* 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this opinion should not be published and is not precedent except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. 98-10228

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BARBARA BLYTHE HARRIS,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:97-CR-95-1-A

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December 1, 1998

Before DAVIS, DUHE’, and PARKER, Circuit Judges.

PER CURIAM:*

Barbara Blythe Harris was convicted by a jury for conspiracy

to commit bank robbery and for armed bank robbery and aiding and

abetting and has appealed. 

Harris contends that the district court erred in refusing to

appoint an investigator at Government expense, under 18 U.S.C.

§ 3006A(e)(1), to help her develop evidence supporting her alibi

defense. In her motion, Harris argued only that the evidence she

wished to develop and the witnesses she wished to interview were

located in another city, that judicial economy would be served 
No. 98-10228

-2-

through the appointment of an investigator, that the unidentified

witnesses would provide alibi testimony, and that the services of

an investigator were necessary to disprove the Government’s case. 

Harris did not demonstrate with specificity why appointment of an

investigator was necessary. See United States v. Gadison, 8 F.3d

186, 191 (5th Cir. 1993). 

Harris contends that the district court erred in admitting

in evidence a note which the Government contended had been

written by Harris in her jail cell prior to the trial. Harris

contends on appeal that it was unfair to disclose to the jury

that she had been detained pending trial. She also argues that

the evidence was improperly admitted under Fed. R. Evid. 404(b)

because it tended to show an attempt by Harris to suborn perjury. 

In United States v. Castillo, 77 F.3d 1480, 1489 (5th Cir. 1996),

we held that testimony that a defendant’s request for a witness

to fabricate a story was admissible to show the defendant’s

knowledge and membership in a conspiracy. Under Castillo, the

evidence was relevant to show Harris’s knowledge of the bank

robbery and membership in the conspiracy. It was up to the jury

to determine what weight should be given to the evidence. 

Although the evidence was prejudicial, the prejudice was

mitigated because the district court instructed the jury that

Harris was presumed to be innocent and that it was not to

consider the fact that Harris was jailed pending trial in

determining her guilt. See United States v. Garza, 42 F.3d 251,

254 (5th Cir. 1994). 
No. 98-10228

-3-

Harris contends that, because she was acquitted of the

charge of using and carrying a firearm in connection with a crime

of violence, the district court erred by raising her offense

level by seven levels pursuant to U.S.S.G. § 2B3.1(b)(2)(A),

because a gun was discharged during the robbery. Under U.S.S.G.

§ 1B1.3(a)(1)(B), a defendant is responsible for “all reasonably

foreseeable acts and omissions of others in furtherance of [a]

jointly undertaken criminal activity.” This court has affirmed

imposition of the § 2B3.1(b)(2) enhancement in similar

circumstances. See United States v. Burton, 126 F.3d 666, 678-79

(5th Cir. 1997); see also § 1B1.3 comment. (n.2(B)(1)). 

Harris contends that the district court erred at sentencing

in failing to adjust her offense level downward for acceptance of

responsibility. If a defendant “clearly demonstrates acceptance

of responsibility for h[er] offense,” the sentencing guidelines

instruct the district court to decrease the defendant’s offense

level by two and possibly three points. U.S.S.G. § 3E1.1(a) and

(b). The defendant bears the burden of proving that she is

entitled to the downward adjustment. United States v. Kinder,

946 F.2d 362, 367 (5th Cir. 1991). Because the issue is raised

for the first time on appeal, it is reviewed for plain error. 

See United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.

1994) (en banc). 

In her rambling statement at the sentencing hearing, Harris

continued to maintain her innocence and would admit only that she

had exercised poor judgment in associating with Mark Harris. It

is clear from Harris’s statement that she has not accepted
No. 98-10228

-4-

responsibility and feels no remorse for the conduct for which she

was convicted. See § 3E1.3 comment. (n.1(a)). The adjustment

for acceptance of responsibility is not intended to apply to

defendants who deny the essential factual elements of guilt and

put the Government to its burden of proof at trial. See § 3E1.3

comment. (n.2). No error has been shown, plain or otherwise. 

AFFIRMED.