The Honorable Stephen M. Reasoner, United States District Judge for th e 1 Eastern District of Arkansas.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1162

_____________ United States of America, *
* Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas. Stephanie R. Nichols, *
* Appellant. *

_____________ Submitted: May 14, 1998 Filed: August 7, 1998

_____________ Before BOWMAN, Chief Judge, HEANEY, and HANSEN, Circuit Judges.

_____________ BOWMAN, Chief Judge. Steph anie R. Nichols was convicted of conspiracy to commit bank robbery i n violationof 18 U.S.C. §§ 371, 2113 (1994 & Supp. II 1996). The District Court 1

sen tenced her to thirty months in prison. She appeals both her conviction and he r sentence. We affirm.-2- I.

Nichols fi rst claims that the evidence is insufficient to sustain her conviction

. The three elements that must be pro ved in order for a jury to find a defendant guilty of conspiracy are "an agreement to achieve some il legal purpose," defendant's knowledge of the a greement, and that defendant "knowingly became a part of the conspiracy. " United States v. Ortiz , 125 F.3d 630 , 633 (8th Cir. 1997) (quoted cases omitted), cert. denied , 118 S. Ct. 1087 (1998). Nichols conte nds that there is insufficient evidence of her knowing participation in the conspiracy, that is, of her "criminal intent." Brief of Appellant at 6.

On ap pellate review of a challenge to the sufficiency of the evidence, w e consider the evidence in the light most favorable to the guilty verdict. See Unite d States v. Moore , ___ F.3 d ___, ___, Nos. 97-2603, 97-2605, 1998 WL 337961, at *1 (8t h Cir. June 26, 1998). The government receives the benefit of all reasonabl e inferences that may be drawn from the evidence. See United States v. Jorgensen , ___ F.3d ___, ___, Nos. 96-2939, 96-2940, 96-2941, 96-2942, 96-3064, 1 998 WL 224032, at *2 (8th Cir. May 7, 1998). Keeping these rules in mind, we begin with a recitation of the evidence that was presented at trial.

On April 2 1, 1997, Mark Crockett, a confidential informant working with th e FBI, called his cousin Robert Watkins to set up a drug deal. Crockett was workin g with the FBI in hopes of receivinga reduced sentence on a charge of possessing crack cocaine. (He also later received monetary compensation for his assis tance in this case.) Cr ockett, who lived in West Helena, Arkansas, placed the call from the FBI office in West Memph is, Arkansas, to Nichols's home in St. Louis, Missouri, where Watkin s was staying. The call was monitored, with Crockett's consent, by Special Agent John Hazen. During the conversation, Wa tkins said that he wanted to rob the "round bank" in West Helena, which Crockett knew to be the First Nation al Bank of Phillips County, West Helena branch (the Bank). On May 6, 1997, Watkins called Crockett and spoke-3-

again about robbing the Bank. Watkins said his girlfriend--Nichols--would be renting a car, and Nichols and Watkins would dri ve from St. Louis to West Helena that day to meet wi th Crockett and plan the robbery. In fact, Nichols did rent a Toyota fro m Enterprise Leasing Comp any in St. Louis on May 6, and she drove it to Arkansas that evening, with Watkins as her passenger.

Around midnight on May 6, Nichols and Watkins arrived in West Helena, and

wen t to Crockett's residence. Into the early morning hours of May 7, the thre e discusse d robbing the Bank, among a variety of other topics. Crockett recorded th e
conver sation, which went on for over two hours, with a device Hazen had given him. A redacted and considerably shortened version of the recording was played for the jury at trial. Nichols actively participated in the conversation, and volunteered som e suggestions pertinent to carrying out the plan: rob the Bank in the morning when fewer peop le were about, and when the tellers would have more cash and fewer checks ; identi fyand locate the Bank manager, who would have access to the cash; wear disguis es, such as a curly wig, baseball cap, or gold tooth; use mace on Ban k employees to facilitate the getaw ay and to blind the victims and prevent identification. There also was some discussion, in which Nichols participated, regarding a getaway vehicle. The possibility of stealing a car for that purpose was mentioned, as was the feasibility of using the car Nichols had rented.
The next morning, May 7, around 8:00 a.m., with Nichols driving the rental car and Watkins and Crockett as pas sengers, the three "cased" the location of the planned robbery, driving by the front and back of the Bank. Nichols then parked the car at a Wal-Mart store. She initi ally stayed with the car and then at some point went into the store, as Watkins and Crockett walked over to the Bank to take a closer look. The trio then drove to Helena "to see who was out, to try to purchase a gun." Trial Transcript at 44 (testimony of Crockett). In the meantime, Hazen had arrived in West Helen a fromWest Mem phis, and set up surveillance at the Bank. (Crockett had called hi m
early that morning to alert him to the plans to case the Bank.) Nichols, Watkins, and-4-

Crockett returned to West Helena and drove by the Bank again around 10:30 a.m., a drive-by Hazen h ad instructed Crockett to arrange. Nichols then took Crockett home, and she and Watkins went to Radio S hack to get frequencies for police scanners. That night, Watkins was arrested while in the rental car with Crockett. Later, Nichols was arrested at Crockett's residence.

After he r arrest, Nichols made several admissions to Hazen. She identified a s hers the telephone number that Crockett had used to call Watki ns, and admitted that she had ren ted the car in which she and Watkins had traveled to West Helena. Sh e acknowledged that s he had heard Watkins and Crockett talking about the robbery, but she said "that she would be too scared to rob the bank." Trial Transcript at 7 3 ( testimony of Hazen). She also admitted driving the car when the three surveilled the Bank, and said Watkins and Crockett had been considering the next day f or the robbery.

We will re verse Nichols's conviction on the ground that the evidence of he r knowing participation in the conspiracy is insufficient only if a reasonable jury, afte r hearing all the evidence, woul d have entertained a reasonable doubt about whether she knowingly joined the conspiracy. See Moore , 1998 WL 337961, at *1. "This standard is a strict one, and a jury verdict should not be overturned lightly." Jorgensen , 1998 WL 22 4032, at *2 (quoting United States v. Sykes , 977 F.2d 1242, 1247 (8th Cir. 1992)).
We conclude the evidence ag ainst Nichols is sufficient to convince a reasonable jury, be yond a reasonable doubt, that Nichols knowingly became a part of th e conspiracy. She obviously knew what Watkins was about, and in fact drove with Wat kins to West Helena, in a car she had rented, to finalize the plans for the robbery. She freel y offered her thoughts and suggestions on how the conspirators could avoi d identification and apprehension, including recommen ding the use of particular disguises and mace. She a ctively participated in casing the Bank--indeed she drove the car pastThe government contends that Nichols did not merely forfeit her objection, but 2 affirmatively waived it. We doubt that is so, but we do not address the questio n because we conclude there is no plain error.
-5- the Bank several times so that Watkins could have a close look--and in procuring the pol ice scanner frequencies. There is no dispute that the evidence establishes a conspiracy to rob the Bank, and that Nichols knew all about it. Once those elements

were p roved, "even slight evidence linking" Nichols to the conspiracy is sufficient t o est ablish that Nichols was a co-conspirator. Ortiz , 125 F.3d at 633. The government produced more than "slight evidence" here. We hold that the evidence of Nichols' s knowing participation in the conspiracy to commit bank robbery is sufficient to sustain her conviction of conspiracy as charged.

II.
Nichols next argues that the District Court erred in playing only the redacted tape recording of the conversation that took place in the early morning hours of May 7, 1997. Both the original and the redacted recordings, and the transcri pts of both, were admitted into evidence, but only the short version was played for the jury. The jurors were well aware that they heard an abbre viated version of the discussion. See Trial Transcript at 60-61 . Nichols now contends that the jury should have heard the entire conversation, but Nichols's trial counsel did not objec t to the playing of the redacted version or to the offer of that recording as ev idence, nor did he ask that the original recording be played in its entirety or in part. Because the District Court was not given the opportunity t o address t he issue, we will reverse only if the failure to play the unredacted recordin g resulted in plain error. See United States v. Turner , 104 F.3d 217, 22 1 (8th Cir. 1997). 2 That is, Nichols must "show tha t (1) the court committed an error; (2) the error is clear under current law; and (3) the error affects [her] substantial rights." Id.-6-

Nich ols argues that the tape recording of the complete conversation "i s exculp atory in nature because the conversation is not lucid but rather chaotic an d incoherent." Brief of Appellant at 18. It is true that some of the words spoken ar e unintelli gible, as the transcriber noted, but the conversation is far from "chaotic an d incoherent." Moreover, even if it were as confu sing as Nichols contends, we fail to see how t hat would render the recording exculpatory. We have listened to the entir e original recording, and most of the inaudible portions of the conversation consist of a word or two or a short phrase, and they do not affect the flow of the conversation or the listener's understanding of the gist of the discussion. At best, we think the jury might have found that the parts of the conversation that cannot be under stood made the overall recording annoying to listen to, but not in any way exculpatory.

Nic hols also contends that the redacted version of the recording takes he r "isolated comments out of context" and "gives the impression that Nichols dominated the conversation." Brief of Appellant at 18, 19. The redacted tape does focus th e listener's attention on Nichols's participation i n the conversation, and specifically on the times when the topic wa s the plans for the robbery. But Nichols was the defendant on trial, not Crock

ett or Watkins, so it stands to reason that the evidence would show her invo lvement

in the conspiracy and would not concentrate on proving the guilt o f

someo ne else. Further, it is of no consequence to Nichols's involvement in th e conspiracy that someone else may have had more to say about the robbery during the conversation than she did (and in any event we are not convinced that is an accurat e repre sentation of the conversation). Any differences in the co-conspirators' relativ e participation in

the planning do not diminish Nichols's active and willing collaboration in the conspiracy. Also, having heard the entire recording, we can say with certaint y tha t Nichols is mistaken when she states that "[a]ll of what Nichols said wer e spontaneous responses to what Crockett and Watkins discussed." Brief of Appellant at 29. As just one example, the idea to use mace to disable Bank employees wa s entirely Nichols's own.-7-

Further, we have considered the portions of the unredacted recording that Nichols argues are actually exculpatory. We think that the exculpatory content of those parts of the con versation is nil, as they must be taken out of context and unreasonabl e infe rences must be drawn in order for the exchanges to be characterized a s "exculpatory."

We con clude that there was no error in the District Court's failure to play th e enti re recording for the jury sua sponte. Even if there was error, it was not erro r "seriously affect[ing] the fairness, integrity or public reputation" of the trial, given the unrebu tted evidence of Nichols's involvement in conspiring to rob the Bank. Unite d States v. Olano , 507 U.S. 725, 736 (1993) (quoting United Sta tes v. Atkinson , 297 U.S. 157, 160 (1936)) (alteration by this Court).

III.
Finally, Nich ols challenges her sentence. She claims the District Court erred in failin g to give her a two- or three-level § 3B1.2 adjustment to her base offense leve l under the Sentencing Guidelin es for her mitigating role in the offense, because "[t]here is no substan tial evidence that she was going to participate directly in the robbery o r drive an y getaway car." Brief of Appellant at 30. Trial counsel did not object t o Nichols's presentence report, which made no mention of lesser participation in th e conspiracy on the part of Nichols, nor did he seek an adjustment under § 3B1.2 from the District Court during sentencing. "Therefore, we review for plain error resulting in a miscarriage of justice." United States v. Jones , ___ F. 3d ___, ___, Nos. 97-1344, 97- 2235, 1998 WL 264136, at *3 (8th Cir. May 27, 1998).

On this record there simply was no basis to adjust Nichols's base offense leve l for m inimal or minor participation. She was neither "plainly among the least culpable of those involved in the conduct" (minimal role) nor "less culpable than most othe r participants" (minor role). U.S. Sentencing Guidelines Manu al § 3B1.2 comment (nn.1,We need not consider this argument raised for the first time in Nichols's reply 3 bri ef. See United States v. Wade , 111 F.3d 602, 603 n.3 (8th Cir. 1997). We do so, howev er, because we think Nichols has unfairly represented the District Court' s comments and we wish to set the record straight.
-8- 3) ( 1995). "Whether a downward adjustment is warranted is determined not only b y comparing the acts o f each participant in relation to the relevant conduct for which the participant is held accountable, but also by measuring each participant's individual acts and relative culpability against the elements of the offense." United States v. PadillaPena , 129 F.3d 457, 471 (8th Cir. 1997), cert. denied , 118 S. Ct. 2063, 2064 (1998). As we detailed supra

Part I, Nichols was invo lved in virtually all of the acts undertaken in furtherance of the conspiracy: renting the car and driving to West Helena, Arkansas, the Bank's location, to finalize plans for the robbery; casing the Bank; driving to Helena in search of a gun to purchase; and acquiring police scanner frequencies. He r "involvement was not an isolated unsubstantial instance." United States v. Alaniz , Nos. 97-3189, 97-3299, 97-3300, 97-33 95, 97-3604, 97-3605, 1998 WL 331282, at *6 (8th Cir. June 2 4, 1998). Moreover, we reiterate that Nichols voluntarily and activel y parti cipated with Watkins in conspiring to carry out the robbery; whether or to wha t extent she would have parti cipated in the actual robbery, had it occurred, is immaterial to her culp ability for conspiring to commit bank robbery. With this evidence, w e cannot say that Nichols would have been entitled to a n adjustment for minimal or minor participation, even had she sought one. There was no error here, and certainly no plain error resulting in a miscarriage of justice.
Nichols argues in her reply brief th at "plain error has been satisfied" because the Distri ctCourt mistakenly believed it could not "depart downward in the sentence. " Reply Brief a t 7. She bases her argument on the court's comment when addressin g 3 Nichols that "I think there is a very good chance that this tended to b e more of a joyride, andmaybe in your mind you never thought a bank robbery was ever going to occur." Sentencing Transcript at 5. But, as the court itsel f noted, this factual scenario proposed by the court, which also apparently was Nichols's defense to the charge of-9-

conspir acy, goes to the question of guilt, a jury issue, and has little if anything to d o with whether Nichols was a minimal or minor parti cipant in conspiring to rob the Bank.
The court also said, "Quite frankly, I wish I had a basis for a downward departure in this case . . . ." Id. at 6. Nichols argues that this comment proves that the cour t believedit could not give her an adjustment under § 3B1.2 for a mitigating role in the offense. We disagree. Judge Reasoner is an experienced trial judge, well-versed i n application of the Sentencing Guidelines, and ha s applied the § 3B1.2 adjustment in the past. See , e.g. , United States v. Lopez , 42 F.3d 463, 469 (8th Cir. 1994). There can be no do ubt that the judge was fully aware of his authority to give Nichols a n adjus tment for minimal or minor participation if he thought it was warranted. That he felt he had no basis , as he said, to de part (a term of art under the Guidelines) is distinct from a belief that he lacked authority to adjust the base offense level for Nichols's role in the conspiracy under § 3B1.2. Clearly he thought the minimum guidelines rang e sentence of thirty months was excessive, but his expression of that feeling in no wa y demonstrates that he believed he was without authority to make a do wnward adjustment in Nichol s's base offense level for a mitigating role in the conspiracy. The judge' s comments reflect no error of any kind.

We hold that the District Court did not err in failing to act sua sponte to adjust Nichols's base offense level for a mitigating role.

IV.
The judgment of the District Court is affirmed.
A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.