## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-2992

___________

United States of America, *

*

Appellee, *

*

v. *

*

Kenneth Coleman, *

*

Appellant. *

___________ Appeals from the United States

No. 02-2994 District Court for the

___________ Eastern District of Missouri.

United States of America, *

*

Appellee, *

*

v. *

*

Andre Worthy, *

*

Appellant. *

___________

No. 02-3147

___________

United States of America, *

*

Appellee, *1 The Honorable E. Richard Webber, United St ates District Judge for the

Eastern District of Missouri.

-2- *

v. *

*

Orlando Willis, *

*

Appellant. *

___________

Submitted: June 9, 2003

Filed: November 18, 2003

___________

Before MELLOY, HANSEN, and SMITH, Circuit Judges.

___________

SMITH, Circuit Judge.

Kenneth Coleman, Andre Worthy, and Orlando Willis were char ged with a

variety of counts arising out of a conspirac y to rob multiple banks. Following a jury

trial, appellants were convicted of all counts and sentenced to terms o f imprisonment

of 709 , 444, and 275 months, respectively. Appellants appeal a variety of the district

court's 1 rulings–including its refusal to suppress the results of a search warrant and its

denial of motions for alleged Franks and B ruton violations. They also appeal the

denial of two motions for mistrial and a sentencing determination. For the reasons

stated herein, we affirm.

I.

Appellants masterminded a series of five bank robberies in the St. Louis area

from December 1999 to June 2001. Each robbery followed the same modus operandi.

After the bank had closed, appellants would abduct at gunpoint the bank's

manager–ei

ther in the parking lot of the bank or from her home. Often they would-3-

restrain and hold hostage the bank manager's fa mily members or roommates. They

would then force the manager to open the bank's vaults and automatic teller machines.

During each of the robbe r ies, appellants wore ski masks or other disguises and

communicated in code with each other throu gh two-way radios. In total, they stole

approximately $1.2 million from various banking institutions.

During one bank robbery–a De c ember 8, 2000, robbery of the St. Louis

C ommunity Credit Union–a dye pack was accidently taken along with the currency.

When the robber left the ban k, the dye pack exploded onto some of the currency.

Later, some of the dyed currency was used to purchase two money or d ers at the

Grand-U-Buy convenience store and two cans of gun powder and shotgun-shell

primers at Graf's Reloading–a gun and ammunition shop.

On both occasions, an employe e of the store became suspicious and called the

police. At the gun shop, an o ff-duty police officer became so suspicious that he

further monitored the two men who made the purchase. He observed them leave in a

dark blue or

black customized van with Missouri license plate number 192-BMW or

192-MB W. License number 192-MBW was registered to Sheila Willis, Coleman's

aunt, and was listed as a dark blue conversion van. The money orders purchased at

the convenience store were later traced to a firearms s eller in Ducktown, Tennessee.

The money orders were used to purch ase two grenade launchers and three reloading

kits, deliverable to Kevin Willis (a Coleman alias) at 3116 Hickory Street.

After a failed bank robbery attempt on June 2, 2001, a confidential informant

("CI") came to the St. Louis Police Department ("SLPD") on June 5, 2001, and

informed the police that Coleman, Worthy, and possibly Willis were respon sible for

the string of bank robberies. The CI–who in turn received much of his information

from an anonymous source close to the appellants–advised the SLPD and the FBI that

the appellants were planning another robbery and th at they intended to murder

so meone while doing it. The CI advised them that Coleman lived at 5034 Bulwer

Avenue. The SLPD and the FBI then began independent investigations of Coleman,

Worthy, and Willis.-4-

Surveillance o f Coleman, Worthy, and Jacqueline Scott–Coleman's

girlfriend–confirmed much of the CI's and anonymous source's information. Coleman,

Worthy, and Scott were observe d coming and going from 5034 Bulwer Avenue and

appeared to be preparing for a bank robbery. Further investigations uncovered, among

other things: that Worthy's name was on the first floor utilities of the Bulwer Avenue

address; that on February 9, 2001, Scott had been arrested during an eviction from her

and Coleman's 3116 Hickory Street residence; that during the arrest police seized

drugs, drug paraphernalia, and weapons. In addition, records showed that Worthy was

on probation for a drug

crime and on parole for an armored car robbery, in which

Coleman was implicated but not charged.

As a result of the above information, SLPD Detective Wayne Klobe prepared

a warrant application and affidavit to search 5034 Bulwer Avenue. After reading the

affidavit of Klobe and of the CI, who appeared personally at the hearing, a Missouri

state court magistrate issued a warrant to search 5034 Bulwer Avenue. On the morning

of June 7, 2001, police executed that warrant. Earlier that night, Coleman and Worthy

were also arrested–C oleman in his dark blue conversion van; Worthy in his 1982

Pontiac Firebird. Police then searched Worthy, Coleman, and their cars. During these

searches much incriminating information was discovered–including a receipt for a "UStore It" locker in the name of Orlando Willis. Warrants for the U-Store It locker and

for othe r storage facilities were then obtained and more incriminating evidence was

discovered.

Willis was arrested and interviewed. During his interview, he made a number of

admissions to FBI Special Agent Eri c Simmons regarding the rental of the U-Store It

locker. Coleman, Worthy, and Willis were then indicted and charged with a variety of

counts, including

conspiracy to commit armed bank robberies (violating 18 U.S.C. §

371), attempted armed bank robbery (violating 18 U.S.C. §§ 2, 2113(a) and (d)), and

use of a firearm i

n relation to a crime of violence (violating 18 U.S.C. §§ 2, 924(c)).

At trial, the government introduced evide nce, which came from a variety of

sources–testimony of the managers of the banks, the results of crime scene

in vestigations, information seized after the searches, financial and cell phone records,2 In his brief Willis also argues that there was insufficient evidence presented to

sustain his conviction. We conclude this argument is without merit and affirm the

district court's ruling without further discussion. 8th Cir. R. 47B.

-5- other documentary evidence, and r esults of forensic testing. At one point, a redacted

portion of Willis's admission of his rental of the U-Store It locker was permitted–over

the objection of Coleman–to come into evidence.

On three relevant occasions through the trial, motions for mistrial were filed.

First, Coleman moved for a mi strial after Police Officer Darren Whitehorn, who

executed the search on 5034 Bulwer Avenue, testified about narcotics discovered

there. (The district court had previously ruled such tes timony inadmissible.) Coleman

then lodged a second motion after the government’s closing rebuttal argument, when

the government made a comment regarding a pote n tial witness–Phyllis Paige–and her

failure to testify. Finally, Coleman made a motion for mistrial when Willis's counsel

directly commented on who had re nted the U-Store It locker, why that person had

rented it, and who had requested that the person rent it. The district court–after issuing

curative instructions–however, denied each of these motions.

The jury returned a verdict of guilty on all counts for each par ty. The verdict

included a special finding that Coleman and Worthy had conspired to ro b five banks

and that Willis conspired to rob two banks. Based on that speci al finding, the district

court–pursuant to Sentencing Guidelines § 1B1.2(d)–treated each of the five bank

robberies as a s eparate count of conspiracy. Worthy objected, arguing that this

amounted to an improper expansion of his indictment. The district court denied that

motion and sentenced Coleman to 709 months, Worthy to 444 months, and W illis to

275 months. Coleman, Willis, and Worthy appeal. 2

II.

Appellants first challenge the district court's refusal to suppress the r esults of

the searches of Coleman's house and of the U-Store It locker. They initially argue that

the searches should have been suppressed because the warrants were not supported3 In thei r pro se briefs, Coleman and Worthy also attack that manner in which

the search warrant for Coleman's house was executed, arguing that the police violated

the "knock and announce" rule. Wilson v. Arkansas

, 514 U.S. 927, 934 (1995). This

argument was not addressed below; thus we revi ew it for plain error. M

cKeehan v.

Cigna Life Ins. Co. 344 F.3d 789, 793 (8th Cir. 2003). Having reviewed the record,

we find no plain error.

4 Willis and Worth y, however, lack standing to challenge the search of

Co l eman's house. United States v. Padilla

, 508 U.S. 77, 78 (1993). We will not,

therefore, addr ess the ancillary arguments they raise. Willis, however, also challenges

the search of the U-Store It locker. Because the locker was leased in his name, he has

standing to make this challenge. In his brief, however, he makes the same allegat ions

against the search of the locker as Coleman does for the search of his residence. Thus,

we will address them concurrently.

-6- by probable case. They additionally contend tha t the search of Coleman's house

should have been suppressed because the search warrant's supporting affidavit

contained deliberate or reckless falsehoods and omissions, which rendered the warrant

void under Franks v. Delaware , 438 U.S. 154 (1978).

A.

We first address Coleman's, Worthy's, 3 and Willis's 4 claim that the warrants to

search Colman's residence at 5034 Bulwer Avenue and the U-Store It locker were not-7-

supported by probable cause. Specifically , they argue that the warrants were invalid

because they relied upon the affidavit of Klobe, who based his affid avit upon double

hearsay–information he received from a CI that had been received from an anonymous

source. After the district court heard argument on this issue, it denied appellants'

motion. We revi

ew the denial of a motion to suppress de novo, but review the

underlying factual determinations for clear error, giving due weight to the inferences

of the district court and law-enforcement officials. Ornelas v. United States , 517 U.S.

690, 699 (1996).

For a search warrant to be valid, it must be based upon a judi cial finding that

there is probable cause, that is, a "fair probability" to believe that the listed items may

be found at the place to be searched. Illinois v. Gates , 462 U.S. 213, 232, 246 (1983).

Such a determination is to be based upon the "the totality of the circumstances." I d.

at 238. In other words, the task of the issuing magistrate is to make "a practical,

common- sense decision whether given all the circumstances set forth in the affidavit

before him, including the 'veracity' and 'basis o f knowledge' of persons supplying

hearsay information, there is a fair probability that contraband or evidence of a crime

will be found in a particular place." Id.

Appellants contend that Klobe's affidavit depends primarily on the information

of the CI (and his anon ymous source) and that without this information the warrant

fails. After reviewing Klobe's a ffidavit we conclude appellants' argument is without

merit. Even without the information from the CI, there existed probable cause for the

magistrate to have issued the warrants. The affidavit relies upon information

independently derived from at least three different sources–Klobe's own personal

investigation of the December 8, 2000, bank robbery; information he received from the

FBI; surveillance observations of Coleman, Worthy, and Scott at 5034 Bulwer Avenue

residence.

All of these facts–without th e information of the CI and his anonymous

source–provided the issuing magistrate with sufficient information that evidence of the-8-

bank robberies would have been found at 5034 Bulwer Avenue and at the U-Store It

locker. Gates

, 462 U.S. at 232. As a result, the district court correctly determined that

the magistrate had probable cause to issue these search warrants.

B.

Coleman and Willis also contend that the search of Coleman's residence at 5034

Bulwer Avenue should have been suppressed because Klobe’s supp orting affidavit

contained deliberate or reckless falsehoods and omissions in v iolation of F ranks. The

district court, however, found Klobe's affidavit truthful within the meaning of Frank s

and refused to hold a hearing on this issu e. We review the district court's factual

determinations on this issue for clear error. United States v. Reivich , 793 F.2d 957,

961 (8th Cir. 1986).

To prevail on a Frank

s challenge, Coleman and Willis must first establish that

Klobe deliberately or recklessly included a false statement in his warrant affidavit. 438

U.S. at 155–56. Alter

n atively, they may establish a violation if they prove that Klobe

deliberately or recklessly omitted a truthful statement from his warrant affidavit. United

States v. Searcy , 181 F.3d 975, 980 n.9 (8th Cir. 1999). If they demonstrate this and

the offensive content is "set to one side," they still must establish, however, th at "the

a ffidavit's remaining content" would be insufficient to establish probable ca use."

Franks

, 438 U.S. at 156. However, Coleman and Willis cannot establish that Klobe

recklessly included false statements or excluded true statements.5 Coleman and Willis question a number of Klobe’s affidavit statements, which

they claim are false, including the statements that: (1) "surveillance teams also observed

Kenneth Coleman operating [the blue van] on numerous occasions"; (2) "an extensive

crimin al record including drug violations, stolen property violations, and tampering

charges"; (3) that the blue van belonged to Scott. However, other than Coleman's and

Willis's allegations, they pro vide no proof that these statements are inaccurate, that

Klobe knew that the statements were inaccurate, or that there is not an alterative truthful

explanation. As a result, we will not consider them as potential Franks violations.

6 Coleman and Willis also raise a nu mber of omissions, which we will not

consider as Franks violations because other than Coleman's and Willis' s allegations,

there is no proof that Klobe ever knew of the existence of the omission. These alleged

omissions include: that Klobe misled the issuing judge by intentionally omitting the

facts that Carroll Davis described one of the two men who purchased the gun powder

-9- Coleman and Willis first raise a long list of statement s 5 included in Klobe's

affidavit, which they claim violate Franks

. Initially, they object to many of the

statements which were made in regard to the CI and the anonymous source. However,

as previously noted, there is sufficient probable cause to support the warrants without

these statements.

Coleman and Willis also object to Klobe's inclusion of the following: (1) the use

of the term "FBI sources" when Klobe knew that there was only one source; (2) the

use of the license plate number "192-BMW" when Coleman's actual plate number was

"192-MBW"; identifying that it was the owner of the gun store–not the off-duty police

officer–who provided Coleman's license-plate number. Assuming that the appe l lants'

construction of these statements is correct, they–at best–can be characterized as minor

discrepancies. A "minor discrepancy" in the wording of an officer's statement is not

sufficient under Franks to establ ish that the officer acted deliberately or recklessly in

making the statement. E.g.

, United States v. Frazier , 280 F.3d 835, 846 (8th Cir.

2002) (citing United States v. Searcy , 181 F.3d 975, 980 (8th Cir. 1999)).

Coleman and Willis al so object to numerous o missions from Klobe's report,

which they claim also violate Franks . Two of these omissions merit discussion. 6 First,as "part Hispanic"; that based on Charlotte Peak's description of the December 8,

2 000, robbers and the videotape from the bank, Klobe should have kno wn that

Coleman could not ha v e been one of the robbers and misled the issuing judge by not

disclosing this information; that someone in law enforcement ran Coleman's license

plate at 11:48 a.m. on June 6, 2001, and determined that Missouri plate 192-MBW was

registered to someone other than Coleman.

M oreover, two additional alleged omissions–that Coleman was not under the

influence of drugs when he was arrested during the late evening hours of June 6, 2001,

and that a female, not otherwise linked to Coleman, had passed dye-stained curren c y

at a Lowe's hardware store–are simply not relevant to the determination of whether

there was probable cause to search the 5034 Bulwer Avenue residence or to search the

locker. As a result, we will not consider them.

-10- Coleman and Willis argue that Klobe int entionally omitted the fact that the gun-store

owner–where Coleman and Willis allegedly purchased their gun powder and primer–

identified a nother man, Earl Bigelow, as the December 8, 2000, robber. While this is

true, Coleman and Willis have made no showing that Klobe omitted the information

with an intent to mislead. The most that the record reveals is t h at Klobe and the FBI

agent, who presented the identification photos to the gun-store owner, did not believe

that the gun-store owner had made a positive identification of the people who were in

his store. See United States v. Colkley

, 899 F.2d 297, 301 (4th Cir. 1990). At worst,

Klobe's conduct was negligent in his disclosure. However, F ranks does not apply to

negligent misrepresentations. United State s v. Schmitz , 181 F.3d 981, 986 (8th Cir.

1999).

Coleman and Willis add itionally complain that another of Klobe's omissions

violated Frank

s –the fact that the serial numbers from the recovered dye-stained

currency did not match the known serial numbers of the stolen money. However, this

omission was not intentionally misleading. Only four ser ial numbers of the entire

$210,590 stolen were even known. Thus, for the reasons stated, Klobe's affidavit was

truthful within the meaning of Franks , and the district court did not commit error when

it refused to hold a hearing on this issue.-11- III.

Next, Coleman argues that the government and Willis violated his Sixth

Amendment Confrontation Clause rights as construed by Bruton v. United States , 391

U.S. 123 (1968). In Bruton

, the Supreme Court held tha t the admission of a nontestifying defendant's statement that inculpated a codefendant, violated the latter's

Confron tation Clause rights, despite a curative instruction otherwise. I d. at 135–36.

Subsequent Supreme Court cases have held that Bruton i s not violated if the nontestifying defendant's statement only inculpates a codefendant inf erentially–through

linkage to other evidence. Richardson v . Marsh , 481 U.S. 200, 208 (1987). As a

result, Bruton violations may be avoided through redaction if a cautionary jury

instruction is given, if the redactions are neutral, and if they do not obviously directly

refer to the defendant. Gray v. Maryland , 523 U.S. 185, 196 (1998).

The district court denied Coleman's motion. We review under the harmless error

standard. United States v. Garcia

, 836 F.2d 385, 391 (8th Cir. 1987). On appeal,

Coleman argues that (1) the government's direct and Will is's cross-examination of

Simmons and (2) Willis's comments during his closing argument violated Bruton.

A.

Coleman first contests Simmons's testimony. Simmons testified to Willis's postarrest interview and to his rental of a U-Store It locker. During his interview, Willis told

Simmons that he rented the locker for Coleman. Willis also admitted that he filled out

and signed the lease form. Willis stated that Coleman, Scott, and he were in Coleman's

blu e van when they rented the locker. After he returned to the van, he gave the gate

code to Coleman. In an attempt to avoid a Bruton problem, the government orally led

Simmons in the questions concerning Willis's post-arrest in terview, substituting the

phrase "someone" for Coleman:

Q: Agent

Simmons, I’m going to ask you a few questions about the

statements made by Mr. Willis, and in respons e to my questions

I’m only looking for a yes or no answer, okay?-12-

A: Okay.

Q: With respect to renting the locker, did Mr. Willis i ndicate that he

had rented it for someone else who drove a blue van?

A: Yes.

Q: Did he indicate that someone else and Jackie Scott were with him

when it was rented?

A: Yes.

Q: Did Mr. Willis indicate th at he, meaning Mr. Willis, was the one

who filled out the lease on the rental of the locker?

A. Yes.

Q: And did Mr. Willis indicate that he chose the code to ge t into the

lot and gave that code to another person?

A: Yes.

This redaction is permissible under Bruto n and its progeny. R ichardson

, 481 U.S. at

208; Gray , 523 U.S. at 196. We see no difference in the facts of this case and our

decision in United States v. Logan , 210 F.3d 820 (8th Cir. 2000) (en banc). In Logan

,

we found no Bruton violation when the government substituted the phr ase "another

individual" for specific references to the non-declarant codefendant in connection with

an officer's oral testimony about the declarant's oral confession. Id. at 822. Moreover,

the district court issued a cur ative instruction. U nited States v. Edwards

, 159 F.3d

1117, 1125–26 (8th Cir. 1998). Therefore, the government's questioning of Simmons

did not violate Bruton

.

Coleman also argues that upon cross-examination of Simmons, Willis's counsel

violated Bruton

. However, like the government, Willis's counsel substitute d a neutral-13-

phrase ("person") for Coleman. Thus, for the same r eason stated above, Willis's

counsel did not violate Bruton

.

B.

We do, however, fin d a more serious problem with Willis's closing argument.

During that argument, Willis's counsel addressed the jury and stated:

Mr. Willis told the FBI, Special Agent Simmons, the same infor mation

and, according to the phone records, apparently Mr. Coleman called Mr.

Willis the day before, October 25, to ask him to rent a storage locker for

him. He said he would pick him up, he would take him to the facility and

gave him the money. [Willis then] went into [the locker office], filled out

the contract, signed the contract, and left.

Willis also argued that the evidence suggested that it was Coleman who requested

Willis to list Coleman's alias on the lease agreement's permission-to-enter list. Coleman

objected to this comment and moved for a mistrial. The district court denied the

mistrial, but gave a curative instruction. The government argues that the instruction was

sufficient to cure Willis's closing statement. However such a limiting instruction is not

c onstitutionally sufficient when "powerfully incriminating extrajudicial statements of a

codefendant, who stands accused side-by-side with the defendant, [was ] deliberately

sprea d before the jury in a joint trial." B ruton

, 391 U.S. 135– 36. Whether Willis's

statement in closing argument was this ty pe of "powerfully incriminating statement"

presents a difficult question.

We need not answer it, however, because even assuming that this statement

violated Bruton

, it was harmless beyond a reasonable doubt. It is well-established that

a Bruton error is subject to harmless-error analysis. Edwards , 159 F.3d at 1128. Thus,

we must consider "not what effect the constitutional error might generally be expected

to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in

the case at hand." Sullivan v. Louisiana

, 508 U.S. 275, 279 (1993). Thus, there is no

Bruton error when the erroneously admitted evidence i s "merely cumulative of other-14-

overwhelming and largely uncontroverted evidenc e properly before the jury." B rown

v. United States , 411 U.S. 223, 231 (1973). In this case, the government presented

overwhelming testimony to prove Coleman's guilt–the testimony of five bank

managers, evidence seized from various cars, Coleman's house, and from lockers, as

well as sub stantial forensic and documentary evidence. Thus, because Willis's

statement is cumula tive of the other overwhelming testimony against him, Coleman's

argument fails.

IV

.

Coleman next contends that the district court erred when it twice failed to

declare a mistrial. We review denials of a mistrial for an abuse of discretion. U nited

St ates v. O'Dell , 204 F.3d 829, 834 (8th Cir. 2000). Coleman argues that the district

court should have declared a mistrial when Whitehorn testified about Coleman's

involvement with narc otics and when the government made a statement during its

closing rebuttal argument.

A.

Coleman first contends that the distri ct court erred in denying his motion for a

mistrial after Whitehorn referenced narco t ics during his testimony. Prior to trial,

Coleman and the government formally agre ed that they would not introduce drug

evidence. At trial, however, while discussing the capture of several silencer books,

Whitehorn testified that police seized a "large quantity of narcotics." Coleman

objected.

When such a statement is introduced, the "prejudicial statement is ordinarily

cured by striking the testimony and instructing the jury to disregard the remark."

United States v. Muza

, 788 F.2d 1309, 1312 (8th Cir. 1986) (citation omitted). In this

case, after Coleman objected, the district court issued a curative instruction to the jury

and directed them that Coleman had nothing "to do with drugs." As a result, we "must

determine wit h fair assurance whether, in spite of the instruction, the verdict was

substantially swayed by the error." Id. (citations omitted).-15-

In making this determination, we apply a two-step analysis. First, we "examine

the trial context of the error, and the prejudice created th ereby . . . ." I d. (citation

omitted). We then juxtapose the prejudice "against the strength of the evidence of

appellant's guilt." Id. (citation omitted). If " there was substantial evidence of

appellant's guilt, any error in the admission of the statements [would be] harmless." Id.

at 1313 (citation omitted).

In this case, the prejudicial impact to Coleman from an improper reference to

narcotics was minimal. Whitehorn only m entioned drugs once. The district court

immediately issued a curative instruction and m inimized the importance of the drug

reference to the jury. Furthermore, there was substanti al, non-prejudicial evidence of

Coleman's guilt, which was introduced at trial. As noted previously, the government

proved its case with eye-witness testimony, documentary evidence, and circumstantial

evidence. This evidence–when compared with the single reference to drugs–leads us

to conclude that the district court did not err when it denied Coleman's first mistrial

motion.

B.

Coleman also argues that the district court erred when it denied his moti on for

mistrial after the government presented its rebuttal closing argument. During his closing

argument, Coleman questioned why Phyllis Paige, a person about whom many of the

witnesses had testified, was never called to testify. In its rebuttal argument, the

govern ment responded to that comment, noting that "Phyllis Paige wasn’t called by

anyone in this case. And the last time I checked, people in this country have a right to

refuse to answer questio ns and refuse from incriminating themselves." Coleman

objected and argued that it was an improper indirect comment against Coleman’s Fifth

Amendment right not to incriminate himself.

Prosecutorial misconduct in closing argument is grounds for a mistrial when "(1)

the prosecutor's remarks are in fact improper, and (2) the remarks prejudicially affect

the defendant's substantial rights so as to deprive the defendant of a fair trial." O’Dell

,7 Guidelines § 1B1.2(d) provides that a "conviction on a count char ging a

conspiracy to commit more than one offense shall be treated as if the defendant had

been convicted on a separate count of conspiracy for each offense that the defendant

-16- 204 F.3d at 834 (citation omitted). In this case, Coleman's argument fails because the

prosecutor’s remarks were not improper. It is a general rule that the prosecution shall

not directly co mment on a defendant's Fifth Amendment right not to testify. G riffin

v. California

, 380 U.S. 609, 612 (1965); Hoffman v. United States

, 341 U.S. 479,

486–87 (1951). The rule was not violated here because the rebuttal remark was a fair

response to Coleman 's suggestion that the government should have called Paige as a

witness and because the remark did not comment on Coleman's right to remain silent.

The remarks here referred to Paige's right to invoke the Fifth Amendment, not

Coleman's.

Coleman thus argues that the comment amounted to an indirec t comment on

Coleman's right not to testify. This argument is without merit. "The test to be applied

is whether the comment must have been clearly intended or be of such a nature that the

jury would naturally and necessarily view the comment as a reference to defendant's

failure to testify." United States v. Singer , 732 F.2d 631, 637 (8th Cir. 1984) (citation

omitted). Because Coleman cannot meet such a stringent t est, we conclude that the

district court did not commit error when it refused to declare a mistrial based upon the

comment.

V.

Finally, Worthy contends that the district court committed a sentenc ing error

that requires our reversal. Among other counts, Worthy was charged with one count

of conspiracy to commit bank robberies. However, this count only listed the overt acts

of two bank robber ies. Nevertheless, when Worthy was found guilty, the jury

specifically found th at he had participated in the conspiracy of five bank robberies.

Thus, three of the bank robberies were not listed within overt acts of his indictment.

Ba sed upon Sentencing Guidelines § 1B1.2(d), the district court then treated each of

the five bank robberies as separate counts of conspiracy. 7conspired to commit."

-17-

Worthy a rgues that he was improperly sentenced based upon five bank

robberies because the overt acts of the indictment only alleged his participation in two

bank r obberies. It is true that "after an indictment has been returned its charges may

not be broadened through amendment except by the grand jury itself." S tirone v.

United States

, 361 U.S. 212, 215–16 (1960). However, Worthy was charged with

conspiracy to commit multiple bank robberie s. In a charge of conspiracy, the

government is not limited to proof of the overt acts charged in the indictment, s ee

U nited States v. Dolan

, 120 F.3d 856, 866 (8th Cir. 1997); United States v . Lewis

,

759 F.2d 1316, 1344 (8th Cir. 1985), and a defendant may be held responsible for any

of the acts of the conspiracy. United States v. Cordova

, 157 F.3d 587, 597 (8th Cir.

1998). In this case, the five robberies fell within the temporal and substantive scope

of the conspiracy. As a result, Worthy's argument fails.

VI.

Thus, for the reasons stated herein, we affirm the judgment of the district court.

_______________________________