UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

______________

91-8649

______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FELMON LAKEITH LAURY,

a/k/a FELMON KEITH ASHLEY,

a/k/a WALTER RAY NICHOLSON,

Defendant-Appellant.

__________________________________________________

Appeal from the United States District Court

For the Western District of Texas

__________________________________________________ (March 2, 1993)

Before GOLDBERG, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Def endant Felmon Lakeith Laury appeals his conviction for

robbery of a bank by force and violence and by intim idation, in

violation of 18 U.S.C. § 2113(a) (1988). Laury also challenges the

district court's calculation of his sentence. Finding no error, we

affirm.

I

On December 19, 1988, at approximately 12:15 p.m., an armed

man entered Planters National Bank in Rosebud, Texas. The robber

was wearing a pair of light-colored jeans, Puma tennis shoes, and

a dark bandanna across his face. From atop a teller's counter, the

robber demanded that the bank employees give him all of their1 Laury, who was not present during the execution of the search

warrant, called the FBI's office upon learning of the search, and denied robbing

the bank. Laury's uncontradicted testimony on direct examination was as follows:

A: I wanted to know what [the search] was about, and I called the

FBI station that same day and I asked them )) Well, I identified

myself and told them who I was, and they told me they were looking

for me for a bank robbery.

Q: Okay.

A: And I told them, "I'm not a bank robber." I told them, "I'm a

thief, I don't rob banks."

Q: Okay.

A: I don't know how to rob a bank.

Q: Okay.

A: So he stated to me, "Well, if you didn't do it, [Laury], you

know who did it." And I told him I don't, you know, and I left that

there.

Record on Appeal, vol. 5, at 308.

-2- money. After forcing the bank employees into the vault, the robber

left the bank with over $130,000, includ ing $300 in dimes. The

robber left a shoe impression on the countertop.

FBI agents received a tip from a confidential informant ("CI")

that, according to one of Laury's friends, Laury robbed a bank in

Rosebud, Texas in December 1988. In addition, the CI stated that

Laury had recently purchased a number of expensive items, even

though he was unemployed. The CI also stated that Laury was using

an alias and identified Laury's place of residence. Based on the

CI's information, FBI agents obtained a search warrant for Laury's

residence. 1 Executing the search warrant, FBI agents seized a pair

of light-colored jeans, a blue bandanna, a bag containing $189.60

in dimes, a pair of Puma tennis shoes, numerous purchase receipts,

and a photogr aph of Laury displaying large sums of money. A

special agent in the FBI laboratory compared the shoe print

impression left by the robber with the tennis shoes found in

Laury's apartment, and found that the two shared common-3-

characteristics. Laury was thereafter arrested. Immediately after

he received his Miranda warnings, Laury told the FBI agents that he

was the only adult male liv ing in his apartment and all of the

men 's clothing belonged to him. He also admitted that he made

numerous large cash expenditures between December 1988 and January

1989. He claimed he obtained his money from two jobs. In

addition, Laury stated that his g irlfriend, DeShannon Cooper

("Dinky"), who was on welfare, and Dinky's grandmothe r both gave

him some of the money. Laury also informed the FBI agents that he

had been in Calvert, Texas (near Rosebud) a few days before

Christmas. Laury denied robbing the bank.

Laury was subsequently indicted for robbery by force and

violence and by intimidation, in violation of 18 U.S.C. § 2113(a)

(1988). Before trial, Laury moved to suppress the evidence seized

from his apartment and the statements he made to FBI agents

following his arrest. The district court denied both motions. At

trial, Laury testified that he had obtained most of the money he

spent by robbing a drug dealer of $19,000. Furthermore, Laury and

three alibi witnesses testified that Laury was in Dallas, attending

his cousin's birthday party on the date of the robbery. Laury also

testified that one of his relatives owned the Puma tennis shoes.

Nevertheless, the jury found Laury guilty.

At sentencing, the district court arrived at a total offense

level of 26, and a criminal history category of VI. The district

court denied Laury's objection to a two-poin t increase in his

offense level for obst ruction of justice. The district court-4-

upwardly departed from the sentencing guideline range of 120-150

months because of Laury's recidivism and display of violence.

Laury was sentenced to 175 months imprisonment, followed by three

years of supervised release. In addition, Laury was ordered to pay

restitution of $130,068.00, as well as a $50 mandatory assessment.

II

Laury appeals his conviction and sentence, contending that:

(a) the district court erroneously submitted an aiding

and abetting instruction to the jury;

(b) the prosecution improperly suggested that he and his

witnesses should have come forward sooner with his alibi,

depriving him of a fair trial;

(c) the evidence was ins ufficient to sustain the jury

verdict;

(d) the prosecutor misstated the testimony of witnesses,

depriving him of a fair trial;

(e) the district court erred in adding two points to his

offense level for obstruction of justice;

(f) the district court abused its discretion in upwardly

departing from the guidelines;

(g) the district court erred in deny ing his motion to

suppress evidence seized from his residence; and

(h) the district court erred in denying his motion to

suppress statements he made to FBI agents after his

arrest.

III

A

Laury first alleges that the district court erred in

instructing the jury that, under 18 U.S.C. § 2 (1988), whoever aids

or abets the commission of an offense is punishable as the

principal. Laury claims that the jury convicted him as the2 "`[T]he rule is well-established

. . . that one who has been indicted

as a principal may be convicted on evidence showing that he merely aided and

abetted the commission of the offense.'" U nited States v. Walker, 621 F.2d 163,

166 (5th Cir. 1980) (quoting United States v. Bullock, 451 F.2 d 884, 888 (5th

Cir. 1971)), cert. denied, 450 U.S. 1000, 101 S. Ct. 1707, 68 L. Ed. 2d 202

(1981).

3 Laury alleges that the aiding and abetting instruction effectively

reduced the government's burden of proof. In W alker, we rejected L aury's

argument, stating that 18 U.S.C. § 2 simply "makes a defendant liable as a

principal when he consciously shares in any criminal act." W alker, 621 F.2d at

167.

-5- principal pursuant to the aiding and abetting instruction

, 2 even

though there was insufficient evidence that the robber was aided

and abetted. 3 Therefore, Laury argues that his conviction should

be reversed.

"The standard of review of a defendant's claim that a jury

instruction was error is `whether the court's charge, as a whole,

is a correct statement of the law and whether it clearly instructs

jurors as to the principles of law applicable to the factual issues

confronting them.'" U nited States v. Ojebode, 957 F.2d 1218, 1228

(5th Cir. 1992) (quoting United States v. Stacey, 896 F.2d 75, 77

(5th Cir. 1990)), cert. denied, 1993 U.S. LEXIS 1313 (Feb. 22,

1993). The court "`may not instruct the jury on a charge that is

not supported by the evidence.'" I d. (quoting United States v.

Ortega, 859 F .2d 327, 330 (5th Cir. 1988)). After reviewing the

record, we conclude that the aiding and abetting charge was

supported by the evidence. Laury testified that he did not rob

Planters National Bank. S ee Record on Appeal, vol. 5, at 319. The

ba nk vice-president testified that he felt that the bank robber

must have had an accomplice. S ee Record on Appeal, vol. 5, at 63-

64. The record shows that: (1) Laury expended large amounts of4 In addition to the aiding and abetting instruction, the district

court instructed the jury that they could find Laury guilty as the principal of

the robb ery if they believed beyond a reasonable doubt that: (1) Laury

"intentionally took money from the person or the presence of the person described

in the indictment;" (2) "the money was then in the possession of a federally

insured bank;" and (3) Laury "did so by means of force or violence or by means

of intimidation." Record on Appeal, vol. 2, at 286, 290.

-6- cash following the date of the bank robbery; (2) clothing (Puma

tennis shoes, a pair of light-colored jeans, and a blue bandanna)

was found in Laury's apartment that was similar to the clothing the

robber wore (Puma tennis shoes, a pair of grey or light-colored

jeans, and a blue or black bandanna); (3) Laury initially stated to

FBI agents that h e owned the Puma tennis shoes seized from his

apartment; (4) the shoeprint impression left by the robber

corresponded in size, design, mold characteristics, and wear

pattern with the Puma tennis shoes found in Laury's closet; and (5)

$189.60 in dimes were found in Laury's apartment (the robber took

$300.00 in dimes from the bank). Such evidence is sufficient to

support the submission of an aiding and abetting instruction.

Therefore, the district court did not err in submitting the aiding

and abetting instruction to the jury.

Even assuming the district court erred in submitting the

aiding and abetting instruction, the error was harmless. See 28

U.S.C. § 2111 (1988) (A judgment will not be reversed on account of

error that is harmless.). Absent the aiding and abetting

instruction, the jury still could have convicted Laury as the

principal based on the same evidence that suggested he aided and

abetted the robber. 4 The standard of review for judging the

sufficiency of circumstantial evidence is "whether [, viewing the-7-

evidence in the light most favorable to the governmen t,] a

reasonable trier of fact could find that the evidence establishes

guilt beyond a reasonable doubt." U nited States v. Salazar, 958

F.2d 1285, 1294 (5th Cir.), cert. denied,

___ U.S.

___, 113 S. Ct.

185, 121 L. Ed. 2d 129 (1992). Because a reasonable trier of fact

could find that the evidence establishes guilt beyond a reasonable

doubt on each element of the offense, the district court's error,

if any, in submitting the aiding and abetting instru ction was

harmless.

B

Laury claims that his rights to due process and against selfincri mination were violated because (1) the prosecution used his

silence to impeach him at trial by suggesting that he should have

come forward sooner with his alibi, and (2) the prosecution

suggested that La ury's alibi witnesses should have come forward

sooner with his alibi. At trial, Laury and his alibi witnesses

testified that Laury was at his cousin's birthday party in Dallas

on the date of the robbery. Neither Laury nor the witnesses told

authorities about the alibi prior to trial.

1

The alleged improper comments occurred during the prosecutor's

cross-examination of Laury and in his closing argument:

Q: When di d you call Mr. Farnsworth or Mr. Seale or

anybody in the FBI and say, "Wait a minute, you've got

the w rong guy, here's what really happened"? When did

you do that?

A: At no time.

Q: When did you call the FBI, Mr. Seale, Mr. Farnsworth

or the United States Attorney's office and say, "It-8-

couldn't have been me on December the 19th, 1988, because

I was at a birthday party"? When did you do that?

A: I called the FBI agent ))

Q: Did you call him and tell himthat you were

somewhere else on that day?

A: I just told him that I didn't commit no robbery.

Q: But you didn't tell him where you were, you didn't

tell him about your alibi?

A: No, sir, and they didn't ask.

Q: Waited until you get to court and that's when you're

going to have it all come out?

A: Well, I feel like this, sir ))

Q: I'm not asking you how you feel, sir, just answer my question.

A: Repeat your question, sir.

Q: You've been sit t ing where for the last several

months?

A: Here in jail.

Q: And you'd rather sit in jail than tell the FBI the

truth, is that right?

A: Well, actually since I've been sitting in jail,

there hasn't no FBI came to see me and ))

Q: You didn't call them and tell them you had this

alibi?

A: I told my attorney.

Record on Appeal, vol. 5, at 327. In his closing argument, the

prosecutor stated:

When you look at all of the evidence, when you take

everything together,

. . . and you couple all of that

together with the tennis shoes from the unbiased expert

and you listen to the people that wanted to give him an

alibi and couldn't remember who all was at the party,

what everybody else was wearing, and didn't even

remember )) remember when Miss Coo p er said that )) that

[Laury] came and got her in the middle of the party and

then left. None of the other witnesses said [Laury]

left, said he was there all the time. Yeah, they

couldn't remember that. They didn't tell the FBI he had

an alibi. He doesn't tell the FBI he has an alibi,

there's no talk.

Id. at 373.5 Although Laury answered the prosecutor's questioning by bringing up

his pre- Miranda phone call to the FBI, the prosecutor's initial questions were

much broader and not limited to the period prior to Laury's arrest. Furthermore,

the prosecutor referred to Laury "sitting in jail," which was a clear reference

to the post-arrest, post- Miranda time period.

-9- The prosecutor's interrogation of Laury 5 and his comment )) "[h]e

doesn't tell the FBI he has an alibi" )) were sufficiently broad that

they may be construed as commenting on Laury's failure to come

forward with his alibi (a) prior to arrest, (b) immediately after

his arrest and Miranda warnings, and (c) during the time period

prior to trial but following his arrest.

a

We first address whether any prosec utorial comment aimed at

Laury's pre-arrest silence was improper. There is no

constitutional violation where the prosecution uses pre-arrest

silence to impeach a criminal def endant because "no governmental

action [has] induced [the defendant] to remain silent." J enkins v.

Anderson, 447 U.S. 231, 240, 100 S. Ct. 2124, 2129-30, 65 L. Ed. 2d

86 (1980); see also United States v. Collins, 972 F.2d 1385, 1408

n.48, 1409 & n.50 (5th Cir. 1992), petitions for cert. filed, (U.S.

Dec. 4, 1992) (No. 92-681 3) and 61 U.S.L.W. 3446 (U.S. Dec. 7,

1992) (No. 92-964); United States v. Cardenas Alvarado, 8 06 F.2d

566, 572 (5th Cir. 1986). Therefore, any constitutional claim that

the prosecution improperly commented on Laury's pre-arrest silence

has no merit.

b

Insofar as the prosecutor's comments may be construed as

commenting on Laury's failure to come forward with his alibi6 The Court stated:

Silence in the wake of these [Miranda ] warnings may be nothing more

than the arrestee's exercise of these Miranda rights. Thus, every

post-arrest silence is insolubly ambiguous because of what the State

is required to advise the person arrested. Moreover, while it is

true that the Miranda warnings contain no express assurance that

silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would

be fundamentally unfair and a deprivation of due process to allow

the arrested person's silence to be used to impeach an explanation

subsequently offered at trial.

Doyle, 426 U.S. at 617-18, 96 S. Ct. at 2244-45 (citation omitted).

7 Following his arrest, one of the defendants made statements such as

"I don't know what you are talking about." D oyle, 426 U.S. at 614 n.5, 96 S. Ct.

at 2243 n.5. The Court treated the statements as being tantamount to silence.

See id. at 617-19, 96 S. Ct. at 2244-45.

-10- imm ediately following his arrest, we must determine whether the

prosecutor attempted to impea ch Laury with silence, which is not

permissible, or inconsistent statements, which is permissible.

In Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 610, 49 L. Ed. 2d 91

(1976)

, the C ourt held that the due process clause prohibits

impeachment of a defendant's exculpatory story by using the

defendant's immediate post-arrest, post- Miranda warnings silence

. 6

Id. at 619, 96 S. Ct. at 2245. D oyle involved two defendants who,

subsequent to their arrest and Miranda warnings, declined to make

a statement. 7 S ee id. at 611-14, 96 S. Ct. at 2241-43. At trial,

the defendants presented an alibi that they had not previously

disclosed to authorities. See id. at 613, 96 S. Ct. at 2242. On

cross-examination, the prosecutor questioned the defendants about

their failure to disclose their alibi to the police following their

arrest. S ee id. at 2243 & n.5, 96 S. Ct. at 613, 614 & n.5, 615

(The Court held that the cross-examination violated the due process

clause.). "The Court's conclusion in [ D oyle ] was based on the-11-

ambiguity inherent in a defendant's silence after he has been

arrested and informed of his Miranda rights. A defendant's silence

may indicate that he is exercising the rights of which he has just

been advised; it does not necessarily mean that a defendant does

not have an exculpatory story to tell." C ardenas, 806 F.2d at 572.

However, in Anderson v. Charles, 447 U.S. 404, 100 S. Ct.

2180, 65 L. E d. 2d 222 (1980), a defendant voluntarily gave a

statement to the police, after arrest and M iranda warnings, and

then told a different story at trial. I d. at 405-09, 100 S. Ct. at

2180-83. There the Court held that the prosecutor could properly

question the defendant about his prior inconsistent statem ents.

See i d. at 409, 100 S. Ct. at 2183. In A nderson, the defendant,

charged with murder, gave the pol ice a post-arrest statement

describing the location from which he had stolen the victim's car.

See id. at 405, 100 S. Ct. at 2180. At trial, however, the

defendant testified that he had stolen the car from a different

location. See id. On cross-examination, the prosecution asked the

defendant why he had not previously disclosed the latter version of

e vents, thereby suggesting that this latter version was a recent

fabrication. See id. at 405-06, 100 S. Ct. at 2181. The Court

held that Doyle did not prohibit the prosecutor's cross-examination

because "`[t]he questions were not designed t o draw meaning from

silence [as in D oyle ], but to elicit an explanation for a pri o r

inconsistent statement.'" Id . at 409, 100 S. Ct. at 2182.

Although "`virtually any description of a defendant's silence

following arrest and a Miranda warning will constitute a Doyle8 Laury told FBI agents: (1) he was the only man living in his

apartment; (2) he lived with his girlfriend, Dinky; (3) he owned the men's

clothing in the apartment; (3) when and where he purchased the items described

in purchase receipts; (4) he purchased the items with money that he obtained from

two jobs, Dinky, and Dinky's grandmother; (5) he was in Calvert, Texas a few days

before Christmas; and (6) he did not rob Planters National Bank.

The arresting officer, Agent Farnsworth, stated on direct examination that

Laury did not make any statements concerning his whereabouts on the date of the

robbery. S ee Record on Appeal, vol. 4, at 187-88 (In response to the

prosecutor's question, "Did [Laury] give you any kind of alibi or any excuse or

any place that he was on December the 19th of 1988," Agent Farnsworth stated, "No

sir. He just simply denied that he had robbed that bank.").

-12- violation,'" a prosecutor's comments must be evaluated in context.

United States v. Blankenship, 746 F.2d 233, 238 (5th Cir. 1984)

(quoting United States v. Shaw, 701 F.2d 367, 381-82 (5th Cir.

1983), cert. denied, 465 U.S. 1067, 104 S. Ct. 1419, 79 L. Ed. 2d

744 (1984)). We stated in Shaw that:

The alternative tests for determining whether a prosecutor's or witness's remarks constitute comment on

a defendant's silence are whether the "manifest intent"

was to comment on the defendant's sile nce or, alternatively, whether th e character of the remark was

such that the jury would "naturally and necessarily"

construe it as a commen t on the defendant's silence.

Both the inte nt of the prosecutor and the character of

the remar ks are determined by reviewing the context in

which they occur, and the burden of proving such intent

is on the defendant.

Id. at 381 (citations omitted) (footnotes omitted).

Although Laury made post-arrest statements to FBI agents, he

did not discu ss his whereabouts during the robbery. 8 Therefore,

nothing Laury told the FBI agents was inconsistent with his trial

testimony that he was at a party on the date of the bank robbery.

The prosecutor did not comment on what Laury told FBI agents, but

on what he did not tell them. Jurors would naturally and

necessarily view the prosecutor's line of questioning on crossexamination, as well as his statement in closing argument, as an9 We have not found any analogous cases where the prosecution attempted

to impeach the defendant with post-arrest and trial statem ents that were not

inconsistent. The relevant cases are either a clear D oyle case )) where the

defendant remained completely silent following arrest, but gave an exculpatory

story at trial, see, e.g., Shaw, 701 F.2d at 382, or a clear Anderson case )) where

the defendant gave a statemen t to the police, and then gave a clearly

incons istent story at trial. S ee, e.g., Brogdon v. Butler, 838 F.2d 776, 781

(5th Cir. 1988); Lofton, 620 F.2d at 76.

1 0 The government claims that the prosecutor's comments did not violate

Doyle

, because Laury did not remain completely silent following his arrest. We

do not belie ve, however, that the Supreme Court in D oyle intended that a

defendant remain c ompletely silent following arrest in order to rely on the

protection of the due process clause. In fact, the Court in D oyle did not treat

the defendant's post-arrest comments as a waiver of his right to remain silent.

Doyle, 426 U.S. at 614 n.5, 96 S. Ct. at 2243 n.5. That Laury did not remain

completely silent following his arrest did not give the prosecutor unbridled

freedom to impeach Laury by commenting on what he did n ot say followi ng his

arrest.

-13- attack on Laury's credibility. On cross-examination, the

p rosecutor suggests an implausible scenario ) ) that Laury would

prefer to languish in jail than tell the FBI about his alibi.

Clearly the prosecutor meant to suggest that Laury's alibi was not

disclosed prior to trial because it was not true, for the

prosecutor's comm ents could not have served any other purpose.

Therefore, the prosecutor's "manifes t intent" was to comment on

Laury's post-arrest silence with regard to his alibi. Only "[w]hen

a defendant chooses to contradict his post-arrest statements to the

police

. . . [does] it become[] p roper for the prosecutor to

challenge him with those [post-arrest] statements and with the fact

that he withheld his alibi from them." Lofton v. Wainwright, 620

F.2d 74, 78 (5th Cir. 1980). Because Laury's post-arrest and trial

statements were not inconsistent, we view the prosecutor's comments

as comments on Laury 's post-arrest silence, 9 and therefore in

violation of Doyle

. 10-14-

We normally review Doyle vio lations for harmless error.

Chapman v. United States, 547 F.2d 1240, 1248-49 (5th Cir.), cert.

denied, 431 U.S. 908, 97 S. Ct. 1705, 52 L. Ed. 2d 393 (1977); see

also United States v. Carter, 953 F.2d 1449 (5th Cir.), cert.

denied,

___ U.S. ___, 112 S. Ct. 2980, 119 L. Ed. 2d 598 (1992);

Cardenas Alvarado, 806 F.2d at 572-73. However, because Laury

failed to object to the prosecutor's comments at trial, we review

the prosecutor's comments for plain error. S ee Carter, 953 F.2d at

1463; Cardenas Alvarado, 806 F.2d at 573. "Plain error is error so

great that it cannot be cured at trial; the error `must be obvious,

substantial, and so basic and prejudicial that the resulting trial

lacks the fundamental elements of justice.'" U nited States v.

Davis, 831 F.2d 63, 66 (5th Cir. 1987) (q uoting U nited States v.

Birdsell, 775 F.2d 645, 653 (5th Cir. 1985), cert. denied, 476 U.S.

1119, 106 S. Ct. 1979, 90 L. Ed. 2d 662 (1986)). We will reverse

only to prevent a grave miscarriage of justice. Carter, 953 F.2d

at 1463; Cardenas Alvarado, 806 F.2d at 573.

Despite any improper prosecutorial comments on Laury's

immediate post-arrest silence, the record contained sufficient

evidence of L aury's guilt. S ee discussion supra part III.A.

Therefore, the prosecutor's error was not substantial or so

prejudicial that Laury's trial lacked the fundamental elements of

justice. The prosecutor's comments did not constitute plain error.

c

The prosecutor's comments were also aimed, in part, at Laury's

failure to come forward with his alibi while he was in jail prior1 1 In Carter, we distinguished between classic Doyle violations )) where

the prosecution comments on a defendant's silence immediately following arrest,

and non-classic Doyle violations )) where the prosecution comments on a defendant's

lat er post-arrest silence. S ee Carter, 953 F.2d at 1464. We stated that

"Supreme Court decisions have clarified that the Doyle protection derives

primarily from

the implicit assurance of the M iranda warnings and thus is

strongest in the context of immediate post- Miranda warning interrogation." I d.

Consequently, we held that the usual harmless-error standard used to determine

whether classic Doyle violations constitute reversible error, see Chapman, 547

F.2d at 1248-49, does not apply to non-classic Doyle violations. S ee Carter, 953

F.2d at 1464. Rather, non-classic D oyle violations are reviewed for plain error.

Id.

-15- to trial. See Record on Appeal, vol. 5, at 327 (Prosecutor asked

Laury on cross-examination: "And you'd rather sit in jail than

tell the FBI the truth

. . . ?"). The prosecutor's "manifest

intent" was to comment on Laury's silence, and thereby raise an

inference that his alibi was a recent fabrication. S ee Carter, 953

F.2d at 1464. ("The purpose behind the [prosecutor's comments] is

apparent: the prosecutor clearly hoped that [the defendant's

silence prior to trial, although he was languishing in jail for two

and a half months,] would raise the inference that [his exculpatory

story] was a recent fabrication."). However, D oyle did not decide

whether comments on a defendant's failure to give an alibi anytime

prior to trial is unconstitutional. S ee id., 426 U.S. at 616 n.6,

96 S. Ct. at 2244 n.6; Carter, 953 F.2d a t 1464. D oyle involved

impeachment by silence immediately followin g arrest, just after

Miranda rights were given and while the defendant was in the

custody of the arresting officers. Nevertheless, we held in C arter

that a Doyle violation does occur where the prosecution comments on

the defendant's failure to give an alibi prior to trial but

subsequent to the time of arrest. 11 See Carter, 953 F.2d at 1464;

but see United States ex rel. Smith v. Howe, 746 F.2d 386, 387-8812 Ethel Curry, Henry Lee Laury, and Annette Curry were Laury's alibi

witnesses. One alleged instance of prosecutorial misconduct arose out of the

prosecutor's cross-examination of Ethel Curry:

Q: [W]hen he was arrested and charged with this crime, did you go to the police and tell them that it couldn't have been him because

he was at a birthday party?

A: No.

Q: When was the first time that you told )) went an d told the

police or the FBI that it couldn't have been him because he was at

this birthday party?

A: I didn't. They came by my house.

Record on Appeal, vol. 4, at 199-200. Laury also claims that the prosector made

improper comments during his cross-examination of Henry Lee Laury:

Q: Mr. Laury, when did you go to the police and tell them that

[Laury] couldn't be guilty of this case, that he had an alibi?

A: I didn't never talk to no police.

Q: Well, do you know )) how long has he been arrested and charged

with this?

A: I don't know how long he's been arrested and charged, because

I wasn't here.

-16- (7th Cir. 1984) (citing Fletcher v. Weir, 455 U.S. 603, 102 S. Ct.

1309, 71 L. Ed. 2d 490 (1982)) (no Doyle violation where there was

no indication that defendant had received Miranda warnings prior to

post-arrest silence), cert. denied, 471 U.S. 1104, 105 S. Ct. 2335,

85 L. Ed. 2d 852 (1985). Therefore, the prosecutor's comments

satisfy this Circuit's test for a comment on the defe ndant's

silence, in violation of Doyle

. S ee Carter, 953 F.2d a t 1464.

However, for the reasons set forth in the preceding subsection, the

prosecutor's comments did not constitute plain error.

2

Laury seeks r elief based on other instances of alleged

prosecutorial miscondu ct. Laury claims that the prosecutor

violated his due process rights b y cross-examining his alibi

witnesses on their failure to come forward sooner with his alibi,

and by commenting on the alibi witnesses' silence in his closing

argument. 12 Because Laury did not object to the prosecutor'sQ: Well ))

A: I was in the state penitentiary myself.

Q: Well, we'll get to that in a m inute. But how long have you

known that he's been charged with this bank robbery?

A: I just )) I was in the penitentiary when I found out what he was in there for. They just told me he went to report and they locked

him up, that's all I know about this.

Q: Well , how many times have you talked to him since he's been

here in Waco, Texas?

A: I talked to him on )) talked to him and his girlfriend on the

phone.

Q: Well, how many times?

A: One or two times. I don't keep up with no phone calls.

Q: Well, over the last period of time ) ) how long have you known

that he's been charged with this crime?

A: I'm telling you I was in the penitentiary, came home and found

out he was in here.

Q: Well, when did you get out of the penitentiary?

A: I got out of the penitentiary in May.

Q: In May of when?

A: `91.

Q: And so you've known since May of `91 that he was charged with

it?

A: Yeah, I've known it since then.

Q: Okay. And when did you go to the FBI and tell them it

couldn't have been him because he was at this birthday party?

A: I haven't talked to a FBI or city official or county or

nobody.

Q: You didn't tell anybody.

A: I haven't talked to nobody.

Id. at 208-09. The prosecutor also asked Annette Curry about her failure to come

forward with Laury's alibi:

Q: When did you call the police and t ell them that it couldn't

have been [Laury] that did this robbery because he was with you?

A: Who called the police?

Q: Did you?

A: No.

Q: You hadn't ever called the police or the FBI?

A; No.

Q: Well, how long have y ou known he's been charged with this

crime?

A: When the lawyer )) I guess the DA or whoever he is )) came over to

the apartment to talk to me that day.

Id. at 218. In addition, the prosecutor in his closing argument commented on the

witnesses' silence: "[The alibi witnesses] didn't tell the FBI that [Laury] had

an alibi." Id. , vol. 5, at 373.

-17- comments at trial, "we will reverse only if the comment[s] rise to

the level of plain error, i.e., if the error is `obvious,

substantial, and so basic and prejudicial that the trial lacks the

fundamental elements of justice.' " Carter, 953 F.2d at 1460

(quoting United States v. Simpson, 901 F.2d 1223, 1227 (5th Cir.1 3 See United States v. Johns, 734 F.2d 657, 664-665 (11th Cir. 1984).

In Johns, the defendant argued that the prosecutor improperly commented on the

failure of his alibi witness to come forward sooner with his alibi. S ee id. at

663. The court stated: "That anyone, defendant o r witness, fails to present a

defendant's ali bi to law enforcement at the earliest time possible has some

logical negative r e flection on the credibility of the alibi defense." I d.

(emphasis added). In holding that the prosecutor's comment did not amount to

misconduct the court stated:

The [issue] is whether for some policy reasons we should not allow

the prosecutor to present otherwise admissible evidence to the jury.

For example, when a defendant does not tell police his alibi, we

prohibit such argument for Miranda reasons. S ee Doyle v. Ohio, 426

U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). W e fin d no

similar po licy that would prevent our allowing the prosecutor to

attack an alibi witness' credibility by pointing out that he did not

come forward until trial.

Id. at 664-65 (emphasis added).

-18- 1990)). It is permissible for a prosecutor to "take the wind out

o f the defendant's sails regarding [a] witness' credibility."

United States v. Handly, 591 F.2d 1125, 1128 n.1 (5th Cir. 1979).

The prosecutor's comments regarding the failure of the witnesses to

come forward sooner with Laury's alibi was a permissible attack on

their credibility. 13 Therefore, the prosecutor's comments did not

amount to error, plain or otherwise. Even if, arguendo, the

prosecutor's comments were improper, in light of all the evidence

presented at trial that indicated Laury's guilt

, see discussion

supra part III.A., we do not find that the prosecutor's comments

were so prejudicial that the trial lacked the fundamental elements

of justice.

C

Laury argues that the evidence was insufficient to sustain the

jury's verdict because the prosecution only presented

circumstantial eviden ce, and never produced a witness that could14 Laury also argues that the government failed to prove that the

offense occurred in the Western District of Texas. Because Laury never objected

to venue before the distric t court, this objection is waived. S ee Keene v.

International U. of Operating Eng., Local 624, AFL-CIO, 569 F.2d 1375, 1378 (5th

Cir. 1978) ("Unlike jurisdiction, venue can be waived.").

-19- ide ntify him as the robber. 1 4 The usual standard of review for

judging the sufficiency of ev idence in a circumstantial evidence

case "i s not whether the evidence excludes every reasonable

hypothesis of innocence or is who lly inconsistent with every

conclusion except that of guilt, but whether [, viewing the

evidence in the light most favo rable to the government,] a

reasonable trier of fact could find that the evidence establishes

guilt beyond a reasonable doubt." U nited States v. Salazar, 958

F.2d 1285, 1294 (5th Cir.), cert. denied,

___ U.S.

___, 113 S. Ct.

185, 121 L. Ed. 2d 129 (1992). However, because Laury failed to

move for either a directed verdict at the close of the government's

evidence or a judgment of acquittal following the trial, we review

his insufficiency of the evidence claim under a much stricter

standard. S ee United States v. Galvan, 949 F.2d 777, 782 (5th Cir.

1991); United States v. Ruiz, 860 F.2d 615, 617 ( 5th Cir. 1988).

"`We are limited to the determination of "whether there was a

manifest miscarriage of justice." Such a miscarriage would exist

only if the record is "devoid of evidence pointing to guilt," or

. . . "because the evidence on a key element of the offense was so

tenuous that a conviction would be shocking."'" Galvan, 949 F.2d

a t 783 (quoting R uiz, 860 F.2d at 617). "In making this

determination, the evidence, as with the regular standard for

review of insufficiency of evidence claims, must be considered `in-20-

the light most favorable to the government, giving the government

the benefit of all reasonable inferences and credibility choices.'"

Ruiz, 860 F.2d at 617 (quoting United States v. Hernandez-Palacios,

838 F.2d 1346, 1348 (5th Cir. 1988)), quoted in Galvan, 949 F.2d at

783.

After reviewing the record, we fi nd that it contains an

abundance of evidence pointing to guilt. S ee discussion supra part

III.A. Accordingly, no manifest miscarriage of justice has been

shown in finding Laury guilty of robbery.

D

Laury alleges that the prosecutor mischaracterized the

testimony of his witnesses, depr iving him of his constitutional

right to a fair trial. Because Laury failed to object to the

prosecutor's comments at trial, we review the statements for plain

error. S ee United States v. Davis, 831 F.2d 63, 66 (5th Cir.

1987).

Laury argues that the prosecu tor, in his closing argument,

improperly inferred that Dinky admitted that Laury owned the Puma

tennis shoes seized from his apartment. In closing argument, an

a ttorney may "assist the jury in analyzing, evaluating, and

applying the evidence ." U nited States v. Morris, 568 F.2d 396, 401

(5th Cir. 1978). Accordingly, "[a]n attorney may state to the jury

the inferences and conclusions he wishes them to draw" as long as

they are based on the evidence. D avis, 831 F.2d at 6 6; s ee also

Morris, 568 F.2d at 401 (During closing argument, an attorney has

a "right to state his contention as to the con clusions that the1 5 Dinky testified that Laury did not own or wear tennis shoes. S ee

Record on Appeal, vol. 5, at 273, 280-81. On cross-examination, however, Dinky

identified a government exhibit as a photograph of Laury in her house wearing

tennis shoes. S ee id. at 283. Dinky also identified another exhibit as a

photograph of tennis shoes in her hall closet. S ee id. at 284-85. The

prosecuto r asked Dinky whether Laury owned the shoes in the closet, and she

responded affirmatively. S ee id. During closing argument, the prosecutor

stated: Dinky says, `[Laury] doesn't even own tennis shoes, he doesn't wear

tennis shoes. I don't know anything about tennis shoes.' Well, she hadn't seen

the photographs until today. She looks at the photographs and says, `Oh, yeah,

those are tennis shoes. Oh, yeah, they're in the hall closet. Oh, yeah, those

are his shoes on his feet in the picture.'" Id. at 351.

-21- jury should draw from the evidence."). Although the jury could

have reasonably concluded fro m the prosecutor's summation of the

evidence that Dinky admitted that Laury owned the sho es, the

prosecutor did not tell the jury that they should draw that

conclusion. 15 The prosecutor merely restated Dinky's testimony to

support his argument that Laury owned the tennis shoes. Because

the prosecutor properly assisted the jury in evaluating Dinky's

testimony, we find no error.

Laury also claims that the prosecutor mis characterized the

testimony of his witnesses by stating that they testified that

Laury had been present at his cousin's party the entire time, even

thoug h Dinky testified that Laury left the party to pick her up.

See Record on Appeal, vol. 5, at 372-73 ("[R]emember when [Dinky]

said that )) that [Laury] came and got her in the middle of the party

and then left. None of the other witnesses said [Laury] left, said

he was there all the time."). Although the prosecutor was correct

that none of these witnesses testified that Laury had left the

party, he misstated these witnesses' te stimony, because no one16 The government claims that the prosecution did not mischaracterize

the witnesses' testimony, arguing that "[t]he prosecutor was attempting, by his

argument to highlight the inconsistency between [Dinky's testimony that Laury had

left the party to pick her up] and Henry Lee Laury, Jr.'s testimony that [Laury]

stayed at the party from `about a quarter to 11

. . . until about two or three.'"

Brief for United States at 20-21. We disagree because none of the witnesses,

including Henry Lee Laury, stated that Laury was at the party all the time. We

construe the prosecutor's statement that "[n]one of the other witnesses said

[Laury] left, said he was there all the time" to mean "[n]on e of the other

witnesses said [Laury] left, [they] said he was there all the time." The other

possible construction )) "[n]one of the other witnesses said [Laury] left, [none]

s aid he was there all the time [either] ) ) in the context of the prosecutor's

argument does not make sense.

17 Laury was sentenced under the guidelines in effect at the time the

offense was committed.

1 8 The probation officer made these findings in the presentence report,

and consequently, recommended that the district court adjust Laury's sentence for

obstruction of justice. Because the district court expressly adopted the factual

findings in the presentence report, s ee Record on Appeal, vol. 2, at 3 25, we

-22- testified that Laury was at the party the entire time. 1 6 Despite

the prosecutor's error, after reviewing the record, we find that

the record con tained sufficient evidence of Laury's guilt. S ee

discussion supra part III.A. Accordingly, we find that the

prosecutor's error was not so prejudicial that Laury's trial lacked

the fundamental elements of justice. Therefore, the prosecutor's

error did not amount to plain error.

E

Laury next conten ds that the district court erred in adding

two points to his base offense level for obstruction of justice. 17

See United States Sentencing Commission, Guidelines Manual, § 3C1.1

(West rev. ed. August, 1988). The district court found that Laury

obstructed justice when he (1) lied under oath as to the source of

the money he spent following the date of the bank robbery, and (2)

lied to the probation officer preparing the prese ntence report

about a prior arrest and conviction. 18treat the findings as those of the district court.

-23- Section 3C1.1 instructs the district court to enhance a

defendant's offense level by two points "[i]f the defendant

willfully impeded or obstructed, or attempted to impede or obstruct

the administration of justice during the investigation or

prosecution of the instant offense." The section is not designed

to punish a defendant for exercising a consti tutional right, and

"[a] defendant's denial of guilt is not a basis for application of

this provision." U.S.S.G. § 3C1.1, comment. (n.3). An enhancement

may be appropriate where a defendant "testif[ies] untruthfully or

suborn[s] untruthful testimony concerning a material fact." Id.,

comment. (n.1(c)). In applying section 3C1.1, the district court

should evaluate alleged untruthful testimony "in a light most

favora ble to the defendant." I d.

, comment. (n.2). We review a

district co urt's determination that a defendant has obstructed

justice under section 3C1.1 for clear error. U nited States v.

Bethley, 973 F.2d 396, 402 (5th Cir. 1992), cert. denied, 1993 U.S.

LEXIS 1483 (Feb. 22, 1993); United States v. Paden, 908 F.2d 1229,

1236 (5th Cir. 1990), cert. denied, ___ U.S. ___, 111 S. Ct. 710,

112 L. Ed. 2d 699 (1991).

The district court found that Laury obstructed justice by

testifying untruthfully as to the source of the money he spent )) in

excess of $26,000 in cash )) following the date of the bank robbery.

It is proper for the district court to enhance a defendant's

sentence for obstruction of justice where the defendant committed

perjury by giving false testimony at trial. See United States v.-24-

Dunnigan, 1993 U.S. LEXIS 1779, at *11-*17 (Feb. 23, 1993)

(upholding obstruction of justice enhancement where district court

disbelieved defendant's trial testimony that she was not involved

in a conspiracy); United States v. Goldfaden, 959 F.2d 1324, 1331

(5th Cir. 1992) (upholding obstruction of justice adjustment where

defendant gave perjurious testimony); United States v. VelasquezMercado, 872 F. 2d 632, 636 (5th Cir.) (upholding two-point

adjustment where district court found that defendant committed

perjury, because it disbelieved defendant's cla im at sentencing

that he did not have a leadership role in recruiting undocumented

aliens), cert. denied, 493 U.S. 866, 110 S. Ct. 187, 107 L. Ed. 2d

142 (1989). In D unnigan, the Supreme Court defined perjury as

follows: "A witness testifying under oath or affirmation [commits

perjury under section 3C1.1] if the witness gives false testimony

concerning a mate rial matter with the willful intent to provide

false testimony, rather than as a result of confusion, mistake or

faulty memory." I d., 1993 U.S. LEXIS at *14. The Supreme Court

also stated that if a defendant objects to an obstruction of

justice enhancement resulting from the defendant's trial testimony,

the district court must review the evidence and "make independent

findings necessary to e stablish a willful impediment to or

obstruction of justice, or an attempt to do the same, under the

perjury definition we have set out." I d. at 16. In making its

findings it is preferable for the district court to make a separate

and clear finding on each element of the alleged perjury. I d. It

is sufficient, however, if the district court "makes a finding of19 The Supreme Court held that the district court's finding of

obstruction of justice was sufficient where the district court stated:

The court finds that the defendant was un truthful at trial with

respect to material matters in this case. The defendant denied her

in v olvement when it is clear from the evidence in the case as the

jury found beyond a reasonable doubt that sh e was involved in the

conspiracy alleged in the indictment, and by virtue of her failure

to give truthful testimony on material matters that were designed to

substantially affect the outcome of the case, the court concludes

that the false testimony at trial warrants an upward adjustment by

two levels.

Dunnigan, 1993 U.S. LEXIS at *16-*17.

20 Laury argues that "[t]he [d]istrict court did not make any

independent fac tual finding that [he] lied in his trial testimony, but rather

relied completely and solely upon the [guilty] verdict." Brief for Laury at 24.

Laury's argument is meritless because the district court expressly adopted the

factual findings in the presentence report. S ee Record on Appea l, vol. 2, at

325.

-25- obstruction or impediment of justice that encompasses all of the

factual predicates for a finding of perjury." Id. at 16. 19

In his p ost-arrest statement, Laury claimed that he had

obtained the money from two jobs, and that both Dinky and her

grandmother had given him some of the money. S ee Record on Appeal,

vol. 4, at 185-86 (direct examination of Agent Farnsworth). Laury

told Agent Farnsworth that he had no other source of income. See

id. at 185, 188. At trial, however, Laury stated for the first

time that he had obtained most of the money by robbing a drug

dealer of $19,000. S ee id., vol. 5, at 292. In finding that Laury

committed perjury, and thereby obstructed justice, the dis trict

court stated: "Obviously if the jury's verdict means anything,

then Mr. Laury did commit perjury when he testified, and I believe

the jury's verdict means exactly what it found." Record on Appeal,

vol. 6, at 6 (transcript of sentencing proceeding). 20 In addition,

the court found that "[i]f the jury had been convinced that [Laury]21 Laury also argues that an obstruction of justice enhancement based

on perjury infringes on his constitutional right to testify. We disagree. The

Supreme Court in United States v. Dunnigan, 1993 U.S. LEXIS 1779, at *17-*18, *22

(Feb. 23, 1993), expressly held that an obstruction of justice enhancement based

on perjury does not interfere with a defendant's right to testify: "Upon a

proper determination that the accused has committed perjury at trial, an

enhancement of sentence is required by the Sentencing Guidelines. That

requirement is consistent with our precedents and is not in contravention of the

privilege of an accused to testify in [the accused's] own behalf." I d. at *22;

see also United States v. Collins, 972 F.2d 1385 (5th Cir.) (holding that

enhancement for obstruction of justice based on perjury does not infringe on a

defendan t's right to testify), p etitions for cert. filed, (U.S. Dec. 4, 1992)

(No. 92-6813) and 61 U.S.L.W. (U.S. Dec. 7, 1992) (No. 92-964); Goldfaden, 959

F.2d at 1331 ("Though the court may not penalize a def endant for denying his

guilt as an exercise of his constitutional rights, an enhancement based upon

perjury is permissible.")

-26- had obtained the money as he indicated, it may have affected the

determination of guilt. Statements made by the defendant were made

in an effort to obstruct or impede the administration of justice

during prosecution." Presentence Report at 5. The district

court's finding that Laury committed perjury was sufficient. See

Dunnigan, 1993 U.S. LEXIS at *17. Furthermore, because the record

supports the district court's finding that Laury committed perjury,

the district court did not clearly err in finding tha t Laury had

obstructed justice. 21

The district court also found that Laury obstructed justice by

lying to the probation officer preparing the presentence r eport

about a prior arrest and conviction. A defendant's offense level

may be en hanced where the defendant "furnish[es] material

falsehoods to a probation officer in the course of a presentence

report or other investigation for the court." U.S.S.G. § 3C1.1,

comment. (n.1(e)). During the presentence interview, the probation

officer asked Laury about a prior arrest and conviction arising out22 Laury's criminal history score of 20 points placed him in criminal

history category VI, the highest possib le category under the sentencing

guidelines. Based on Laury's criminal history category and offense level of 26,

the guidelines recommended a sentence of 120-150 months.

We note that section 4A 1 .3 of the guidelines was amended on November 1,

1992. S ee United States v. Lambert, No. 91-1856, 1993 WL 35719, at *6 (5th Cir.

Feb. 16, 1993) (en banc). "According to the amendment, [when] a district court

intends to depart above Category VI, it should still stay within the guidelines

by considering sentencing ranges for higher base offense levels. This amendment

emphasizes the Commission's concern for systematic, uniform sent ences even in

cases where a departure is appropriate." Id.

-27- of an incident in Houston. Laury denied any involvement. Laury

stated that it was his uncle who was involved in the incident, and

that the uncle used Laury's name when arrested. Subsequently, the

probation officer obtained a photograph of the pers on arrested,

which clearly revealed that it was Laury. Because the record

supports the district court's finding that Laury lied to the

probation officer preparing the presentence report, the district

court did not err in finding that Laury obstructed ju stice. S ee

Velasquez-Mercado, 872 F.2d at 636 (upholding obstruc tion of

justice adjustment where district court found that defendant had

lied to probation officer preparing presentence report).

F

Laur y next claims that the district court erred in upwardly

departing from the sentencing guidelines. The district court

sentenced Laury t o 175 months imprisonment, 25 months above the

sentencing guidelines maximum. 22 A departure from the sentencing

guidelines wi ll be upheld if (1) the district court provided

acceptable reasons for the departure, and (2) the extent of the

departure was reasonable. United States v. Fields, 923 F.2d 358,-28-

361 (5th Cir.), cert. denied,

___ U.S.

___, 111 S. Ct. 2066, 114 L.

Ed. 2d 470 (1991).

Laury a rgues that the district court's upward departure was

unreasonable because it was based on a factor (Laur y's criminal

history) already taken into account by the guidelines. The

presentence report stated that Laury had been convicted seven times

for offenses involving theft and burglary in a span of six years.

The presentence report also showed that Laury repeatedly violated

parole and probation. Adopting the factual findings of the

presentence report, the district court stated that it was upwardly

departing because of Laury's "constant recidivism and displaying of

viole nt behavior." Record on Appeal, vol. 2, at 325. Thus, the

district court upwardly departed because Laury's criminal history

category did not adequately reflect the ser iousness of his past

criminal conduct. We review this finding of fact for clear error.

See United States v. Roberson, 872 F.2d 597, 607 (5th Cir. 1989),

cert. denied, 493 U.S. 861, 110 S. Ct . 175, 107 L. Ed. 2d 131

(1989). We review the district court's decision to depart upward

from the guidelines for abuse of discretion. See R oberson, 872

F.2d at 601.

That a defendant's criminal history category does not

adequately reflect the seriousness of a defendant's past criminal

conduct "is a factor not taken into account by the Guidelines and

is a permissible justification for upward departure." U nited

States v. Geiger, 891 F.2d 512, 514 (5th Cir. 1989) (emphasis

added) (upholding upward departure where defendant's criminal-29-

history category did not adequately reflect seriousness of

defendant's criminal history), cert. denied, 494 U.S. 1087, 110 S.

Ct. 1825, 108 L. Ed. 2d 954 (1990), o verruled on other grounds

United States v. Lambert, No. 91-1856 , 1993 WL 35719, at *1 (5th

Cir. Feb 16, 1993) (en banc); s ee also Roberson, 872 F.2d at 606

(same). In fact, the Commission itself stated that "[a] departure

. . . is warranted when the criminal history category significantly

under-represents the seriousness of the defendant's criminal

history or the likelihood that the defendant will commit further

crimes." U.S.S.G. § 4A1.3, p.s.. Furthermore, the Commission

stated that it "contemplates that there may, on occasion, be a case

of egregious, serious criminal record in which even the guideline

range for a category VI criminal history is not adequate to reflect

the seriousness of the defendant's criminal history." Id.

Given Laury's past criminal convictions, the district court

did not clearly err in finding th at Laury's criminal history

category did not adequately reflect the seriousness of his criminal

history. Furthermore, because Laury's criminal history points (20)

were well abov e the minimum required (13) to place him in a

category of VI, and the district court gave adequate reasons for

its upward departure, t he district court did not abuse its

discretion in upwardly departing from the sentencing guidelines.

Laury's challenge to the ext ent of the district court's

departure is equally unavailing. Because the departure was within

the statutory limit, see 18 U.S.C. § 2113(a) (1988), we will review

it only for a "`gross abuse of di scretion.'" U nited States v.-30-

Hud dleston, 929 F.2d 1030, 1031 (5th Cir. 1991) (quoting United

States v. Juarez-Ortega, 866 F.2d 747, 748 (5th Cir. 1989)). "If

the district finds that it is necessary to go beyond the

guidelines, the court must give adequate reasons why the guideline

calculation i s inadequate and why the sentence it imposes is

appropriate." L ambert, 1993 WL at *5. In light of the district

court's articulated reasons for the departure ) ) Laury's constant

recidivism and display of violence )) we do not view a 25-month

upward departure to a 175-month sentence for a crime with a maximum

statutor y sentence of 240 months as unreasonable. S ee, e.g.,

United States v. Fields, 923 F.2d 358, 361 (5th Cir.), cert.

denied,

___ U.S.

___, 111 S. Ct. 2066, 114 L. Ed. 2d 470 (1991)

(upholding departure of 24 months to a 204-month sentence for a

crime with a minimum statutory sentence of 180 months and maximum

of life).

G

Laury contends that the district court erred in de nying his

motion to suppress the evidence obtained from the search of his

apartment. Laury contends that the affidavit in support of the

search warrant did not establish probable cause because: (a) the

affidavit was based on conclusory sta tements and unreliable

hearsay; (b) the affidavit did no t establish a nexus between

Laury's home and the instrumentalities and evidence of the robbery;

and (c) the information provided by affiant Agent Garcia and the CI

was stale. We disagree.2 3 A bare bones affidavit contains "wholly conclusory statements, which

lack the facts and circumstances from which a magistrate can independently

determine probable cause." Satterwhite, 980 F.2d at 321.

-31- I n reviewing a district court's denial of a motion to

suppress, we engage in a two-part inquiry: (1) whether the goodfaith exception to the exclusionary rule applies, see United States

v. Leon, 468 U.S. 897, 104 S. Ct. 340 5, 82 L. Ed. 2d 677 (1984);

and (2) wheth er the warrant was supported by probable cause.

United States v. Satterwhite, 980 F.2d at 317, 320 (5th Cir. 1992);

see also United States v. Webster, 960 F.2d 1301, 1307 (5th Cir.),

cert. denied,

___ U.S.

___, 113 S. Ct. 355, 121 L. E d. 2d 269

(1992). We need not, however, address the probable cause issue if

the good-faith exception applies, and the case does not involve a

"`novel question of law whose resolution is necessary to guide

future action by law enforcement officers and magistr ates.'"

Illinois v. Gates, 462 U.S. 213, 264, 103 S. Ct. 2317, 2346, 76 L.

Ed. 2d 527 (1983) (White, J., concurring); Satterwhite, 980 F.2d at

320 (quoting Gates ). This case does not present a novel question

of law. Therefore, we address the good-faith issue first.

The Supreme Court in Leon held that evidence obta ined by

officers in obj e ctively reasonable good-faith reliance upon a

search warrant is admissible, even though the warrant was

unsupported by probable cause. See Leon, 468 U.S. at 922-23, 104

S. Ct. at 3420; Satterwhite, 980 F.2d at 1640. Where a warrant is

supported by more than a bare bones affidavit, 23 an officer may rely

in good faith on the warrant's validity. I d. ; Pigrum, 922 F.2d at

252. We review de novo the reasonableness of an officer's reliance24 Laury argues that the affidavit did not establish probable cause

because it "include[d] information that the Defendant was not the one who

committed the instant offense, namely that he did not match the description given

by the eyewitnesses to the crime." S ee Brief for Laury at 32. Eyewitnesses to

the robbery described the suspect "as being a black male in his late 20's,

approximately 5'10" to 6' tall, approximately 150 pounds, slim build, short black

hair, with large eyes." Record on Appeal, vol. 1, at 158. The affidavit states

that Laury is "a black male, 25 years old, 5'8" tall, weighs 140 pounds, has a

slender build, short black hair and large eyes." Id. at 157. Laury's attempt

to discredit the affidavit by pointing out discrepancies between the two

descriptions is frivolou s because the eyewitness description was only an

approximation. S ee Greer v. Turner, 639 F.2d 229, 230 n.1, 232 & n.4 (5th Cir.

1981) (where defendant pointed out that eyewitnesses described robber as about

6'2" and he was only 5'11", defendant's attempt to discredit t he description

provided by eyewitnesses was frivolous because the description was only an approximation).

-32- upon a warrant issued by a magistrate. S atterwhite, 980 F.2d at

321 (citing United States v. Wylie, 919 F.2d 969, 974 (5th Cir.

1990)).

Laury first claims that the warrant w as not supported by

probable cause because it was based solely upon a bare bones

affidavit. We disagree. The affidavit shows that eyewitnesses to

the robbery provided a description of the robber which was similar

to Laury's. 24 See Record on Appeal, vol. 1, at 157-58. The

affidavit also states:

A confidential source who has provided reliable

information in the past to local law enforcement officers

and whose information has culminated in three arrests and

three convictions furnished the following information to

which he had access:

1. A personal frie nd of Felmon Lakeith Laury stated

that Laury robbed a bank in Rosebud, Texas during

December, 1988.

2. Felmon Lakeith Laury is unemployed and has been for

some time. However, in late December, 1988, Laury

purchased a 1982, two-door, white Lincoln Continental

with a tan "convertible look" vinyl top. He also

purchased a yellow Chevrolet Z.28 Camaro for his

girlfriend. Around Christmas, 1988, Laury went to

Houston with another black male and purchased expensive

clothes, and had a $1,500 stereo installed in his car.-33-

Laury also gave some of his friends $100 each as a Christmas gift.

3. Felmon Lakeith Laury is currently using an alias of

Walter Ray Nicholson.

4. Fe lmon Lakeith Laury was raised in the Calvert,

Texas area near Rosebud, Texas and frequently travels to

that area.

5. Felmon Lakeith Laury currently lives with his

girlfriend DeShannon "Dinky" Cooper at the Estell Village

Apartments, 5938 Highland Village Drive, Apartment #D,

Da llas, Texas. Laury has lived there since December,

1988.

Id. at 157. The CI's statements provided the magistrate with ample

f acts, not conclusions, for finding that there was a fair

probability that Laury robbed a bank.

Laury further alleges t he government is attempting to put

flesh on an otherwise bare bones affidavit by the use of unreliable

hearsay. Laury avers that Agent Garcia and the CI had no personal

k nowledge of the robbery, and that the CI did not rev eal the

underlying facts and circumstances of how he obtained the

information.

An affidavit may rely on hearsay )) information not within the

personal knowledge of the affiant, such as an informant's

statement )) as long as the affidavit presents a "`substantial basis

for crediting the hearsay.'" G ates, 462 U.S. at 242, 103 S. Ct. at

2334 (quoting Jones v. United States, 362 U.S. 257, 269, 80 S. Ct.

725, 735, 4 L . Ed. 2d 697 (1960)); s ee also Draper v. United

S tates, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959);

Satterwhite, 980 F.2d at 321. In determining whether an

informant's report is credible, we examine the informant's veracity-34-

and basis of knowledge. S ee Gates, 462 U.S. at 230-33, 103 S. Ct.

at 2328-29. These factors are relevant considerations under the

"totality of t he circumstances" test for valuing an informant's

report. S ee id. "[A] deficiency in one may be compensated for, in

determining the overall reliability of a tip, by a strong showing

as to the other, or by some other indicia of reliability." I d. at

232, 103 S. Ct. at 2329.

The affidavit adequately demonstrated the CI's veracity. The

veracity of an informant is often assessed from the accuracy of

previous tips. S ee United States v. Barbin, 743 F.2d 256, 259

(1984). Agent Garcia stated that the CI in the past had furnished

reliable information to local law enforcement officers leading to

three arrests and three convictions. These statements sufficiently

established the CI's veracity. S ee United States v. McKnight, 953

F.2d 898, 905 (5th Cir.), cert. denied,

___ U.S. ___, 112 S. Ct.

2975, 119 L. Ed. 2d 594 (1992) (assertion that informa nt in the

past had g iven true and reliable information sufficiently

established veracity); Barbin, 743 F.2d at 256 (verac ity was

established where informant in the past had given information

resulting in several arrests and convictions); U nited States v.

Almas, 507 F.2d 65, 66 n.1 (5th Cir. 1975) (veracity established

where informant had provided information lead ing to four arrests

and four convictions).

The affidavit also sufficiently demonstrated the CI's basis of

knowledge. "An informant's basis of knowledge can . . . be

established by a particularly detailed tip." U nited States v.-35-

Jackson, 818 F.2d 345, 349 (5th Cir. 1987). The CI knew where

Laury lived, the name of Laury's girlfriend, Laury's use of an

alias, and where Laury was raised. Furthermore, the CI knew with

specificity expenditures that Laury made in December 1988. In

addition, the affidavit stated that an FBI agent had verified the

residence of Laury's girlfriend. While the source of the CI's

information was not disclosed, nor how the information was

obtained, the detailed facts given were of such a nature, in light

of the surrounding circum stances, that the magistrate could have

reasonably concluded that the CI obtained the information in a

reliable manner. Therefore, the CI's tip, given his past accuracy

and the detailed information he furnished, provided the magistrate

with a substantial basis for crediting the CI's statements.

Laury also claims that the affidavit was based on unreliable

double hearsay because some of the CI's statements were based on

information given to the CI by an unidentified persona l friend.

See Record on Appeal, vol. 1, at 157. Laury argues that the

affidavit failed to establish the personal friend's veracity and

basis of knowledge. Although it is true that the affidavit did not

establish the personal friend's veracity, we are not precluded from

determining that a substantia l basis existed for crediting the

personal friend's statement. S ee Gates, 462 U.S. at 232, 103 S.

Ct. at 2329 ("A deficiency in [either veracity or basis of

knowledge] may be compensated for, in determining the overall

reliability of a tip, by a strong showing as to the other, or by

some other indicia of reliability."); see also Satterwhite, 980-36-

F.2d at 322 ("Where an informant's report is not based on personal

knowledge, but rather on the information of a second individual, we

must determine whether a substantial basis exists for crediting the

second individual's information." (citing S pinelli, 393 U.S. at

410, 89 S. Ct. at 584, 593 (White, J., concurring)).

First, the personal friend did more than merely state that

Laury had robbed a bank. The personal friend correctly identified

Rosebud as the place of the robbery and December 1988 as the month

and year the robbery took place. This is even more significant

because both the CI and Laury lived in Dallas: it is unlikely that

the CI would know about, and implicate Laury in, a bank robbery in

the distant town of Rosebud. Second, the personal friend's

sta tements were corroborated by the CI's statements. "`It is

enough

. . . that [ c]orroboration through other sources of

information reduced the chances of a reckless or prevaricating

tale,' thus providing a `substant ial basis for crediting the

hearsay.'" Id. at 322-23 (quoting Gates, 462 U.S. at 244-45, 103

S. Ct. at 2335). The CI stated that Laury was raised near Rosebud

and frequently traveled to that area. The CI's statement

corroborates the personal friend's claim that Laury robbed a bank

by connec ting Laury to the area of the bank robbery. Therefore,

the affidavit provided the magistrate with a substantial basis for

crediting the personal friend's statement.

Laury further alleges that the affidavit was totally lacking

in indicia of probable cause because it did not establish a nexus

between Laury's home and the instrumentalities and evidence of the2 5 The government sought to obtain two basic types of items from Laury's

residence: (1) instrumentalities of the crime (tennis shoes, loot bag, jacket,

bandanna, gloves, revolver, jeans); and (2) evidence of the crime (coin bag

containing dimes, money straps, wooden money dividers, currency). S ee Record on

Appeal, vol. 1, at 153.

-37- robbery. The affidavit must contain facts which "establish a nexus

between the house to be searched and the evidence sought." U nited

States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982). This nexus

"may be established through

. . . normal inferences as to where the

articles sought would be located." Id. "`For instance, evidence

that a defendant has stolen materia l which one would normally

expect him to hid e at his residence will support a search of his

residence.'" I d. (quoting United States v. Maestas, 546 F.2d 1177,

1180 (5th Cir. 1977)).

The instrumentalities and evidence of the crime were not found

at the s cene of the crime. 2 5 Furthermore, Agent Garcia stated in

the affidavit that, based on his training, experien ce, and

participation in the investigation of over 200 bank robberies,

"[i]ndividuals who commit bank robberies tend to keep evidence and

instrumentalities of their robberies in their personal possession,

as well as their homes." Record on Appeal, vo l

. 1, at 160.

Therefore, the affidavit furnished th e magistrate with enough

information to conclude that there was a nexus between Laury's home

and the instrumentalities and evidence of the robbery. S ee United

States v. Pace, 955 F.2d 270, 277 (5th Cir. 1992) (Wh ere agent

stated in affidavit that individuals who cultivate ma rijuana

routinely conceal evidence of the crime in their homes, court held:-38-

"The expectation of finding evidence of the crime at the suspect's

home, given that such evidenc e was not found at the scene of the

i llegal activity, was a reasonable inference which supported the

magistrate's determination of probable cause to search the

residence."); see also United States v. Thomas, 973 F.2d 1152, 1157

(5th Cir. 1992) ("Since [the] criminal instruments were not found

at the scene of Thomas's business, the expectation of finding the

[criminal instruments] at Thomas's home was a reasonable inference

supporting a determination of probable cause.").

Laury also contends that the information supporting the search

warrant was stale. "[T]he amount of delay which will make

information stale depends upon the particular facts of each case,

including the nature of the criminal activity and the type of

evidence sought." F reeman, 685 F.2d at 951. "`A mechanical count

of days is of little assistance in [the] determination.'" I d.

(quoting United States v. Hyde, 574 F.2d 856, 865 (5th Cir. 1978)).

The FBI agent stated in his affidavit that individuals who commit

bank robberies tend to keep instrumentalities and evidence of the

offense in their homes and that "investigations [that he has]

conducted have revealed that often th is evidence and

instrumentalities of these crimes are kept for long periods of

time, up to and including a period of several years." Record on

Appeal, vol. 1, a t 160. Also, less than two months elapsed from

the date of the robbery to the issuance of the warrant. Therefore,

it was reaso nable for the magistrate to conclude that the

information forming the basis of the warrant was not stale. See-39-

United States v. Barfield, 507 F.2d 53, 57-58 (5th Cir.), cert.

d enied, 421 U.S. 950, 95 S. Ct. 1684, 44 L. Ed. 2d 105 (1975)

(upholding search warrant issued forty days after information as to

the location of stolen coins and burglary tools was received by the

government).

H

Lastly, Laury argues that the district court erred in denying

his motion to suppress incrimin ating statements made after his

arrest because he did not voluntarily waive his Miranda rights.

After holding a hearing on Laury's motion to suppress, the district

court held that Laury made a voluntary and intelligent waiver of

his r ights after receiving M iranda warnings. "`[I]n reviewing a

trial court's ruling on a motion to suppress based on live

testimony at a suppression hearing, the trial court's factual

findings must be accepted unless clearly erroneous, or influenced

by an incorrect view of the law

. . . .'" U nited States v. Ibarra,

965 F.2d 1354, 1356 (5th Cir. 1992) (en banc) (equally divided

court) (quoting United States v. Muniz- Melchor, 894 F.2d 1430,

1433-34 (5th Cir.), cert. denied, 495 U.S. 923, 110 S. Ct. 1957,

109 L. Ed. 2d 319 (1990)); see also United States v. Cagle, 849

F.2d 924, 924 n.1 (5th Cir. 1988) (citing United States v.

Maldonado, 735 F.2d 809, 814 (5th Cir. 1984)). Furthermore, the

evidence must be viewed in the light most favorable to the party

that prevailed below. I d

. (quoting Muniz-Melchor, 894 F.2d at

1433-34); Cagle, 849 F.2d at 924 n.1 (citing Maldonado, 735 F.2d at

814). Defendants may waive their M iranda rights provided that they2 6 At the bottom of the advice of rights form, there is a notation that

Laury "[r]efused to sign [the waiver of rights], but agree[d] [to] talk to

[a]gents." Id. at 192.

-40- waive their rights voluntarily, knowingly, and intelligently.

United States v. McClure, 786 F.2d 1286, 1288 (5th Cir. 1986). In

d etermining whether defendants have validly waived their M iranda

rights, the court must take into account the "totality of the

circumstances surrounding the interrogation." I d. at 1289 (quoting

Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410

(1986)). At the hearing, FBI agents testified that they had

properly a dvised Laury of his constitutional rights and that he

knowingly and voluntarily waiv ed these rights. S ee Record on

Appeal, vol. 3, at 5-11. The FBI agents stated that Laury was

advised o f his constitutional rights when he was initially

arrested. The agents also testified that later, at the police

station, they again informed Laury of his rights, and had him read

out loud fr om a written advice of rights form. At that point,

testified an agen t, Laury indicated that he had no reservations

about talking to the agents. 26 S ee Hearing on Pre-Trial Motions at

7. Agents also stated that Laury answered affirmatively after

being asked multiple times whether he had been informed of his

rights. In his brief in support of his motion to suppress, Laury

alleged in conclusory fashion that his statements were coerced, but

did not point to any supporting evidence. Furthermore, nothing in

the record suggests that Laury's statements were compelled.

Therefore, the district court's did not clearly err in finding that

Laury made a voluntary and intelligent waiver of his Miranda-41-

rights. Consequently, the district court did not err in denying

Laury's motion to suppress.

IV

For the foregoing reasons, we AFFIRM

.