IN THE UNITED STATES COURT OF APPEALS

for the Fifth Circuit

__________________________

No. 93-7757

(Summary Calendar)

__________________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

versus

PAUL MARTIN MCCARTY,

Defendant-Appellant.

_______________________________________________

Appeal from the United States District Court

for the Southern District of Mississippi

_______________________________________________

(October 25, 1994)

DUHÉ, WIENER and STEWART, Circuit Judges.

PER CURIAM:

Paul Martin McCarty was convicted by jury of two counts of

bank robbery and one count of use of a firearm during a bank

robbery. He was sentenced to serve a 175-month concurrent term

of imprisonment on each of the bank robbery counts, and to serve

a consecutive term of 60 months on the firearm offense, for a

total of 235 months imprisonment. McCarty appeals his conviction

and sentence, asserting as error the following issues: (1)

admission of Rule 404(b) evidence, (2) sufficiency of evidence to

prove element of "force and violence, or intimidation", (3)

denial of motion to suppress, (4) admission of search-warrant

affidavit into evidence, (5) cumulative error, and (6) sentencing
errors and double jeopardy. Finding no reversible error, we affirm.

FACTS

On December 23, 1992, a man walked into the Sunburst Bank in

Jackson, Mississippi. The man wore a black wig and fake beard,

tennis shoes, coveralls, and black gloves. He carried a black

bag which had a zippered opening. He walked up to Robin Dunaway,

a teller, handed her a note and indicated that she was to give

him money from her two cash drawers. He did not speak to her,

but did use gestures to wave her past the security bait bills and

the dye pack. The man put the money into the black bag,

retrieved the note, and left the bank. A subsequent audit

disclosed that $13,816 was missing from Dunaway's cash drawer.

A few days later, on December 28, 1992, a stolen rental car

was located. It was a 1992 Ford Thunderbird. Whoever stole the

car apparently had a duplicate set of keys, because the rental

agency still had its keys when the car was stolen, and there was

no damage to the recovered vehicle and no evidence of forced

entry. In its trunk were the following: a black wig, fake beard

and mustache; blue coveralls; tennis shoes; a .38 caliber

revolver; a white clasp envelope, approximately 8 x 10 inches

large; and .38 caliber practice rounds were found in the envelope

and in the pockets of the coveralls. The white envelope was

submitted for fingerprint analysis. When checked, the rental

records for the Thunderbird revealed that the only local person

who had recently rented the vehicle before it was stolen was Paul

McCarty. McCarty had rented the vehicle on November 23, 1992,

and returned it on November 30, 1992.
3

On December 29, 1992, Paul M. McCarty purchased a blue 1993

Chevrolet pick-up truck for $18,272.01. He was allowed $1,500 on

a trade in, and he paid a down payment of $7,295.01 via a

cashier's check.

On February 11, 1993, a blue pick-up truck turned onto a

dead-end street. The driver turned into the driveway of a

residence, triggering motion detection lighting. The driver then

turned off the truck's headlights, backed out of the driveway to

turn the truck around, and parked the truck. Two women watched

from the window of their home as the man, who had turned into

their driveway, got out of the truck and walked to a nearby

street, toward the Magnolia Federal Bank. About 15 to 20 minutes

later, he returned to the truck and drove away. 

The next day, a man entered and robbed the Magnolia Federal

Bank. He was wearing a black wig and fake beard, tennis shoes,

and coveralls. He carried a black bag with a zippered opening. 

The man handed a typewritten note to the teller and, when she

"froze", he displayed a .45 caliber firearm. This time, he

demanded cash from three tellers. The man left the bank on foot

and got on a bicycle. A bank customer chased him. At some

point, the man stopped and searched his bag. In the process, he

emptied some of the money out onto the ground. The customer who

followed him hid between cars, heard gun fire--approximately two

shots--and assumed that the bank robber had retrieved a firearm

from the black bag and fired it. The bank robber got away. 
4

However, approximately $8,000 of the stolen money was recovered

from the ground.

Meanwhile, the fingerprints found on the white envelope were

identified as those of McCarty. On February 24, 1993, a warrant

issued to arrest him, and to search his apartment and his blue

Chevrolet truck. The affidavit in support of the warrants stated

much of the above facts. McCarty was arrested and the searches

were performed on February 25, 1993. Among the items seized were

two sets of keys found in the blue Chevy truck.

Paul Martin McCarty was charged in an indictment with (count

1) robbery of the Sunburst Bank on December 23, 1992, in

violation of 18 U.S.C. § 2113(a); (count 2) robbery of the

Magnolia Federal Bank and jeopardizing the lives of bank

employees by the use of a dangerous weapon on February 12, 1993,

in violation of 18 U.S.C. §§ 2113(a) and (d); (count 3) use of a

firearm during a bank robbery on February 12, 1993, in violation

of 18 U.S.C. § 924(c)(1); (count 4) money laundering; and (count

5) forfeiture. 

While incarcerated on these charges, McCarty shared a cell

block with Alan Lucero. Lucero notified his attorney that

McCarty had threatened certain witnesses and had described how he

committed the bank robberies. Lucero testified at trial. 

According to Lucero, McCarty said he had taken the .38 and .45

caliber guns, as well as a .22 caliber gun, during two

residential burglaries. Lucero also testified that McCarty said

he had rented a Lincoln car and duplicated the keys, and had
5

later stolen the Lincoln and used it for the Magnolia Federal

Bank robbery. Based upon this information from Lucero, law

enforcement officers located the stolen Lincoln and found in its

trunk the .45 caliber semi-automatic gun, a .22 caliber gun, a

typewriter and typewriter ribbon, a wig and fake beard,

coveralls, and tennis shoes. One set of the keys that were found

in McCarty's blue truck fit the stolen Lincoln. 

After trial, the jury convicted him of counts 1, 2, and 3

but found him not guilty of count 4. The Government dismissed

count 5. McCarty was sentenced to a total of 235 months

imprisonment. McCarty appeals his conviction and sentences.

DISCUSSION

ADMISSION OF RULE 404(B) EVIDENCE

McCarty asserts that the district court improperly allowed

admission of three types of extrinsic evidence. First, the court

permitted testimony about two burglaries which Lucero said

McCarty described. Second, the court permitted introduction of a

.22 caliber pistol which had no connection to any of the charged

offenses. Third, the court permitted Lucero to testify that

McCarty had threatened certain witnesses.

The district court's decision to admit extrinsic offense

evidence under Federal Rule of Evidence 404(b) will not be

disturbed absent a clear showing of abuse of discretion. United

States v. Bermea, 30 F.3d 1539, 1994 W.L. 45991 (5th Cir., No.

92-7349, Aug. 25, 1994), citing United States v. Bruno, 809 F.2d

1097, 1106 (5th Cir.), cert. denied, 481 U.S. 1057, 107 S.Ct.
 

1 Federal Rule of Evidence 403 provides as follows:

Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.

6

2198, 95 L.Ed.2d 853 (1987). Federal Rule of Evidence 404(b)

provides as follows:

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order

to show action in conformity therewith. It may,

however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or

accident, . . .

We review alleged violations of Rule 404(b) under the two-pronged

test of United States v. Beechum, 582 F.2d 898, 911 (5th Cir.

1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59

L.Ed.2d 472 (1979). That test requires that we verify (1) that

the evidence of extraneous conduct is relevant to an issue other

than a defendant's character, and (2) that it is not

substantially outweighed by its undue prejudice and is otherwise

admissible under Rule 403.1 Bermea, citing Beechum.

In order to determine relevance under the first prong, we

must address the threshold question of whether the government

offered sufficient proof demonstrating that the defendant

committed the alleged extrinsic offense. U.S. v. Ridlehuber, 11

F.3d 516, 522 (5th Cir. 1993), citing Beechum, 582 F.2d at 911. 

If the proof is insufficient, the judge must exclude the evidence

because it is irrelevant. Ridlehuber, 11 F.3d at 523, quoting

Beechum, 582 F.2d at 913. Rule 104(b) supplies the standard for
7

determining the admissibility of extrinsic offense evidence: 

"the preliminary fact can be decided by the judge against the

proponent only where the jury could not reasonably find the

preliminary fact to exist." Id. The second prong of the Beechum

analysis inquires whether Rule 403 has been satisfied, and we

must take care not to infringe upon the "broad discretion" of the

trial court regarding the relevance, probative value, and

prejudicial effect of evidence. Bermea (citations omitted).

We shall first examine the challenged testimony about the

burglaries. Vicky Phillips testified that her three-story Rankin

County house looks like a two-story house from the front because

two stories are built into a hillside so that it is actually

three stories in the back. She stated that her house had been

burglarized on November 30, 1992, and that the .45 caliber and

.22 caliber guns, recovered from the Lincoln, belonged to her and

her husband. Phillips verified that the serial numbers of the

.45 and the .22 matched those from her records. Barry Wood

testified that he had a single-story house in Rankin County that

was burglarized on November 30, 1992, and that the .38 caliber

Charter Arms revolver, recovered from the Thunderbird, belonged

to him. However, on cross-examination, he admitted that the only

reason he identified the revolver as his own is that he had been

informed that the revolver was traced back to the store where he

purchased it. Neither witness knew who had taken the guns, and

neither witness could identify McCarty. 
8

The government argued that the burglaries were committed in

the planning and preparation for the charged offenses, that

Lucero had already testified that McCarty told him about the two

burglaries, and that this testimony is admissible for the purpose

of corroborating the confession that McCarty made to Lucero. 

The district court allowed admission of the testimony as

corroboration of the testimony of Lucero, even though it stated

that it was difficult to precisely distinguish whether the acts

were exclusively extrinsic. After the jury retired for

deliberations, the district court stated the following:

I have concluded or I expressed to you that I had

concluded that Rule 404(b) is applicable and I so

instructed the jury with the approval of counsel for

the defendant. The record, of course, does reflect

that counsel for the defendant did object to the

testimony being admitted. I did not make the Beachum

[sic] findings at the time that I admitted the evidence

frankly because I hadn't decided that the testimony was

admissible on that basis in addition to the ground upon

which I admitted it at the time.

I do now find that in addition to the reason

previously given, the testimony was probative and

admissible under 404(b) to show plan or preparation for

the robberies that were committed and that under 403

the probative value was not substantially outweighed by

the danger of unfair prejudice. 

The .45 and .22 caliber guns were positively identified by

Phillips. They had been recovered from the stolen Lincoln which

McCarty had rented, along with a typewriter, wig and fake beard,

and other items which Lucero testified that McCarty said he left

in the Lincoln. Testimony and rental records show that McCarty

rented the Lincoln for one-half hour and put five miles on it. A

set of keys to the Lincoln was found in McCarty's truck. The .38
9

caliber gun was identified by Wood as his own, although Wood did

not have serial number records to show conclusively that it was

his gun. Wood's .38 was taken when his home was burglarized on

the same date as the Phillips' home. It had been recovered from

the stolen Thunderbird which McCarty had rented, and which

contained the envelope with McCarty's fingerprints. Lucero

testified that McCarty said he had found the guns when he

burglarized a two-story dwelling and a single-story dwelling in a

particular area of Rankin County. There was sufficient evidence

for the jury to reasonably find that McCarty had taken the three

guns from the respective homes. The first prong of the test is

satisfied as to both burglaries. 

As to the second prong, we find that the district court did

not abuse its wide discretion in determining that the probative

value outweighed the prejudicial effect of this testimony. There

was enough evidence, with the rental records for the two stolen

cars, the wigs and beards, and other testimonial and documentary

evidence, that we cannot say that the prejudicial effect of this

evidence substantially outweighs its probative value on issues

unrelated to McCarty's character.

McCarty also argues that the district court failed to make

adequate Beechum findings because it did not address the

necessary determination of whether or not there was sufficient

proof of the extrinsic evidence regarding the .38 and the .22

firearms. He further asserts that the district court incorrectly

concluded that Lucero's testimony about threats to witnesses was
10

not extrinsic evidence and, therefore, failed to make any of the

appropriate Beechum findings that there was sufficient proof of

this extrinsic evidence. 

The district court did make the requisite determination that

the probative value of the challenged evidence outweighs the

danger of unfair prejudice. The district court is not required

to make a preliminary finding that the defendant committed the

extrinsic evidence. Bermea. If the court determines, after

introduction of the evidence, that the jury could not reasonably

find by a preponderance of the evidence that the alleged

extrinsic act occurred, however, the court must instruct the jury

to disregard the evidence. Id., citing Huddleston v. United

States, 485 U.S. 681, 690, 108 S.Ct. 1496, 1501-02, 99 L.Ed.2d

771 (1988).

The district court instructed the jury as follows regarding

Lucero's testimony and the Rule 403(b) evidence (emphasis ours):

The testimony of one who provides evidence against a

defendant as an informer for a reduced sentence in his

criminal case must always be examined and weighed by

the jury with greater care and caution than the

testimony of ordinary witnesses. You, the jury, must

decide whether the witness' testimony has been affected

by the benefits that the witness has received as a

result of being granted leniency. You should keep in

mind that such testimony is always to be received with

caution and weighed with great care. You should never

convict any defendant upon the unsupported testimony of

such a witness unless you believe that testimony beyond

a reasonable doubt.

During the trial you have heard evidence of acts

of the defendant which may be similar to those charged

in the indictment, but which were committed on other

occasions. You must not consider any of this evidence

in deciding that the defendant committed the acts
11

charged in the indictment, however, you may consider

this evidence for other very limited purposes.

If you find beyond a reasonable doubt from other

evidence in this case that the defendant did commit the

acts charged in the indictment, then you may consider

evidence of the similar acts allegedly committed on

other occasions to determine whether the defendant

acted according to a plan or in preparation for

commission of a crime. These are the limited purposes

for which any evidence of other similar acts may be

considered.

The challenged testimony of Lucero on direct examination is as

follows:

Q. . . . If you would, please, tell the jury why you

picked that point in your relationship with McCarty to

tell the authorities about what he told you.

A. Well, the main reason was that threats were made

from Mr. McCarty about certain witnesses and people

that had identified him in conjunction with the crimes

that he committed, and that the statement was made to

me that if he gained his freedom that he would seek to

harm those individuals for identifying him, possibly

killing them.

Q. And so was that part of your motivation, then, at

that point?

A. Yes. That was my major motivation.

Although there is no supporting evidence regarding McCarty's

alleged threats to certain witnesses, we find the jury

instruction sufficient. The jury was instructed not to use

unsupported testimony to convict McCarty unless it believed that

testimony beyond a reasonable doubt; and the jury was instructed

to use evidence of similar acts only for limited purposes. 

Juries are presumed to follow the court's instructions. Zafiro

v. U.S., -- U.S. --, 113 S.Ct. 933, 939, 122 L.Ed.2d 317 (1993). 

We find no reversible error.
12

MOTION TO SUPPRESS

McCarty asserts that the trial court erred in denying his

motion to suppress the evidence seized as part of the search of

the pickup truck and the Lincoln. He contends that the warrants'

underlying affidavit contains "improper hearsay information" and

"knowingly false statements." McCarty also challenges the

issuance of the warrant, asserting that the affidavit contained

insufficient evidence for the finding of probable cause. 

In determining whether probable cause exists to order a

search, a magistrate must make a practical, common-sense decision

as to whether, given all the circumstances set forth in the

affidavit, there is a fair probability that evidence of a crime

will be found in a particular place. U.S. v. Byrd, No. 93-4998,

1994 WL 475833 (5th Cir. Sept. 1, 1994). Our review of the

sufficiency of the affidavit is independent of the district

court's and is not limited by the clearly erroneous standard of

review. U.S. v. McKeever, 5 F.3d 863, 865 (5th Cir. 1993)

(citations omitted). Like the district court, however, we owe

deference to the magistrate's determination of probable cause,

and we construe the affidavit in a common-sense manner. Id.

We review a district court's denial of a motion to suppress

due to the affidavit's failure to establish probable cause, using

the following two part test: (1) whether the good faith exception

to the exclusionary rule applies and (2) whether the warrant was

supported by probable cause. U.S. v. Mitchell, 31 F.3d 271 (5th

Cir. Aug. 25, 1994), citing U.S. v. Laury, 985 F.2d 1293, 1311
13

(5th Cir. 1993). Generally, if the good faith exception applies,

we need not reach the probable cause issue. Id.

Under the good faith exception, we uphold a search if the

officers reasonably relied on a search warrant, as long as the

warrant's underlying affidavit is not "so lacking in evidence of

probable cause as to render official belief in its existence

entirely unreasonable." See Mitchell, Id.; see also, United

States v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994); U.S. v.

Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992). 

The instant affidavit satisfies the good faith exception. 

Moreover, our review of the affidavit reveals that it presents

probable cause for the issuance of the search warrant. McCarty's

argument about hearsay fails, as hearsay is expressly allowed in

Rule 41(c)(1) of the Federal Rules of Criminal Procedure. Rule

41(c)(1) states that 

If the federal magistrate judge or state judge is

satisfied that grounds for the application exist or

that there is probable cause to believe that they

exist, that magistrate judge or state judge shall issue

a warrant identifying the property or person to be

seized and naming or describing the person or place to

be searched. The finding of probable cause may be

based upon hearsay evidence in whole or in part. . . . 

The affidavit contains enough supporting and/or corroborating

facts to render the hearsay contained therein sufficiently

reliable for the purpose of the magistrate's determination.

McCarty's argument regarding false statements and material

omissions also fails. Negligent omissions will not undermine the

affidavit. U.S. v. Martin, 615 F.2d at 329. Absent evidence of

an intentional material misrepresentation or omission in the
 

2 "Motions for directed verdict are abolished and motions

for judgment of acquittal shall be used in their place." Fed.

R. Crim. P. 29(a).

14

affidavit, the warrant will not be invalidated. Franks v.

Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676, 58 L.Ed.2d

667 (1978). The hearing on McCarty's motion to reconsider the

district court's denial of his motion to suppress revealed no

indication of intentional misrepresentation or omission. In

fact, the record reveals no misrepresentation by the affiant, and

no material omission. Accordingly, we find no error in the

district court's ruling. See and compare, U.S. v. Wake, 948 F.2d

1422, 1428-29 (5th Cir. 1991), cert denied, -- U.S. --, 112 S.Ct.

2944, 119 L.Ed.2d 569 (1992).

Our independent review of the affidavit reveals no error in

the district court's denial of McCarty's motion to suppress.

SUFFICIENCY OF THE EVIDENCE

McCarty argues that the district court erred in denying his

"motion for directed verdict"2 on count 1, bank robbery in

violation of 18 U.S.C. § 2113(a). Specifically, McCarty argues

that the evidence was insufficient to prove that he robbed the

Sunburst Bank "by force, violence and intimidation."

In order to prove a violation of 18 U.S.C. § 2113(a), the

Government 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,
15

or savings and loan association. U.S. v. Van, 814 F.2d 1004,

1005-06 (5th Cir. 1987). 

There is no assertion that McCarty used force or violence. 

We are faced only with the question of whether the evidence was

sufficient to prove that he robbed the bank by intimidation. As

used in § 2113(a), the term "intimidation" means "to make fearful

or to put into fear." U.S. v. Higdon, 832 F.2d 312, 315 (5th

Cir. 1987) (internal quotations omitted), cert. denied, 484 U.S.

1075, 108 S.Ct. 1051, 98 L.Ed.2d 1013 (1988). 

The Government is not required to show either an "express

verbal threat or a threatening display of a weapon." Id. Actual

fear need not be proven, if the acts of the defendant would

threaten an ordinary reasonable person. Id. Thus, the government

need show only that an ordinary person in the teller's position

would feel a threat of bodily harm from the perpetrator's acts. 

U.S. v. Baker, 17 F.3d 94, 97 (5th Cir. 1994), cert. denied, 1994

WL 286410 (Oct. 3, 1994).

[I]ntimidation results when one individual acts in a

manner that is reasonably calculated to put another in

fear. Thus, from the perspective of the victim, a

taking "by intimidation" under section 2113(a) occurs

when an ordinary person in the teller's position

reasonably could infer a threat of bodily harm from the

defendant's acts. [Citations omitted.]

Higdon, 832 F.2d at 315. "Evidence that [the perpetrator's] acts

did induce fear in an individual victim is probative of whether

his acts were objectively intimidating." Id.

Using the "rational jury" standard, this Court recently

upheld a conviction for aiding and abetting bank robbery in
 

3 This Court noted in Higdon, 832 F.2d at 316, that other

courts had found sufficient evidence of intimidation "under

similar or less compelling circumstances." 832 F.2d at 316

(citing U.S. v. Hopkins, 703 F.2d 1102 (9th Cir. 1983)(no threats

and unarmed); U.S. v. Slater, 692 F.2d 107 (10th Cir. 1982)(no

threats and unarmed); U.S. v. Robinson, 527 F.2d 1170 (6th Cir.

1975)(no express threat or display of weapons); U.S. v. Epps, 438

F.2d 1192 (4th Cir. 1971); U.S. v. Brown, 412 F.2d 381 (8th Cir.

1969)).

16

violation of § 2113(a). Baker, 17 F.3d at 96. Baker involved

two consecutive robbery attempts in which an 11-year old boy

presented tellers a note which contained an express threat of

bodily injury. Id. at 95. Both tellers testified that although

they were at first incredulous, they became fearful and felt

threatened. Id. at 97.

In Higdon, the victim-tellers both testified that they

complied with the robber's demands out of fear. 832 F.2d at 313. 

The robber did not display a gun or verbally threaten them with

physical harm. Id. He did "order[] the two women to lie on the

floor and told them not to `dare' to get up." Id. Using the

"manifest miscarriage of justice" standard, this Court affirmed

the conviction for bank robbery in violation § 2113(a). Id. at

316.3

On December 23, 1992, a man entered the Sunburst Bank

wearing a fake beard, wig, dark clothing, gloves, and a cap and

carrying a black purse. Teller Robin Dunaway testified that as

soon as she saw this outfit that was "so abnormal," she knew she

"was fixing to be robbed." There were no other customers in the

bank at the time, and the only bank employees were two other

tellers and a secretary. The robber approached Dunaway's window,
17

unfolded a note, and handed it to her. Dunaway testified that

the typewritten note said, "Be calm. This is a robbery." 

Dunaway indicated that the note said more but she only "skimmed

the note because there was no doubt what it said." The robber

did not speak to her. He indicated to her through hand gestures

which denominations of bills to place on the counter and waved

her past the bait bills and dye pack. The robber did not display

a gun. The robber placed the money in the bag and "ran out the

front door."

Bank photographs of the robbery were introduced into

evidence. Dunaway testified that the robbery occurred over what

"seemed like a real long time. I would think it seemed real

long, probably almost a complete minute." She stated that she

"was, of course, nervous at the time." Dunaway described the

robber as "pretty tall. I'm five-six, so I said I would say six

feet to six-three." Dunaway also testified "I'll never forget

the wig and the face . . ." Id. at 62. She testified she did not

remember anything regarding other bank employees, that she never

took her eyes "off in front" of her counter, and that her mind

was not on what other employees were doing. Id. at 68-69.

Angela Cooper, the secretary at Sunburst testified that she

witnessed the robbery. She first noticed the bank was being

robbed when the robber "first walked in." She did not see a gun

during the course of the robbery.

McCarty argues that there was absolutely no proof whatsoever

at trial of intimidation. He argues that the only communication
18

between the robber and the teller was via the typewritten note. 

He highlights that the teller did not "testify directly or by

suggestion that she was afraid." 

The Government argues that "[t]he size differential between

[the robber] and the victim teller could certainly cause her to

feel threatened." It argues that the teller "indicated fear by

not taking the time to read the demand note." The Government

argues that "[o]ne will never know exactly what the note said

because the defendant took it with him. The jury could have

reasonably inferred that it contained a sufficient threat since

the teller complied promptly and even obeyed defendant's nonverbal instructions to omit the security dye pack from the loot."

McCarty moved for a judgment of acquittal at the close of

the Government's case. The district court denied the motion. 

The record does not reflect that the motion was renewed at the

conclusion of the evidence. Neither the pleadings in the record

nor the docket sheet reflect that any post trial motion for

acquittal was filed by the defendant.

 This Court has held that if a defendant fails to renew his

motion for acquittal at the close of all evidence, we are limited

to a review for plain error. Under the plain error standard, we

reverse only where 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." U.S. v. Pierre, 958 F.2d 1304, 1310 (5th Cir.) (en
 

4 See U.S. v. Pennington, 20 F.3d 593, 597 n.2 (5th Cir.

1994); see also, U. S. v. Davis, 583 F.2d 190, 198-199 (5th Cir.

1978) (Clark, J. concurring in part and dissenting in part).

19

banc), cert. denied, --- U.S. ---, 113 S. Ct. 280, 121 L.Ed.2d

207 (1992) (internal quotations and citations omitted). Although

there has been some question as to the distinction between the

plain error "miscarriage of justice" standard and the

"sufficiency of the evidence" standard,4 we are bound by the

precedent of this circuit, as reflected in Pierre and in U.S. v.

Thomas, 12 F.3d 1350, 1358 (5th Cir. 1994), cert. denied, ___

U.S. ___, 114 S.Ct. 1861, 128 L.Ed.2d 483 (1994) (finding the

plain error standard proper where the defendant fails to move for

judgment of acquittal at the close of evidence). 

A jury could glean from Dunaway's testimony that she was

afraid. She stated she was nervous and that the bank robber's

appearance was unforgettable. Dunaway's initial reaction, when

she saw the strangely dressed man enter the bank, was that she

"knew" a robbery was about to occur. This man immediately walked

to her counter. Her intuitive suspicion was quickly confirmed by

the robber when he unfolded a note and presented it to her. A

jury could easily infer that the robber's appearance and actions

exacerbated her nervousness. Applying common sense, the jury

could reasonably conclude that the coercive actions of the robber

did intimidate Dunaway. The jury was also presented three

photographs (Government Exhibits 3, 4, and 5) of the Sunburst

robbery in progress. Jurors viewing these photographs could

readily see the foreboding presence of the long-haired, long-
20

bearded robber who confronted Dunaway. The instant record is

therefore far from "devoid" of evidence of intimidation in the

Sunburst Bank robbery: even a rational jury could have found,

beyond a reasonable doubt, that an ordinary person in Dunaway's

position would feel a threat of bodily harm from McCarty's acts. 

Accordingly, we find no error in the district court's denial of

McCarty's motion for judgment of acquittal at the close of the

government's case, and we affirm as to McCarty's sufficiency of

the evidence claim.

CUMULATIVE ERROR

McCarty asserts as cumulative error (1) the admission of the

allegedly prohibited Rule 404(b) testimony, and (2) repeated

rulings by the district court which "overruled legitimate

objections of defense counsel". The Federal Rule of Evidence

Rule 404(b) argument is without merit, as discussed above. We

shall therefore examine the remaining two assertions.

McCarty contends that the district court repeatedly

overruled his counsel's legitimate objections such that it

undermined the trial process to such a degree that the conviction

should be overturned. He argues only two objections. First is

his objection to the admission of a photograph of the typewriter

ribbon used during the testimony of one of the government's

expert witnesses.

FBI Special Agent Lou Senter, a forensic document examiner,

testified as an expert witness about his examination of the

typewriter ribbon which had been recovered, with the typewriter,
21

from the trunk of the stolen Lincoln. The typewriter ribbon and

cartridge were admitted into evidence as Government Exhibits 39

and 40. He testified he found on the ribbon--verbatim, including

retypes, strikeovers, and corrections--the entire text of the

demand note used by the robber in the Magnolia Federal Bank

robbery. Senter testified that the photographs accurately depict

the ribbon which contains the words of the demand note. It was

his opinion that the ribbon was the same ribbon used to type the

Magnolia bank robbery note. 

According to McCarty, the government's failure to obtain the

photographs prior to trial rendered defense counsel unable to

obtain his own document expert in an attempt to rebut the

government's expert. However, McCarty has not challenged the

admission of Senter's testimony or report regarding the ribbon,

or the admission of the typewriter ribbon which is depicted on

the photographs. McCarty has made no showing that the presence

or absence of the photographs affected his ability to have his

own expert to examine Senter's report regarding the typewriter

ribbon, or to otherwise obtain or examine discoverable

information about the ribbon. We find no merit to this argument.

The second ruling McCarty challenges as cumulative error is

that the district court improperly overruled defense counsel's

objection to witness Jan Mickelberg's photo identification of

McCarty. At trial, defense counsel argued that the photographic

spread was not admissible because:

Ms. Mickelberg stated that the photograph of Paul

Martin McCarty resembled the facial structure and the
22

age of the individual whom she had seen in the

neighborhood -- in her neighborhood on the evening of

February 11th of 1993. Ms. Mickelberg didn't recall

that the individual's hair in the photograph was

different in view of the fact that the person she saw

the hair was combed more in a downward fashion as

opposed to that in the photograph.

The district court allowed admission of the photographs used in

Mickelberg's identification. During her testimony, Mickelberg

did note distinctions between the man she observed on February

11, 1993 and the man who sat before her as the defendant at

trial. The jury heard testimony that, when shown the

photographs, Mickelberg selected one picture in the photographic

spread (McCarty's) and indicated that it looked like the man she

saw, but that there were some differences. McCarty cites no

authority for his assertion that Mickelberg's testimony renders

the photographic spread inadmissible. We find no error in this

district court ruling.

Having found no error, we accordingly find no merit to

McCarty's contention that these rulings constitute cumulative

error.

ADMISSION OF THE AFFIDAVIT

McCarty asserts that the district court erred in allowing

admission of the affidavit into evidence. The record reflects

that the affidavit was admitted for the limited purpose of

allowing the Government to refer to it or to read selected

portions during witness testimony. However, because there is a

statement in the affidavit that McCarty was on parole from

Louisiana for simple burglary, the district court stated that the
23

affidavit was not to be presented to the jury. McCarty contends

that "the record of the bench conference does not reflect that

the court's clerk was present at the conference. There is,

therefore, no reason to assume that it was not given to the

jury." He requests a reversal of his conviction due to this

alleged error, or "at least a hearing to determine whether the

jury saw the affidavit." 

McCarty has cited, and we have found, no statutory or

jurisprudential authority for his contention that these

circumstances either constitute reversible error or require a

remand for further inquiry. The record gives no indication that

the district court's instruction regarding the affidavit was

violated. McCarty also reasserts the allegations of false

statements and material omissions in the affidavit as discussed

above regarding probable cause to issue the search warrant. The

record does not support his allegations of false statements or

material omissions. McCarty's request is denied.

SENTENCING GUIDELINES

McCarty contends that he was improperly given a U.S.S.G.

2B3.1(b)(2)(C) five level enhancement for possession of a weapon

during the Sunburst Bank robbery.

A district court's application of the sentencing guidelines

is reviewed for legal correctness de novo. However, its factual

findings are reviewed for clear error. U.S. v. Wimbish, 980 F.2d

312, 313 (5th Cir. 1992), cert. denied, --- U.S. --, 113 S.Ct.

2365, 124 L.Ed.2d 272 (1993); U. S. v. Smallwood, 920 F.2d 1231
24

(5th Cir. 1991), cert. denied, -- U.S. --, 111 S.Ct. 2870, 115

L.Ed.2d 1035 (1991). 

McCarty's argument amounts to an assertion that there was

insufficient evidence upon which to base this enhancement because

"[t]he only verification for this was contained in the inherently

suspect testimony of Alan Lucero to the effect that Mr. McCarty

told him that he left a .38 in the Thunderbird that he had the

gun as a backup." McCarty correctly points out that the finding

of the gun in the Thunderbird does not, in and of itself,

establish that McCarty possessed a gun at the time of the

offense. However, viewing the evidence as a whole, this factual

finding by the district court is not clearly erroneous. 

Accordingly, we do not disturb the district court's application

of U.S.S.G. 2B3.1(b)(2)(C).

McCarty next contends that he was improperly given a

U.S.S.G. 2B3.1(b)(2)(A) seven level enhancement for the discharge

of a weapon in connection with the Magnolia Federal Bank robbery. 

As with his previous argument, this argument amounts to an

assertion that there was insufficient evidence upon which to base

this enhancement. Bruce Dent, the Magnolia Federal Bank customer

who chased McCarty outside the bank, testified that when he saw

McCarty stop and begin to search the black bag, he hid between

nearby cars. Dent stated that McCarty pulled out a gun and fired

shots, but on cross examination stated that he assumed that

McCarty had retrieved a gun from the bag and fired the shots he

heard. McCarty asserts that this testimony, alone, was
25

insufficient to support this enhancement. He notes that no spent

casings were found and no verification that shots were fired. We

disagree.

The evidence contained more than Dent's testimony. There

was also the following evidence: the bank robber had brandished a

firearm in the bank; the .45 that was recovered from the stolen

Lincoln, along with the typewriter, wig, and other attire worn by

the bank robber; McCarty's statement to Lucero that he had used

the .45 during the Magnolia bank robbery; and the money found

where the bank robber had stopped and emptied out some of the

bag's contents. On this record, we find no clear error in the

district court's application of this sentencing guideline.

McCarty also contends that the district court used the wrong

amount in calculating the loss to the Magnolia Federal Bank. He

asserts that the district court failed to take into account the

$8,000 that was immediately recovered. Thus, according to

McCarty, he should not have received the one point enhancement

under U.S.S.G. § 2B3.1(b)(6)(B). This argument is meritless. 

The § 2B3.1(b)(6)(B) valuation of loss is described in the

application notes to § 2B1.1. See Application Notes, § 2B3.1. 

"Loss" means the value of the property taken, damaged, or

destroyed. Application Notes, § 2B1.1. There is no requirement

that this amount be offset by the amount recovered, for the

purposes of determining the offense level. The district court

did not err in considering the full $13,816 taken in the Magnolia

Federal Bank robbery in applying the loss provision of § 2B3.1.
26

DOUBLE JEOPARDY

Finally, McCarty asserts that his convictions for violation

of 18 U.S.C. §§ 2113(a) and (d), and 18 U.S.C. § 924(c)(1), when

combined with the U.S.S.G. 2B3.1(b)(2)(A) seven level

enhancement, constitutes double jeopardy. As support for this

assertion, McCarty cites Simpson v. United States, 435 U.S. 6, 98

S.Ct. 909, 55 L.Ed.2d 70 (1978), Busic v. United States, 446 U.S.

398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980), and McLain v. United

States, 643 F.2d 911 (2nd Cir. 1981) (which relies on Simpson and

Busic). However, this court has stated that the 1984 amendment

to 18 U.S.C. § 924(c) statutorily overruled Simpson and Busic. 

See U.S. v. Holloway, 905 F.2d 893, 894 (5th Cir. 1990). Where

Congress authorizes cumulative punishments for even the same

offense, the Double Jeopardy Clause of the Fifth Amendment is not

offended. Holloway, Id., citing Missouri v. Hunter, 459 U.S.

359, 367, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Congress

authorized the penalties to which McCarty was sentenced. These

penalties were likewise taken into consideration in the drafting

of U.S.S.G. 2B3.1(b)(2)(A) We find no merit to McCarty's

assertion of double jeopardy. 

CONCLUSION

For the foregoing reasons, McCarty's convictions and

sentences are AFFIRMED.