1 District Judge of the Eastern District of Texas, sitting by

designation. 

### REVISED

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-20350

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VERSUS

JOSHUA MAZIQUE BURTON; QUINTON B. CARR

Defendants - Appellants.

Appeals from the United States District Court

For the Southern District of Texas

October 17, 1997

Before DUHÉ and BARKSDALE, Circuit Judges, and COBB, District

Judge. 1

JOHN M. DUHÉ, JR., Circuit Judge:

Appellants Joshua Burton and Quinton Carr were convicted and

sentenced for conspiracy to commit robbery, in violation of 18

U.S.C. § 371 (“conspiracy”), and for attempted robbery by force,

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

2 (“bank robbery”). On appeal, Appellants contend the Government’s

evidence was insufficient to convict them of either offense and

that the district court erred in adding a six-level increase to2

their offense levels for “otherwise using a firearm.” We affirm.

BACKGROUND

On December 21, 1994, two armed men attempted to rob Bank One

in Missouri City, Texas at around 2:30 p.m. The men were dressed

in grey sweat suits and wore black masks. They pointed guns at the

bank employees and threatened to kill the employees if they did not

cooperate. After unsuccessfully attempting to enter the bank

vault, the men abandoned their robbery attempt. Before leaving,

the robbers threatened to blow up the bank and left two small

packages they removed from a black duffel bag. The packages were

actually shoe boxes containing road flares, wires and an alarm

clock and could not be detonated. The only description of the

robbers the bank employees could provide was that the skin around

their eyes not covered by the masks revealed the men were AfricanAmerican.

A witness using the ATM outside the bank saw two men in grey

sweat suits run out of the bank carrying a black duffel bag, enter

a parked blue car, and drive away, apparently driven by a third

man. Policemen soon arrived and found the car abandoned, with the

motor running, at a nearby car wash. The car was later determined

to belong to Quinton Carr (“Carr”). Around midnight on December

22, the morning after the robbery attempt, Carr called the police

and reported the car stolen.

The Government alleged that Joshua Burton (“Joshua”) and his

cousin, Wilton Burton (“W ilton”), actually entered the bank, and

that Carr (Joshua’s cousin and Wilton’s brother) allowed his car to3

be used for the getaway and also picked up Joshua and Wilton after

the robbery. Wilton gave a statement to police apparently

i mplicating Joshua and Quinton in the robbery, but recanted that

state ment at trial, claiming he had confessed only because

policemen were beating him. After a trial in which the Government

relied largely on circumstantial evidence, Appellants were

convicted on both counts.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

In reviewing the sufficiency of the evidence, we view the

evidence and all inferences to be drawn from it in the light most

favorable to the verdict to determine if a rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt. United States v. Broussard , 80 F.3d 1025, 1030

(5th Cir.), cert. denied

, 117 S.Ct. 264 (1996). “The evidence need

not exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, and the

jury is free to choose among reasonable constructions of the

evidence.” United States v. Bermea , 30 F.3d 1539, 1551 (5th Cir.

1994). The standard of review is the same regardless whether the

evidence is direct or circumstantial. United States v. Cardenas

,

9 F.3d 1139, 1156 (5th Cir. 1993).

To establish a conspiracy under 18 U.S.C. § 371, the

Government must prove (1) an agreement between two or more persons,

(2) to commit a crime, and (3) an overt act committed by one of the

conspirators in furtherance of the agreement. United States v.4

Gray

, 96 F.3d 769, 772-73 (5th Cir. 1996), cert. denied

, 117 S.Ct.

1275 (1997). The conspiracy need not be proved by direct evidence,

but agreement may be inferred from circumstantial evidence, such as

concert of action. U nited States v. Schmick

, 904 F .2d 936, 941

(5th Cir. 1990). “When the [G]overnment attempts to prove the

existence of a conspiracy by circumstantial evidence, each link in

the inferential chain must be clearly proven.” U nited States v.

Galvan

, 693 F.2d 417, 419 (5th Cir. 1982). Proof of “mere

association” with persons involved in criminal activity is

insufficient, by itse lf, to establish participation in a

conspiracy. I d

. at 420. Likewise, familial relationships alone

will not support a conspiracy conviction; “[i]nferences drawn from

familial relationships or mere knowing pr esence, however, may be

combined with other circumstantial evidence to support a conspiracy

conviction.” B roussard

, 80 F.3d at 1031, citing U nited States v.

Williams-Hendricks , 805 F.2d 496, 503 (5th Cir. 1986).

To convict of bank robbery under 18 U.S.C. § 2113(a), the

Go vernment must prove (1) an individual or individuals (2) used

force and violence or intimidation (3) to take or attempt to take

(4) from the person or presence of another (5) money, property or

anything of value, (6) belonging to or in the care, custody,

control, management, or possession (7) of a bank, credit union, or

savings and loan association. U nited States v. McCarty

, 36 F.3d

1349, 1357 (5th Cir. 1994).

A person who aids or abets the commission of a crime is

punishable as a principal. 18 U.S.C. § 2. To prove aiding and2 In its br i ef, the Government recites at length facts

allegedly from Wilton Burton’s statement to investigating officers.

We cannot understand, however, how the Government hopes to rely on

this “evidence” as supporting Joshua Burton’s convictions: Wilton

Burton’s statement to the officers is simply not of record. We

also note that the Assistant United States Attorney in this case improperly referred to the substance of Wilton’s statement in his

closing argument and even invited the jury to consider “parts of

what he said happened that day and recanted.” Such comments were

improper, but, as Appellants did not raise them as error on appeal,

we also do not address them.

5 abetting, the Government must show that the defendant (1)

associated with the criminal venture; (2) participated in the

venture; and (3) sought by action to make the venture succeed.

United States v. Salazar , 66 F.3d 723, 729 (5th Cir. 1995).

A. Joshua Burton

1. Testimony of Wilton Burton

Wilton Burton m ade a videotaped statement to the police in

which he apparently implicated the Appellants in the planning and

commission of the bank robbery. He testified for the Government

under a grant of both state and f ederal immunity. At trial,

however, Wilton recanted his earl ier statement, claiming that he

had made it only because the police were beating and kicking him.

The court allowed a portion of his videotaped statement to be

played before the jury, but only for the purpose of impeachment, to

demonstrate Wilton’s demeanor during the taping. The substance of

most of Wilton’s statement is not of record; the Government may

thus not rely on it as evidence of Joshua Burton’s guilt. 2 The

Government did try, however, to elicit from Wilton on direct

examination what he told the police.

At trial, Wilton categorically denied any involvement in or3 The Government later established that Wilton Burton’s

fingerprint was found on one of the fake bomb shoeboxes recovered

from the scene of the robbery.

4 Craig Burton is yet another relative of Appellants and was

indicted for the same crimes. At the close of the Government’s

case, however, the court granted Craig Burton’s motion for judgment

of acquittal.

6 knowledge of the attempted robber y. 3 He did admit on direct

examination, however, to having made certain admissions to agents

during questioning:

Q: You told [F.B.I. agent Johnson] you were one of the

men that walked into the bank?

A: Yes.

* * *

Q: You said Joshua [Burton] was the other man in these

photographs you looked at? (referring to photographs of

the robbers taken by bank cameras)

A: Yes.

Wilton also admitted to telling police that Carr picked him up at

his cousin Christopher Spooner’s house early on the morning of the

robbery and that they went to see their cousin, Craig Burton; 4 that

Wilton, Joshua, Carr, Spooner, and Craig Burton had robbed the

bank; and, th at he and Joshua had gone to rob the bank in Carr’s

automobile. Of course, Wilton denied that these statements were

true; he admitted only that he had made them, but while under

duress.

2. Asia Morgan’s Testimony

The court admitted against Joshua Burton the testimony of Asia

Morgan regarding one conversation she overheard between her

husband, Christopher Spooner, and Wilton Burton an d another she5 “A statement is not hearsay if

. . . [ t]he statement is

offered against a party and is

. . . a statement by a coconspirator

of a party during the course and in furtherance of the conspiracy.”

Fed. R. Evid. 801(d)(2)(E).

7 herself had with Wilton. Christopher Spooner is Wilton Burton’s

cousin; Wilton regularly spent the night at Asia and Christopher’s

apartment.

On appeal, Joshua Burton contends the court erred in admitting

Asia’s testimony because it was hearsay and did not fall within the

“co-conspirator” exception of Federal Rule of Evidence

801(d)(2)(E). 5 Before admitting a co-conspirator’s statement under

this Rule, the court must determine by a preponderance of the

evidence (1) that there w as a conspiracy involving the declarant

and the non-offering party, and (2) that the statement was made

“during the course and in furtherance of the conspiracy.” United

States v. Bourjaily

, 483 U.S. 171, 175 (1987); United States v.

McC onnell , 988 F.2d 530, 533 (5th Cir. 1993). In making that

determination, the court may consider the hearsay statements sought

to be admitted. B ourjaily

, 483 U.S. at 181. Joshua argues that

there was insufficient ev idence to find he was a member of the

conspiracy. He also maintains, in any case, that the statements

testified to by Asia Morgan were not “in furtherance of” the

conspiracy.

The court found, by a preponderance of the evidence, that

Joshua was a member of a conspiracy including Wilton Burton and

Quinton Carr. The court made no finding, however, whether the

statements Asia testified to were “in furtherance of” the8

conspiracy.

We must first address whether Joshua Burton adequately raised

these issues i n the district court. An appellant must raise an

objection to the admission of evidence at trial such that the issue

is presented to the district court “with sufficient specificity.”

United States v. Maldonado

, 42 F.3d 906, 910 (5th Cir. 1995). A

sufficiently specific objection is necessary at trial so that

“testimony could have been taken, and argument receiv ed, on that

issue; and [so that] the district court would have dealt with it.”

Maldonado

, 42 F.3d at 912. If the issue was not adequately raised

at trial, we review only for plain error

. U nited States v.

Calverley , 37 F.3d 160, 162 (5th Cir. 1994) (en banc).

Near the beginning of Asia Morgan’s direct examination, the

Government asked her whether she had ever heard Wilton Burton speak

to her husband “a bout planning a bank robbery.” At that point,

counsel for Craig Burton and Joshua Burton made the following

objections:

MR. WILSON: Your Honor, I’d object to any references

to my client Craig Burton under 801.d2e.

MS. KAPUNGU: The same would apply to Joshua Burton.

(emphasis added). The court did not immediately rule on those

objections; instead, it instructed the Government to “ask the

question” again. The Government’s questions immediately subsequent

to those objections did not raise any hearsay matters and so there

were no further objections.

Soon after that exchange, there was a bench conference in

which the AUSA indicated that the Government intended to introduce6 The court had previously found, by a preponderance of the

evidence, that a conspiracy existed between Wilton Burton and

Quinton Carr.

9 testimony by Asia regarding a conversation she had had with Wilton

Burton that alluded to the bank robbery and implicated Joshua. The

court then questioned the AUSA as to what evidence the Government

had linking Joshua to the conspiracy involving Wilton Burton and

Quinton Carr. 6 When the AUSA informed the court that it intended

to introduce the testimony of F.B.I. Agent Eric Johns on ( see

discussion infr a Part I.A.4) that would link Joshua to the

conspiracy, the court made the following finding:

Subject to that evidence coming in and then conditioned

upon [its] admissibility, I am going to I conclude

[sic] that Joshua was a member of this same conspiracy

that I earlier found by a preponderance of the evidence

existed between Wilton Clyde Burton Junior and Quinton

Carr.

During this colloqu y, counsel for Joshua Burton raised only the

sufficiency of the Gove rnment’s evidence linking Joshua to the

conspiracy. The “in furtherance” requirement of 801(d)(2)(E) was

not mentioned and the court made no findings on that point.

On this record, we find that Joshua Burton’s counsel

ade quately objected to Morgan’s testimony on the ground that

sufficient evidence had not been adduced to link Joshua to the

conspiracy. The issue whether the statements to which Asia Morgan

testified were “in furtherance of” the conspiracy, however, was not

specifically raised. On appeal, Joshua Burton relies on his

counsel’s o bjection to Asia Morgan’s testimony “under 801.d2e”;

indeed, in his brief Joshua Burton claims that “[h]is objection7 Dickerson held that an officer may lawfully seize contraband

during a Terry search only if the search remains within the bounds

of Terry (i.e., the officer is investigating an object that may

reasonably be a weapon) and the object’s identity as contraband is

“immediately apparent.” S ee Maldonado

, 42 F.3d at 909, citing

Dickerson

, 508 U.S. at 375; s ee also Terry v. Ohio

, 392 U.S. 1, 26

(1968).

10 could not have been more precise.” In this particular context,

however, that is not the case.

In Maldonado , the issue was whether defense counsel objected

with sufficient specificity that a police officer’s Terry stop and

patdown search of defendant contravened the Supreme Court’s (then)

recent decision in Minnesota v. Dickerson

, 50 8 U.S. 366 (1993). 7

During the patdown, the officer discovered a bulge in defendant’s

boot, reac hed in and withdrew a rounded, duct-taped package and

opened it; the package contained heroin. Counsel objected that

the officer had no “probable cause” to open the package, but did

not cite Dickerson to the court, even though Dickerson had been

decided three and one-half months before defendant’s motion to

suppress was filed. We determined that the D ickerson issue had not

been adequate ly raised at trial and therefore reviewed for plain

error. Maldonado , 42 F.3d at 912.

Joshua Burton argues that Maldonado resolves the question in

h is favor: counsel in M aldonado did not cite Dickerson to the

district court and therefore forfeited the error based on Dickerson

(i.e., that the officer’s “plain feel” seizure of the heroin

violated Terry because it should have been immediately apparent to

the office r that the package was not a weapon); by contrast,

Joshua’s trial counsel cited the specific rul e and subsection of8 In Maldonado we did indicate that a specific ci tation to

Dickerson would probabl y have been sufficient to bring the issue

before the district court. M aldonado

, 42 F.3d at 910 (“At no stage

of the suppression process was Dickerson ever cited to the district

court

. . .”). That was true in M aldonado

, n ot because citing a

case or rule magically presents a particular issue to the court,

but because in the precise context of M aldonado (an evidentia r y suppression hearing regarding the propriety of a Terry patdown), a

citation to Dickerson would have been sufficiently sp ecific. In

the instant matter, by contrast, a bare-bones citation to rule

801(d)(2)(E) was not sufficient to bring the “in furtherance” issue

clearly before the district court; the discussion of court and

counsel subsequent to that objection, in which no mention was made

of the “in furtherance” issue, shows this to be true.

11 the Federal Rules of Evidence on which her objection was based.

Therefore, Joshua argues, her objection was sufficiently specific

t o bring a ny issue under 801(d)(2)(E) before the district court.

Joshua, however, exaggerates the “specificity” of trial counsel’s

objection and misapprehends the thrust of Maldonado

.

Under Maldonado

, a determination whether an objection was made

with “sufficient specificity” does n ot hinge on whether counsel

cited a specific case or article in her objection. Instead, the

touchstone is whether the objection was specific enough to allow

the trial court to take testimony, receive argument, or otherwise

explore the issue raised. M aldonado

, 42 F.3d at 912. 8 Certainly,

citing a specific case or article to the court could shed m ore

light on the substance of an objection. On this record, however,

more was necessary to bring the “in furtherance” issue before the

district court.

First, Rule 801(d)(2)(E) contains at least four possible bases

for an objection to proffered co-conspirators’ testimony: that the

declarant was not a co-conspirator; that the party against whom the12

statement is offered was not a co-conspirator; that the statement

was not made “in the course” of the conspiracy; that the statement

was not made “in furtherance of” the conspiracy. S ee McConnell

,

988 F.2d at 533. A court could entertain an objection to a coconspirator’s statement u nder any of these distinct bases; the

objection would s till, however, be “under 801(d)(2)(E).” S ee,

e.g.

, McConnell , 988 F.2d at 534.

Second, the fact that the party offering the co-conspirator’s

statement has the burden of establishing that the statement falls

within 801(d)(2)(E), see United States v. Triplett

, 922 F.2d 1174,

1181 (5th Cir. 1991), has no bearing on whether an adequate

objection was raised to the proffered evidence. Whether the

offering party carried its burden or not, if the objecting party

wants to avoid forfeiting its error on appeal it must object with

“sufficient specificity” to allow the trial court to address the

issue. Maldonado , 42 F.3d at 910, 912.

Third, and most importantly, the thrust of the objections here

was whether sufficient evidence linked Joshua to the conspiracy and

not whether the statements were “in furtherance of” the conspiracy.

See Maldonado , 42 F.3d at 911 (“Argument presented at the hearing

by Maldonado’s lawyer after the testimony further indicates he was

concerned only with post -removal probable cause.”). During the

bench conference at which the propriety of Asia Morgan’s testimony

was before the court, the “in furtherance” requirement was not9 Additio n ally, the “801(d)(2)(E)” objection came well before

that bench conference, and in the context of a different

conversation overheard by Asia between her husband and Wilton

Burton.

1 0 Agent Johnson also testified that he f ound letters in the

room from Joshua to his girlfriend LeJuangela Jones, thus tying the

objects found in the room to Joshua.

11 The actual clothes worn and the duffel bag used in the

robbery were not recovered by the Government. Contrary to what the

Governmen t asserted in its brief, witnesses at trial were shown

items that corresponded to the bar codes on receipts found in

Joshua’s former room, and not the actual items.

13 mentioned. 9

In sum, then, the objection that the statements to which Asia

testified were not “in furtherance of” t he conspiracy was not

adequately raised. We therefore review that point for plain error.

Calverley , 37 F.3d at 162; Fed. R. Crim. P. 52(b). On the other

hand, the ground that the Government had not adduced sufficient

evidence linking Joshua Burton to th e conspiracy was adequately

raised. We will thus review the district court’s finding on that

point for clear error. U nited States v. Hawkins

, 661 F.2d 436, 450

(5th Cir. 1981).

We first deal with the district court’s finding that the

Government proved that Joshua Burton was a member of the

conspiracy. The Government called F.B.I. Agent Eric Johnson, who

testified that he found receipts for clothing and a duffel bag in

a room that Joshua had rece ntly vacated. 1 0 Other witnesses

identified the objects corresponding to the bar codes on those

receipts (grey sweat clothes and a black duffel bag) as “similar”

to those used in the robbery. 11 The Government also introduced the14

testimony of Ed Burton, the Appellants’ uncle, that while he was

working in the vicinity of the bank on the morning of the robbery

he thought he saw Joshua Burton driving around in Quentin Carr’s

blue Pontiac (the car that was later found abandone d at the car

wash and identified as the one used in the robbery). Finally, the

court could have relied on Wilton Burton’s testimony that he told

police he and Joshua were the men appearing in the bank photos of

the robbery.

Giv en this evidence, we cannot say the district court’s

determination that Joshua was a m ember of the conspiracy was

clearly erroneous.

We next turn to the question whether admission of Asia

Morgan’s testimony constituted “plain error” because the statements

to which she testified were not “in furtherance” of the conspiracy

between Joshua Burton, Wilton Burton and Quinton Carr. Fed. R.

Crim. P. 52(b); Fed. R. Evid. 801(d)(2)(E). We conclude that

allowing her testimony did not constitute “plain error” in that the

error, if any, was not “plain” under current law.

We follow a four step analysis for “plain error” review: (1)

there must be an “error,” i.e., a “de viation from a legal rule,”

that has not been waived; (2) the error must be “plain,” i.e.,

“clear” or “obvious” under current law; (3) the error must “affect

substantial rights,” i.e., it must have affected the outcome of the

proceeding; and, (4) even if the error was “plain” and “affected

substantial rights,” the Court of Appeals, exercising its

discretion, should correct the error only if the error “seriously1 2 For purposes of resol ving this issue, then, we assume that

the statements to which she was allowed to tes tify were not “in

furtherance of” the conspiracy.

15 affect[s] the fairness, integrity or public reputation of judicial

proceedings.” United States v. Olano , 507 U.S. 725, 732-737

(1993); United States v. Calverley , 37 F.3d 160, 162-64 (5th Cir.

1994) (en banc).

Since we resolve the question by reference to the second Olano

factor (i.e., that the error here was not “plain”), we assume

without deciding that the district court’s decision to admit Asia

Morgan’s testimony was error. 12 By “plain,” the United States

Supreme Court means “clear” or “obvious” under current law. O lano

,

507 U.S. at 734; Calverley

, 37 F.3d at 162-16 4. Thus, we must

examine, first, what Asia Morgan testifi ed to, and, second,

determine whether under current law it is “clear” or “obvious” that

such a statement was not “in furtherance of” the conspiracy under

801(d)(2)(E).

Asia testified that she had a conversation with Wilton Burton

sometime before December 21, the day of the robbery. During that

conversation, Wilton told her that “i t was going to be a nice

Christmas.” When asked whether Wilton explained to her why it

would be a “nice Christmas,” Asia testified (after refreshing her

recollection from her grand jury testimony): “He [Wilton] said

that he and his cousin had planned to rob a bank.” Asia explained

that Wilton was referring to his cousin “Zeak i”; it had earlier

been established that “Zeaki” was Joshua Burton’s nickname. S ee

discussion infra Part I.A.3.16

The requirement t h at a co-conspirator’s statement be “in

furtherance of” the conspiracy “is not to be construed too strictly

lest the purpose of the exception be defeated.” United States v.

Broussard

, 80 F.3d 1025, 1039 (5th Cir. 1996); United States v.

Lechuga

, 888 F.2d 1472, 1480 (5th Cir. 1989). We have “shunned an

overly literal interpretation of this [phrase].” B roussard

, 8 0

F.3d at 1039, quoting United States v. Ascarrunz

, 838 F.2d 759, 763

(5th Cir. 1988). “Mere idle conversation,” however, is not

considered “in furtherance of” a conspiracy. U nited States v.

Means

, 695 F.2d 811, 818 (5th Cir. 1983); United States v. Miller

,

664 F.2d 94, 98 (5th Cir. 1981).

We have found the following statements to be “in furtherance

of” a conspiracy under 801(d)(2)(E): “a statement that identifies

the role of one co-conspirator to another” ( United States v. Magee

,

821 F.2d 234, 244 (5th Cir. 1987)); statements conveying

“information [that] could have been intended to affect future

dealings between the parties” ( United States v. Patton

, 5 94 F.2d

444, 447 (5th Cir. 1979)); “[p]uffing , boasts, and other

conversation

. . . when used by the declarant to obtain the

confidence of one involved in the conspiracy” ( Miller

, 664 F.2d at

98); “statements which are puffing or boasts, but which are used to

obtain the confidence of the person toward whom the statement is

directed” ( United States v. Johnson

, 872 F.2d 612, 623 (5th Cir.

1989)). See also United States v. Smith , 833 F.2d 213, 219 (10th

Cir. 1987) (“[S]tatements that explain events of importance to the

conspiracy in order to facilitate its operation are considered to1 3 Ed Burton initially testified that the car was “green.”

Further testimony established that Ed was not particularly “good on

colors.” He was able to identify the car as the same one depicted

in the photos shown to him of the car wash. The jury could have

reasonably believed, then, that Ed made a mista ke when he

originally testified the car was “green” and not “blue.”

14 Ed also testified that Joshua’s nickname was “Zeaki.”

1 5 It bears noting here that Rita Gwen, Carr’s girlfr iend,

testified that Carr picked her up that same morning in a creamcolored Lexus; it was shown that Joshua drove a cream-colored

Lexus. See discussion infra Part I.B.3.

17 be in furtherance of the conspiracy.”).

We cannot, after examining the current law construing the “in

furtherance of” requirement of 801(d)(2)(E), say that the error, if

any, was “plain.” Given the vague nature and context of the

comments made to Asia by Wilton Burton, we are not prepared to deem

it “plain” under current law that these statements were not “in

furtherance of” the conspiracy.

3. Testimony of Ed Burton

Ed Burton, both Joshua Burton and Quinton Carr’s uncle,

testified that on the morning of December 21, while he was on his

w ay to work, he thought he saw his nephew Joshua driving C arr’s

vehic le 13 in the vicinity of Bank One. Although Ed had not seen

Joshua in four or five years, he testified that he would have been

able to recognize him. 14 Ed called out to his nephew when he saw

him, but received no response. 15

Ed also testified that later that day, around 3:00 p.m., he

saw the same car fleeing the scene of the robbery (he was unable to

identify its occupants at that time, however). When shown a

picture of the car found abandoned at the car wash, Ed Burton1 6 Joshua’s counsel objected to Agent Johnson’s testimony on the

basis that it had not been established that the room was Joshua’s

“residence.” Agent Johnson testified, however, that before

searching the room he “conducted several computer checks,”

consulted with other investigators, was informed by the owners of

the house that the room had recently been Joshua’s, and, finally

and perhaps most importantly, found letters in the room from Joshua

to his girlfriend, LeJuangela Jones.

18 identified it as the same car he had seen twice before on the day

of the robbery in the vicinity of Bank One.

4. Clothing and duffel bag receipts.

F.B.I. Agent Eric Johnson testified that on December 23, 1994

he searched a room where Joshua Burton had been staying. 16 In the

room, Agent Johnson found three receipts, one from K-Mart and two

from Academy, dated November 30, 1994 (about three weeks before the

robbery).

An employee of K-Mart testified that the UPC codes on the KMart receipt correspo nded to a duffel bag and to a “small, flat

h at.” When shown photos from the bank robbery, she also stated

that the hats the robbers had pu lled down over their faces were

simila r to the type indicated by the UPC codes on the receipts.

Other eye-witnesses to the robbery testified that a duffel bag

matching the code on the receipt was similar to the one the robbers

were carrying and from which they took the fake bombs.

An employee of Academy testified that the SKU numbers on the

Ac ademy receipt corresponded to grey sweat pants, a small sweat

shirt, and a large hooded sweat shirt. Eye-witnesses to the

robbery identified clothing corresponding to the SKU numbers on the

receipts as similar to clothing worn by the robbers.19 5. Conclusion

The G overnment proved that Joshua Burton was seen in the

vicinity of the bank on the day of the robbery driving the car that

was later used in the robbery. There was also testimony that

Quinton Carr was driving Joshua Burton’s Lexus around that same

time. The Government introduced receipts found where Joshua had

recently been living; those receipts corresponded to clothing and

items identified by eye-witnesses as similar to the clothing worn

by the robbers and a bag used by the robbers to carry fake bombs.

There was evidence that W ilton Burton, one of Joshua’s coconspirators, talked about planning the robbery with Joshua.

Finally, Wilton admitted at trial that he had told police that he

and Joshua were the men in the photos of the robbery taken by bank

cameras. Wilton recanted that statement in the same breath, but

the jury was entitled to believe what he admitted at trial to have

been his earlier version. The jury also could have relied, along

with the othe r circumstantial evidence, on Joshua’s familial

connection with the other participants in the robbery. S ee

Williams-Hendricks , 805 F.2d at 503.

Based on this evidence, a rational trier of fact could have

found beyond a reasonable doubt that the Governmen t carried its

burden of proof as to Joshua Burton.

B. Quinton Carr

1. The blue Pontiac.

Police found a blue Pontiac abandoned, with its engine still

running, in a car wash near the robbery scene. The key was in the1 7 The Government called the police operator’s supervisor, who

aided in interpreting the stolen car report.

20 ignition and the car showed no signs of having been hot wired.

Police found evidence in the car linking it to Quinton Carr,

including an a utomobile service contract in Carr’s name, Carr’s

medical card, and cards written to Carr by his girlfriend Rita

Gwen. Ed Burton testified that he saw the car in the vicinity of

the bank both on the morning and the afternoon of the robbery. S ee

discussion supra Part I.A.3.

A police operator testified that she received a call shortly

after midnight on December 22 (the morning after the robbery),

apparently from Carr, reporting his car stolen. Although there was

some conf usion about the interpretation of her report, 1 7 a

reasonable construction of her report was that Carr reported he had

last seen the car at his cousin’s apartment on December 5 but only

realized it had been stolen on December 21. Christopher Spooner

testified that Wilton Burton told him Carr’s stolen car report was

false. S ee discussion i nfra Part I.B.2. Although Carr’s

girlfriend Rita Gwen testified that the last time she had seen the

car was on De c ember 9 or 10 parked in front of Christopher

Spooner’s house, she told the grand jury that she last saw the car

at Spooner’s as late as December 20.

2. Testimony of Christopher Spooner.

Christopher Spooner is Asia Morgan’s husband. Wilton Burton

regularly spent t he night at their apartment. Spooner testified

that Wilton spent the night at their apartment on December 20-211 8 Spooner also testified that Wilton tried to “bring guns” into

his apartment, but that Spooner asked him to remove them.

1 9 The court then made a finding that the Government had proved,

by a preponderance of the evidence, that there was a conspiracy

between Quinton Carr and Wilton Burton and that the statements made

by Wilton to Spooner were in furtherance of that conspiracy. See

Fed. R. Evid. 801(d)(2)(E). Carr’s counsel did not object to the

court’s ruling and does not raise it as error on appeal.

21 and that Wilton left with Carr on the morning of the 21st at 4:30

a.m. Spooner said Wilton and Quinton left in Quinton’s car, but he

did not actually see them getting into the car; he testified,

however, that Quinton’s car was parked in front of his apartment

building on the morning of December 21.

Spooner test ified that he had overheard Wilton and Quinton,

talking “about ba nk robberies” about two weeks before the actual

robbery:

Q: Did they both say things in your presence that made

you understand they were talking about a bank robbery?

A: Yes. 18

On cross examination, Spooner stated that Wilton and Carr were

“generally speaking ” about bank robberies and that they did not

refer specifically to the December 21 robbery. 19

Spooner said that Wilton had not told him that Carr was

involved in the bank robbery. Wilton, however, did tell Spooner

that they had used Carr’s vehicle in the robbery and had then

abandoned it at a car wash. Significantly, Wilton told Spooner

that Quinton Carr was going to call the police and report his car

stolen and that the report would be false.

3. Testimony of Rita Gwen.2 0 The police operator’s report indicates that the call came in

shortly after midnight. See supra Part I.B.1.

22 Rita Gwen, Carr’s girlfriend, testified tha t Carr spent the

night with her on December 20-21 and left very early on the morning

of December 21, the day of the robbery. She said he picked her up

around noon that day and that he was driving a cream-colored Lexus.

Other witnesses testified that Joshua Burton drove a cream-colored

Lexus. Carr took Gwen to pay bills and dropped her off around 1:00

p.m. She saw Carr again around 3:00 p.m., when he returned to her

place, still driving the Lexus, but this time accompanied by Wilton

Burton. Wilton apparently remained with her and Carr for the rest

of the day. Gwen also testified that Carr, at some point that

evening, reported his car stolen; she could not specify whether he

called around 7:00 that evening or between 10 and 11:00 p.m. 20 S ee

also discussion supra Part I.B.1.

4. Conclusion

Our function in reviewing the sufficiency of the evidence is

not to determine “whether the trier of fact made the correct guilt

or innocence determination, but whether it made a rational decision

to convict or acquit.” U nited States v. Ornelas-Rodriguez

, 12 F.3d

1339, 1344 (5th Cir. 1994), quoting Herrera v. Collins

, 506 U.S.

390, 402 (1993). Here, the principle is apposite that “[w]hile

each piece of evidence, viewed independently[,] may have been

susceptible of innocent interpretation

. . . the jury reasonably

could have concluded that w hen examined in the aggregate , the

evidence sufficed to establish

. . . guilt.” O rnelas-Rodriguez

, 1223

F.3d at 1346. (emphasis added). With that in mind, we find that

the evidence was sufficient f or a rational trier of fact to find

Quinton Carr guilty beyond a reasonable doubt of the crimes

charged.

On appe al Carr argues that the Government presented no

evidence that he agreed to participate in the robbery. He contends

the evidence shows he was “merely associated” with members of the

conspiracy and only “aware” of the criminal plan, not that he took

part in it. Carr also maintains that the jury could not infer from

the use of his car in the robbery, standing alone, that he allowed

the robbers to use it. Finally, Carr argues that his stolen car

report does not allow the inference that he was aiding and abetting

the robbery; even if the report was false, according to Carr, the

jury could, “at best,” infer that Carr was only trying to protect

himself when he discovered the car had been used in a robbery.

Carr would have us unduly curtail the “responsibility of the

trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to dr aw reasonable inferences from basic

facts to ultimate facts.” H errera

, 506 U.S. at 401-02, quoting

Jackson v. Virginia , 443 U.S. 307, 318-319 (1979). We decline to

do so. A rational trier of fact could have found that the evidence

before it established far more than Carr’s “mere association” with

the members of the conspiracy.

The jury reasonably could have found that the use of Carr’s

vehicle in the robbery, coupled with his sham stolen car report,

established that Carr was associated with the robbery, that he24

participated in it, and that he “sought by action to make the

venture succeed.” S ee 18 U.S .C. § 2. The jury could have found

this conclusion strengthened by Carr’s appearance, before and after

the robbery, in Joshua Burton’s Lexus. Certainly there is nothing

illegal in Carr driving Joshua’s car on the day of the robbery, or

in his leaving early that morning with Wilton Burton, or in his

showing up with Wilton soon after the robbery; but as coincidence

piles upon coincidence, a rational jury is entitled to find that

criminal activity may be afoot. S ee O rnelas-Rodriguez

, 12 F.3d at

1346.

Finally, a rational jury could have found from Christopher

Spooner’s testimony that Carr and Wilton Burton were planning the

bank robbery in question a mere two weeks before the robbery took

place. While Spooner’s testimony was vague, the jury did not have

to rely solely on it to find that Carr participated in the

conspiracy. The jury could also have considered Carr’s familial

and social relationships with the other members of the conspiracy,

and, most importantly, the series of “coincidences” that strongly

connected Carr and his vehicle to the robbery itself. S ee

Williams-Hendricks , 805 F.2d at 503.

In sum, we find that a rational jury could have found beyond

a reasonable doubt that the Government carried its burden of proof

as to Carr.

II. SENTENCING GUIDELINES

Both Appe llants argue that the district court erred in

applying a six-point increase to their offense levels pursuant to2 1 See U.S. S.G. § 1B1.3(a)(1)(B). That the conduct was

“reasonably foreseeable” and in furtherance of the robbery would

provide an alternate basis for attributing the conduct to Joshua,

25 U.S. Sentencing Guidelines Manual § 2B3.1(b)(2)(B)(1995) for

“otherwise us ing” a firearm. We review the district court’s

application and legal interpretation of the Sentencing Guidelines

de novo

, U nited States v. Domino

, 62 F.3d 716, 719 (5th Cir.

1995), and its findings of fact for clear error. U nited States v.

Hooker , 997 F.2d 67, 75 (5th Cir. 1993).

The Sentencing Guidelines define “otherwise used” as conduct

that “did not amount to the discharge of a firearm but was more

than br andishing, displaying, or possessing a firearm or other

dangerous weapon.” U.S.S.G. § 1B1.1, comment. (n.1(g)). We have

held that making threats while br andishing a firearm constitutes

“otherwise using” a firearm. United States v. DeLaRosa , 911 F.2d

985, 993 (5th Cir. 1990).

The “relevant conduct” to which we refer in determining Joshua

Burton’s Guideline range includes “all acts and omissions

committed, aided, abetted, counseled, commanded, induced, procured,

or willfully caused by the defendant.” U.S.S.G. § 1B1.3(a)(1)(A).

Testimony at trial showed that the robbers waved guns around during

the robbery and that at least one of them threatened to kill bank

employees if they did not cooperate. The district court found the

evidence sufficient to show that Joshua was one of the robbers who

entered the bank and that, even if Joshua was not the robber who

threatened the bank tellers’ lives, such conduct was reasonably

foreseeable given the nature of the offense. 21 We find that theeven if he were not the robber who made the threats. In any case,

the district co urt’s finding that Joshua did make threats during

the robbery is not clearly erroneous.

22 Joshua argues that his conduct warranted only a five-level

increase under U.S.S.G. § 2B3.1(b)(2)(C) for “brandishing.” The

Guidelines define “brandishing” to mean that “the wea pon was pointed or waved about, or displayed in a threatening manner.”

U.S.S.G. § 1B1.1, comment. (n.1(c)). The combination of threats

with the display of firearms, however, has been found sufficient to

constitute “otherwise using” a firearm. S ee DeLaRosa

, 911 F.2d at

993.

2 3 We make a “reasonable foreseeability” determination regarding

Carr because in determining his Guideline range we must refer to

the conduct of others. Such a determination was not necessary for

J oshua since Joshua personally undertook the conduct th a t

determined his range. See U.S.S.G. § 1B1.3, comment. (n.2).

26 district court’s findings of fact were not clearly erroneous.

Further, we find that the district court correctly interpreted the

Sentencing Guidelines in applying the six-level increase to Joshua

Burton’s offense level. 22

Regarding Quinton Carr, the “relevant conduct” to which we

refer in determining his Guideline range is, “all rea sonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). 2 3

The district court found that, given the nature of bank robbery,

Carr could have “reasonably foreseen” that a weapon would be used

during the robbery. Carr argues that the district court’s finding

that he should have “reasonably foreseen” the use of a firearm was

clearly erroneous; he also argues that the district court

misapplied the Guidelines by relying on the nature of the offense

to determine “reasonable foreseeability”. We disagree.

The Commentary to § 1B1.3 of the Guidelines indicates that in27

determining the scope of the “jointly undertaken criminal activity”

the court may consider “any explicit agreement or implicit

agreement fair ly inferred from the conduct of the defendant and

others.” U.S.S.G. § 1B1.3, comment. (n.2). Further, the

Illustrations under § 1B1.3 posit a situation in which “Defendant

C” is the getaway driver in an armed bank robbery in which a teller

is injured:

Defendant C is accountable for the injury to the teller

u nder subsection (a)(1)(B) because the assault on the

te l ler was in furtherance of the jointly undertaken

criminal activity (the robbery) and was reasonably

foreseeable in connection with that criminal activity

( given the nature of the offense ).

U.S .S.G. § 1B1.3, comment. (illustration (b)(1)). (emphasis

added). S ee also United States v. Guerrero

, 5 F.3d 868 , 871 n.7

(5th Cir. 1993).

We find that the district court reasonably inferred from the

evidence the scope of the criminal activity to which Carr agreed.

The district court’s de termination that, given such criminal

activity, Carr should have reasonably foreseen the use of a firearm

was not clearly erroneous. Further, we find that the district

court’s reliance on the nature of the offense to determine whether

the use of a firearm was reasonably foreseeable was not a

misapplication of the Guidelines.

We therefore affirm the district court’s application of a sixlevel increase to the offense levels of both Appellants.

III. CONCLUSION

For the foregoing reasons, we AFFIRM both Appellants’

convictions and sentences.