female voice in the

background. The defense also presented testimony from Antonio Few’s

girlfriend that Antonio Few was with her until 6 p.m. that day, not with Hines

and Gentle during the robbery and getaway.

The jury found Gentle guilty of aiding and abetting bank robbery.

Following a hearing, the court denied Gentle’s motions for new trial and

acquittal based on the government’s “credible” testimony and the “strong

circumstantial proof” supporting Gentle’s guilt. 

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 Antonio Few had been incarcerated on a pending murder charge and a separate 2

pending charge for burglary of an ATM. The government did not seek to cross-examine him

about the murder charge.

5

II.

Gentle contends that the district court abused its discretion when it ruled

that the government could, under Federal Rule of Evidence 608(b), inquire into

defense witness Antonio Few’s pending burglary charges on cross-examination.

A district court’s evidentiary rulings are typically reviewed for abuse of

discretion. United States v. Sanders, 343 F.3d 511, 517 (5th Cir. 2003). This

standard of review is “heightened in a criminal case, however, which demands

that evidence . . . be strictly relevant to the particular offense charged.” United

States v. Hernandez-Guevara, 162 F.3d 863, 869 (5th Cir. 1998) (citation and

internal quotation marks omitted). A “‘trial court abuses its discretion when its

ruling is based on an erroneous view of the law or a clearly erroneous

assessment of the evidence.’” United States v. Garcia, 530 F.3d 348, 351 (5th

Cir. 2008). Error is not reversible, however, unless it “substantially prejudiced”

the defendant’s rights. United States v. Lopez, 979 F.2d 1024, 1034 (5th Cir.

1992); see Fed R. Crim. P. 52(a). 

Gentle’s counsel intended to call Antonio Few to testify that, contrary to

Hines’s account, Antonio Few was not the “third man” involved in the robbery.

At the beginning of the defense case, the court considered whether the

government would be permitted to cross-examine Antonio Few about his pending

burglary charge. The government requested permission to cross-examine 2

Antonio Few about the March 2008 burglary charge “under Rule 608, specifically

under Rule 608(b) . . . and that his character for truthfulness can be inquired

about on cross-examination with specific instances.” The government sought

specifically to question him about the circumstances of his burglary arrest

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 The trial transcript reveals that the government expressed no intention to bring in 3

extrinsic evidence about Antonio Few’s pending burglary charge, and the court consented only

to allowing the government to “ask about” these charges. 

6

because “at the time that he was arrested, Antonio Few had in his possession a

black stocking cap, a white mask, and a black pair of gloves that are very similar

to the modus that -- or the method that was used in this robbery.” The court

concluded that the government could inquire about the burglary and the items

found in conjunction with his arrest, but prohibited any mention of the ATM

machine to guard against prejudice in light of a recent spate of local ATM

burglaries. When time came for Antonio Few to testify, Gentle’s counsel notified

the court that he had decided to invoke his Fifth Amendment right not to testify.

The court reaffirmed its restrictions on inquiry into his burglary charge, but

explained that “[Antonio Few’s] potential bias and prejudice and credibility as

a witness can certainly be tested by questioning him on whether or not he

actually had a ski mask with him.” 

Gentle argues on appeal that this ruling effectively precluded Antonio Few

from testifying at all and ran afoul of Rule 608(b) which excludes extrinsic

evidence of bad acts for which there has been no conviction. He claims that

cross-examination into these bad acts is therefore forbidden. Gentle’s argument

is misplaced; cross-examination is not a form of “extrinsic evidence.” United 3

States v. Townsend, 31 F.3d 262, 269 (5th Cir. 1994) (“Rule 608(b) provides that

specific acts of misconduct, though they cannot be proved by extrinsic evidence,

may be elicited on cross-examination.”). The court properly permitted the crossexamination into the circumstances of Antonio Few’s burglary charge for the

purpose of refuting his anticipated testimony that he was not involved in the

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United States v. Farias-Farias, 925 F.2d 805, 810 (5th Cir. 1991) (Rule 608(b) does 4

not “stand as a bar to the admission of evidence introduced to contradict, and which the jury

might find disproves, a witness's testimony as to a material issue of the case.”); accord United

States v. Opager, 589 F.2d 799, 802 (5th Cir. 1979); see also United States v. Barrentine, 591

F.2d 1069, 1081 (5th Cir. 1979) (“When the witness . . . was an accomplice or participant in the

crime for which the defendant is being prosecuted, the importance of full cross-examination

to disclose possible bias is necessarily increased.” (citation omitted)).

7

Citibank robbery, and for the purpose of demonstrating bias. Rule 608(b) poses

no bar to cross-examination for these purposes.4

Gentle has also failed to demonstrate that the prejudice from the crossexamination would have substantially outweighed its probative value. See Fed.

R. Evid. 403. The court restricted the scope of the cross-examination to prevent

undue prejudice, so we find no abuse of discretion.

III.

Gentle also claims that the district court erred reversibly when it excluded

an-out of-court statement allegedly made by Tammy Few, which Gentle offered

for the purpose of showing that Hines was biased against Gentle. As noted

above, “[w]e review a district court’s evidentiary rulings for abuse of discretion.”

United States v. Sanders, 343 F.3d 511, 517 (5th Cir. 2003). If “an abuse of

discretion has occurred, we view the error under the harmless error doctrine.”

United States v. Townsend, 31 F.3d 262, 268 (5th Cir. 1994). 

Gentle planned to present testimony from various witnesses to establish

that Tammy Few and Sylvester Few—Hines’s mother and grandfather,

respectively—both made statements to the effect of “[i]f Rodrick Hines goes down

for this, then Brandon is going to go down, too.” The government filed a motion

in limine, attempting to exclude those statements as prejudicial hearsay. Gentle

responded that the statements were not offered for truth of the matter

asserted—to show that the family members really would do anything to bring

Gentle down—but to show the “motive, credibility, [and] bias of Rodrick Hines.”

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Concluding that the statement “could realistically be used as a reasonable

inference to rely upon that perhaps Mr. Hines had some bias in this,” the court

admitted Sylvester Few’s statement with the limiting instruction that “it’s to be

considered as state-of-mind testimony to be considered as to the credibility of

Mr. Hines.” The court expressed some hesitation in its decision:

. . . [W]e can characterize all of this stuff, Mrs. Few and the

grandfather, as to the state of mind. But that doesn't mean that its

not just as significant, if not more, for the truth of the matter

asserted. And the test is, what does its significance draw from?

From where is it derived? Is it from because it was true, or is it

because of the state of mind? And that’s not always clear. 

But given the fact that this is a situation involving family

members, without question, cousins. I guess Mr. Hines and Mr.

Gentle, their grandparents were brother and sister. And we had the

young lady here who just testified that is close, obviously, with Mrs.

Few. . . .

(emphasis added). Although the court was willing to admit Sylvester Few’s

statement as evidence of bias, it did not allow the defense to ask about Tammy

Few’s statement, which was made at a later time:

I think that is, however you say it, [Tammy Few’s

statement] seems to me offered more for the truth -- it’s an

after-the-fact conversation -- than the actual -- on the heels of the

detention hearing discussion by the grandfather, which seems

much more a state of mind, which I think could be relevant to

establish that perhaps there is some anger and heat between the

families that could have affected the tenor and the nature of Mr.

Hines’ testimony.

So I think it’s relevant to the credibility of Mr. Hines, and

that’s it for right now. 

 Gentle argues that the court’s exclusion of Tammy Few’s statement was

improper because there “is nothing in the Rules of Evidence that would prohibit

Gentle from presenting” the testimony to show Hines’s “motive and bias.” We

agree. United States v. Parry, 649 F.2d 292, 295 (5th Cir. 1981); see also United

States v. Abel, 469 U.S. 45, 51 (1984). 

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 The distinction between hearsay offered under the “state of mind” hearsay exception

5

and nonhearsay has posed challenges for many courts. McCormick on Evidence § 274 (6th ed.

2009) (“Courts . . . have tended to lump together arguably hearsay statements asserting the

declarant's state of mind with those arguably nonhearsay that tend to prove state of mind

circumstantially, applying a general exception to the hearsay rule and ignoring the possibility

that many of these statements could be treated as nonhearsay.” (footnote omitted)); cf. United

States v. Harris, 733 F.2d 994, 1004 (2d Cir. 1984) (recognizing that the phraseology used

rendered a statement admissible “either as nonhearsay or under the then existing state-ofmind hearsay exception.” (emphasis added)). 

9

The district court conflated two separate purposes for which testimony

may be admitted: (1) showing bias—an impeachment method which is not

hearsay, and (2) showing state of mind—a hearsay exception under Rule 803(3).5

 Determining that the evidence could not be properly admitted under Rule 803(3)

to show state of mind, the court excluded it both for that purpose and for the

purpose of showing bias. However, by posing this choice, the court failed to

consider that it could be offered for bias regardless of whether it constituted

evidence of state of mind. See Fed. R. Evid. 801(c); Parry, 649 F.2d at 295

(“[W]henever an out of court statement is offered for some purpose other than

to prove the truth of the matter asserted,” the rule against hearsay does not

apply because “the value of the statement does not rest upon the declarant’s

credibility.”). As the court determined that the statement was relevant to show

Hines’s bias against Gentle, excluding it on the basis of failure to show a hearsay

exception was error. 

Nevertheless, the error was harmless because an identical statement by

Sylvester Few was admitted. Where the excluded information “would have been

cumulative” of other admitted evidence, its exclusion is “merely harmless error.”

United States v. Ramirez, 174 F.3d 584, 590 (5th Cir. 1999). Gentle’s counsel

admitted at trial that the statements by Tammy and Sylvester Few were

virtually identical and shared “the same wording.” Sylvester Few’s statement

was admitted for the purpose of showing a “family bias” against Gentle,

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presumably shared by Hines, so Tammy Few’s identical statement would have

been cumulative if offered for this purpose. Further, Gentle’s counsel argued in

summation that Tammy Few and Hines’s fiancé were “trying to bring Brandon

Gentle down because Rodrick Hines went down, just like they said they would.”

As Tammy Few’s statement was not only cumulative of other evidence admitted

at trial, but was also offered in summation for truth, we cannot conclude that its

exclusion prejudiced Gentle’s substantial rights. 

IV.

Gentle claims the district court erred by denying his motion for new trial

and his motion for a judgment of acquittal based on insufficient evidence of guilt.

We review a district court’s denial of a motion for new trial for “abuse of

discretion.” United States v. Tarango, 396 F.3d 666, 672 (5th Cir. 2005). Our

review is “deferential to the trial court because the appellate court has only read

the record, and, unlike the trial court, did not see the impact of witnesses on the

jury or observe the demeanor of witnesses.” United States v. Wall, 389 F.3d 457,

465 (5th Cir. 2004). Such motions are disfavored, and the denial will stand

unless “the party that was the movant in district court makes a clear showing

of an absolute absence of evidence to support the jury’s verdict, thus indicating

that the trial court had abused its discretion in refusing to find the jury's verdict

contrary to the great weight of the evidence.” Rutherford v. Harris County, Tex.,

197 F.3d 173, 179 (5th Cir. 1999) (citations omitted).

Gentle has not made “a clear showing of an absolute absence of evidence

to support the jury’s verdict.” Id. To convict Gentle for aiding and abetting

Hines in the robbery, the government was required to show that he: (1) shared

in the criminal intent of the principal, (2) participated in the venture through

some affirmative conduct designed to aid the venture, and (3) “sought by action”

to make the venture succeed. United States v. Lopez-Urbina, 434 F.3d 750, 757

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(5th Cir. 2007). Gentle argues that the there was “no direct credible evidence”

to show Gentle’s shared intention and agreement to participate in the bank

robbery because Hines’s testimony as to these elements was “completely

discredited.” The transcript does not support Gentle’s claim that Hines was

thoroughly discredited, so he is not entitled to a reversal of the court’s denial of

his motion for new trial.

Gentle also argues that the court improperly denied his motion for

acquittal, and claims that the evidence was legally insufficient to support the

jury’s verdict. We evaluate claims of evidentiary insufficiency to determine

“whether any reasonable trier of fact could have found that the evidence

established the appellant’s guilt beyond a reasonable doubt.” United States v.

Jaramillo, 42 F.3d 920, 922–23 (5th Cir. 1995). In making this determination,

we review the evidence in the light most favorable to the government, United

States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996), and we may not review the

credibility of witnesses or the weight of the evidence. See United States v.

Floyd, 343 F.3d 363, 370 (5th Cir. 2003). 

 Gentle’s evidentiary sufficiency claim fails because Hines’s testimony

alone is adequate to support the verdict. When an accomplice testifies that a

defendant was a participant in a crime, that testimony is sufficient to sustain a

conviction “even if the witness is interested due to a plea bargain or promise of

leniency, unless the testimony is incredible or insubstantial on its face.” See

United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994) (citations omitted)

(finding testimony of a co-conspirator sufficient to support conspiracy

conviction); see also United States v. Dailey, 208 F. App’x 344, 346 (5th Cir. Dec.

8, 2006) (finding that the accomplices’ uncorroborated testimony was sufficient

to support a verdict of aiding and abetting bank robbery where the accomplice

testified that the defendant participated in the robbery). Hines’s testimony

covered all elements of the crime, and Gentle has made no argument that it was

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legally incredible. See Bermea, 30 F.3d at 1552. Moreover, the circumstantial

and testimonial evidence favored the government overwhelmingly. Gentle

admitted to driving Hines to the bank, dropping him off in the vicinity, and

picking up money after the bank robbery. The government’s witnesses testified

that Gentle was found with a stack of money in his hand, and the robbery

instruments were found in a place suggesting they were with Hines when Gentle

picked him up. The government also presented witness testimony that refuted

Gentle’s explanation of the day’s events, including his claim that he was at his

girlfriend’s house during the robbery. This is not a case where the evidence gave

“equal or nearly equal” circumstantial support to a theory of guilt or innocence.

See United States v. Pennington, 20 F.3d 593, 597 (5th Cir. 1994). Therefore,

we conclude that the verdict was supported by sufficient evidence.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

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