* Local Rule 47.5.1 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens on

the legal profession." Pursuant to that rule, the court has determined that this

opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-40156

Summary Calendar

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOAN CATHERINE MALBROUGH,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

(1:94 CR 61 3)

_________________________

September 19, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Joan Malbrough appeals her conviction of, and sentence for,

embezzling postal funds, converting property of the United States

Postal Service, and failing to account for said funds and property

when required, in violation of 18 U.S.C. §§ 2, 371, 641, and 1711.

Finding no reversible error, we affirm.
2

I.

In December 1993, Postal Service Inspector Randall Till

received information regarding a shortage of $1,649.39 in the

assigned accountability of Sharon Taylor, a Postal Service window

clerk in the Downtown Post Office in Beaumont, Texas. In February

1994, Till contacted Taylor's Supervisor, Carol Smith, who informed

Till that the shortage was still outstanding. Till and Smith

agreed to conduct an unscheduled audit of Taylor's accountability.

Till established video surveillance at the Post Office and

positioned himself to be able to view personally the activities of

the window clerks.

Sharon Taylor, Malbrough's codefendant who pleaded guilty

prior to trial, testified regarding her involvement in the offense.

Taylor testified that on March 2, 1994, Smith, her supervisor, told

her at about 9:30 or 10:00 a.m. that she was going to be audited

after lunch. It was an unscheduled audit, and she knew that the

audit would reveal a shortage in her accountability because she had

taken money, approximately $2,500. Taylor gave a coworker,

Duplantier, a note informing her that she was going to be counted

after lunch and telling her how much it was. She then walked down

to Malbrough's window and told her that she was going to be counted

after lunch.

Taylor told Malbrough that she would need about four big coils

of stamps. She told her she needed them because she was being

counted; she did not tell Malbrough that she needed them for a

customer. Malbrough looked in her cash drawer but did not have
3

four big coils. Later, after lunch, Malbrough came to Taylor's

window and gave her twenty smaller coils, laying them on her window

without speaking. Till observed Malbrough remove several small

stamp coils from her safe, place them in a book, walk to Taylor's

work station, and place them on the end of Taylor's counter. When

Till confronted Taylor after her audit, Taylor admitted that

Malbrough had given her the coils of stamps.

The total value of the stamp coils that Malbrough gave to

Taylor was $580. When Malbrough was audited, however, her

accountability was over $800 short.

Malbrough testified that she had given the stamps to Taylor

but that she was not aware that Taylor was about to be audited.

She testified that if she had known, she would not have given her

the stamps. Malbrough could not explain the $800 shortage in her

accountability.

II.

A.

Malbrough argues that the district court erred in failing to

grant a mistrial because of the improper introduction of her codefendants' guilty pleas. She argues that the prosecutor improperly referred to the guilty pleas of Taylor and Duplantier during

voir dire and to Taylor's plea during direct examination of Taylor.

She contends that the district court's instructions to the jury

regarding the use of this information was inadequate because it did

not limit the jury's consideration of the pleas to the credibility
4

of the witnesses.

The government mentioned in voir dire the fact that "two other

ladies" involved in this conspiracy had pleaded guilty.

Malbrough's attorney objected, and the district court sustained the

objection and instructed the jury that that information was not

relevant to whether the government could prove the elements of the

counts of the indictment against Malbrough. Malbrough's attorney

moved for a mistrial, which the district court denied.

After an off-the-record, side-bar discussion requested by the

government, the government proceeded to question the potential

jurors on voir dire about whether any of them would have a problem

with testimony by a coconspirator. Malbrough's attorney again

moved for a mistrial, which the district court carried with the

case.

In the second instance, the government questioned Taylor on

direct examination about the fact of her guilty plea. Malbrough's

attorney objected again and reurged the motion for a mistrial. The

district court ruled that the motion would be taken with the case

and instructed the jury that that fact was irrelevant to the guilt

of Malbrough. The district court instructed that Taylor could

testify as to what she did and what she knew about what others had

done.

The government again requested a side-bar, after which the

district court ruled that it would allow limited questioning on the

subject, "admissible only as it might affect the credibility of

this witness." Malbrough's attorney renewed his objection, which
5

was overruled subject to renewal. The government proceeded to

question Taylor about the fact that she had entered a plea

agreement with the government and that, as part of that agreement,

she had agreed to provide truthful testimony at this trial. The

government then proceeded to question Taylor about her personal

knowledge of the facts of the offense.

We will reverse a district court's denial of a motion for

mistrial only for an abuse of discretion. United States v.

Limones, 8 F.3d 1004, 1007 (5th Cir. 1993), cert. denied, 114

S. Ct. 1543 (1994). A defendant is entitled to have the issue of

his guilt determined upon the evidence against him and not on

whether a codefendant has pleaded guilty to the same change.

United States v. Black, 685 F.2d 132, 135 (5th Cir.), cert. denied,

459 U.S. 1021 (1982). A witness-accomplices's guilty plea may be

admitted into evidence, however, if it serves a legitimate purpose

and the district court gives a proper limiting instruction. United

States v. Mitchell, 31 F.3d 271, 276-77 (5th Cir.), cert. denied,

115 S. Ct. 455 (1994). Other factors to be considered are whether

the plea was improperly emphasized or used as substantive evidence

of guilt and whether introduction of the plea was invited by

defense counsel. Black, 685 F.2d at 135.

In voir dire, defense counsel stated that in this case,

"someone is going to lie." By this remark, defense counsel could

be considered to have invited the prosecution to introduce evidence

of Taylor's guilty plea in order to "`blunt the sword of

anticipated impeachment.'" Mitchell, 31 F.3d at 277 (citation
6

omitted); see also United States v. Robins, 978 F.2d 881, 888 (5th

Cir. 1992) (holding that defense counsel's opening remarks invited

the jury to regard with suspicion adverse testimony by witness who

plea bargained); United States v. Casto, 889 F.2d 562, 567 (5th

Cir. 1989), cert. denied, 493 U.S. 1092 (1990) (opining that

because defense counsel in opening argument invited jury to regard

with suspicion adverse testimony by codefendant who pleaded guilty,

it was prosecution's privilege to defuse potential attacks on

government witnesses's credibility during direct examination by

adducing fact of guilty plea).

During voir dire, after the government's first reference to a

codefendant's guilty plea, the court instructed the jury

contemporaneously that whether another person was previously a

defendant in this case was irrelevant to Malbrough's guilt and was

admissible only as it might affect the witness's credibility.

Later during the government's case, the court instructed the jurors

that the fact that Taylor pleaded guilty in this case was not

evidence of the guilt of any other person and that it went only to

her general credibility. In its final instructions to the jury,

the court again instructed that "the fact that an accomplice has

entered a plea of guilty to the offense charged is not evidence in

and of itself of the guilt of any other person." 

Contrary to Malbrough's argument, the district court's

limiting instructions were more than adequate to counter any

prejudice from the introduction of evidence of Taylor's guilty

plea. See Mitchell, 31 F.3d at 277 (reasoning that a proper
7

limiting instruction includes instruction that guilty plea could be

considered only in determining witness's credibility and was not

evidence of defendant's guilt). The district court did not abuse

its discretion in denying Malbrough's motion for mistrial.

B.

Malbrough argues that the district court erred in awarding a

two-point increase in her offense level for more than minimal

planning. She contends that there was no direct evidence that she

was involved in anything more than minimal planning and that there

was no evidence that showed that she ever committed a similar

offense in the past. She further contends that there was no

evidence of an agreement between the defendants or of premeditated

planning or that she took significant steps to conceal the offense.

The probation officer recommended that Malbrough's offense

level be increased by two points for more than minimal planning

because her actions as part of the conspiracy occurred over a

period of at least one year, involving the cooperation of three

postal employees; and that, by transferring postal stock, the

coconspirators were able to prevent embezzled money from being

detected during audits. Malbrough objected, arguing that the

evidence showed only a one-time transaction. The probation officer

responded that according to statements to Till by Taylor and

Duplantier, the practice of exchanging stock to cover shortages

caused by embezzlement had occurred previously on more than one

occasion. Taylor stated that she had loaned postage stock to
8

Malbrough prior to an audit at least twice in the past year and had

done the same for Duplantier within the last six months. It was

the probation officer's opinion that the circumstances of this case

suggested that Malbrough's actions were well thought out and that

each instance of stock exchange was not purely opportune. The

district court, after reading aloud the probation officer's

response to Malbrough's objection, found that the probation

officer's opinion was correct, that there was more than minimal

planning, and denied Malbrough's objection.

The sentencing guidelines provide for a two-level increase in

the offense level if the offense involved more than minimal

planning. U.S.S.G. § 2B1.1(b)(5)(A). The guidelines define more

than minimal planning as "more planning than is typical for

commission of the offense in a simple form." § 1B1.1, comment.

(n.1(f)). More than minimal planning exists if significant

affirmative steps were taken to conceal the offense. It is also

deemed present in a case involving repeated acts, unless it is

clear that each instance was purely opportune. As an example, the

guidelines explain that in the case of embezzlement, "a single

taking accomplished by a false book entry would constitute only

minimal planning," but that "creating purchase orders to, and

invoices from, a dummy corporation for merchandise that was never

delivered would constitute more than minimal planning, as would

several instances of taking money, each accompanied by false

entries." Whether a defendant has engaged in more than minimal

planning is a fact question reviewed under the clearly erroneous
9

standard. United States v. McCord, 33 F.3d 1434, 1454 (5th Cir.

1994), cert. denied, 115 S. Ct. 2558 (1995).

Malbrough's argument focuses only upon the evidence produced

at trial. She does not address the statements of Taylor and

Duplantier, recounted in the presentence report, regarding the fact

that the embezzlement and stock exchanges to cover up shortages in

audits had been going on for at least a year. She does not argue

that such statements could not be considered by the district court.

Those statements adequately support the court's finding that more

than minimal planning existed; the court did not clearly err in its

finding.

C.

Malbrough argues that there were other errors at trial which,

although each may not by themselves be considered harmful, when

taken together cumulated into reversible error because they

deprived her of her right to due process of law by seriously

affecting the fairness and integrity of her trial. Those errors

were (a) repeated mischaracterization of the evidence by a

government witness; (b) the prosecutor's comment on her failure to

make a pretrial statement, in violation of her Fifth Amendment

right to remain silent; and (c) the prosecutor's introduction of

matters not in evidence before the jury in closing arguments.

Trial errors that are harmless when considered alone may

mandate reversal when considered cumulatively, if the cumulative

effect is to deny the defendant's right to a fair trial. United
10

States v. Labarbera, 581 F.2d 107, 110 (5th Cir. 1978).

"Cumulative reversible error, although not unknown to [this

court's] jurisprudence, is a rarity." United States v. Iredia, 866

F.2d 114, 118 (5th Cir.), cert. denied, 492 U.S. 921 (1989).

1.

Malbrough states that a government witness, whom she does not

specifically identify, mischaracterized the evidence and persisted

to mischaracterize her actions and intentions despite specific

instructions from the court. She does not state nor does she

explain how she was prejudiced by this testimony. Malbrough cites

no cases in support of her argument. We could refuse to address

this issue for failure to brief it adequately. See United States

v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th Cir. 1991)

(internal quotation marks and citation omitted) (stating that any

issues not raised or argued in the appellant's brief are considered

waived and will not be entertained on appeal), cert. denied, 113 S.

Ct. 2369 (1993).

Nonetheless, addressing the merits, the testimony of which

Malbrough complains is Till's description of her actions in placing

the coils of stamps on Taylor's work station. Till testified that

Malbrough "hid" the coils by placing them under a book. Defense

counsel objected, and the district court instructed the witness not

to characterize her intent, but just to say what he saw. The court

instructed the jury to disregard the witness's characterization. 

Till then testified that Malbrough had placed the coils under
11

the book so that the book completely covered the coils. He then

went on to describe that Malbrough had "surreptitiously" placed the

coils on the end of Taylor's counter. The court again warned Till

about characterizing what he saw. 

Till then explained, without characterization, exactly what he

saw Malbrough do as she placed the coils on the counter. Defense

counsel renewed the objection to Till's characterization of what

was on the videotape, and the court stated that the jury could

determine whether the portrayal was accurate, based upon the

videotape, and instructed the jury to that effect.

Any unfair or inaccurate characterization of Malbrough's

actions by Till was cured by the instructions and the fact that the

jury could see Malbrough's actions for itself on the videotape.

Malbrough has not shown any error, much less reversible error

affecting her right to a fair trial.

2.

Malbrough contends that error was committed when the

prosecution commented on her failure to make a pretrial statement,

in violation of her Fifth Amendment right to remain silent. On

direct examination of Till, the prosecutor asked whether Malbrough

had initially agreed to provide a written statement, as Taylor had

done. Till replied that she had agreed. 

The prosecutor then asked whether Malbrough eventually had

provided him with a written statement, to which Till responded that

she had not. Defense counsel objected that the question and answer
12

violated Malbrough's right to remain silent. He asked that the

question and answer be stricken and that the jury be given a

limiting instruction. 

The district court questioned whether Malbrough was in

custody, and the witness stated that she was not, that it was

merely an investigatory interview. The district court overruled

the objection. 

Defense counsel asked to take the witness on voir dire. The

district court denied permission at that time. The prosecutor

again asked Till whether Malbrough had provided a written

statement, and Till replied that she had not, upon the advice of

her union representative. Defense counsel again objected, and the

court recessed and excused the jury.

At the recess, it was established that Till had advised

Malbrough of her Miranda rights and that she had exercised her

right to remain silent. The district court sustained the

objection, and defense counsel moved for a mistrial, which the

district court denied. The district court instructed the jury to

"disregard Mr. Till's testimony that Ms. Malbrough refused to make

a written statement after being warned by him that she could

exercise her rights under the Fifth Amendment not to make a

statement."

The prosecutor's actions, in drawing attention to the fact

that Malbrough had chosen to exercise her right to remain silent,

were improper. See United States v. Laury, 985 F.2d 1293, 1302-04

(5th Cir. 1993) (holding prosecutor's comment on defendant's post-
13

arrest silence improper and in violation of Doyle v. Ohio, 426 U.S.

610 (1976)). Any error was rendered harmless, however, by the

curative instruction. See United States v. Carter, 953 F.2d 1449,

1466 (5th Cir.), cert. denied, 504 U.S. 990 (1992) (holding

curative instruction effective to prevent the prosecutor's

misconduct from rendering trial fundamentally unfair).

3.

Malbrough argues that the prosecutor committed error when he

introduced matters not in evidence before the jury in closing

argument. The prosecutor stated in closing argument that "this was

a continuing conspiracy, I mean continuing. Those ladies had been

working there twenty-five, twenty-seven years. This is not the

first time that these ladies have done this." Defense counsel

objected to the prosecutor's introducing matters not in evidence,

arguing that there was no evidence that this was not the first time

they had done this. 

The district court sustained the objection to the extent that

government's counsel was arguing facts not in evidence. Defense

counsel moved for a mistrial, which the district court denied. The

prosecution went on to argue its theory of a continuing conspiracy

based upon the evidence in the record which showed that this was

not an isolated occasion, because when the surprise audits were

held, all three ladies were caught short. 

Although it may have been error for the prosecution to suggest

that the conspiracy had been going on for the entire twenty-five
14

years that they had worked there, there was overwhelming evidence

that Malbrough was involved in a conspiracy to embezzle postal

funds and cover up the shortages with Taylor and Duplantier.

Malbrough has not shown that any of the above alleged errors

deprived her of a fair trial, individually or cumulatively. See

United States v. Tremelling, 43 F.3d 148, 153 (5th Cir.), cert.

denied, 115 S. Ct. 1990 (1995) (stating that because individual

claims of error had no merit, claim of cumulative error also

failed).

AFFIRMED.