* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-20591

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CHRIS BROWN, JERMAINE WELLS, 

and

DERRICK CHISM,

Defendants-Appellants.

_________________________

Appeals from the United States District Court

for the Southern District of Texas

(H-97-CR-3-1)

_________________________

December 28, 1998

Before KING, JONES, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Chris Brown, Derrick Chism, and Jermaine Wells appeal their

convictions stemming from a bank robbery. Brown and Chism

challenge their convictions of (1) conspiracy to commit armed bank

robbery; (2) armed bank robbery; and (3) using a firearm during and

in relation to a federal crime of violence. Wells challenges his

conviction of conspiracy to commit armed bank robbery. Finding no
2

error, we affirm. 

I.

A.

In the presence of three employees and a customer, a bank was

robbed at gunpoint by three masked persons. One of the robbers

carried a pistol-grip shotgun, another a pistol, and the third a

garbage bag. On the basis of testimony from a number of witnesses,

the government arrested and charged Brown, Chism, Wells, and Bylan

Phoenix. 

First, the manager of a drug store located across the street

from the bank testified that he observed four black males sitting

in a car in the drug store parking lot observing the bank in a

suspicious manner. He telephoned the manager of the bank and

warned him about his suspicions. Later, the drug store manager

viewed a lineup and identified Wells and Phoenix as two of the

occupants of the vehicle.

Second, the bank manager testified that on the morning of the

robbery, a young black male had walked into the bank, obtained

account information and a brochure, and left. In a police lineup,

the bank manager tentatively identified Wells. 

Third, and most importantly, Phoenix testified, on behalf of

the government, that he had been friends with Brown, Chism, and

Wells and that they had planned and executed the robbery. Phoenix

testified that Wells’s job was to go into the bank and feign

interest in getting a loan while checking out the security system.

Originally, Wells was to sit in the car while the others went
3

inside, and sound the horn if anyone showed up. 

On the day of the robbery, they went to the bank and made the

final check but, because of the heavy flow of customers, decided

not to commit the robbery. They left the bank area and dropped

Wells off because he had a job interview. Approximately five hours

later, Brown, Chism, and Phoenix decided to rob the bank. Neither

Brown, Chism, nor Phoenix had any contact with Wells during this

five-hour period, and Wells was not with them when they committed

the robbery. The robbery proceeds were split equally among Brown,

Chism, and Phoenix. Wells received $100. Wells admitted to police

that he was in the bank on the day of the robbery and told the

others about the security in the bank.

Other witnesses corroborated aspects of the government’s case.

Records from a local gun store showed that Brown had purchased a

pistol-grip shotgun, and a bank teller testified that the robbers

had carried a similar weapon. A flea market merchant testified

that near the day of the robbery, he had sold some jewelry to

Brown.

B.

Brown, Chism, and Phoenix were charged with conspiracy to

commit armed bank robbery in violation of 18 U.S.C. § 371 (count

1S); armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d)

(count 2S); and using a firearm during and in relation to a federal

crime of violence in violation of 18 U.S.C. 924(c)(1) (count 3S).

Wells was indicted only on the conspiracy count. Brown, Chism, and
4

Wells pleaded not guilty and were jointly tried. Phoenix pleaded

guilty and testified for the government. The jury found the

defendants guilty on all counts.

II.

A.

Brown argues that he was denied effective assistance of

counsel. This is a mixed question of law and fact, subject to

de novo review. See Jones v. Jones, 1998 U.S. App. LEXIS 31379,

at *40 (5th Cir. Dec. 16, 1998); Salazar v. Johnson, 96 F.3d 789,

791 (5th Cir. 1996). Brown alleges that his trial counsel failed

to (1) file a motion for discovery; (2) file a motion to suppress;

(3) join in co-counsel’s challenge for cause of an arguably biased

and equivocating juror; (4) discredit Phoenix during crossexamination by demonstrating clear inducement to lie under the

terms of his plea agreement; (5) move for acquittal after the close

of the government’s case; (6) object to the jury instructions; and

(7) file a motion for new trial and a notice of appeal.

Generally, there are two components to an ineffective

assistance of counsel claim. The defendant must show that his

counsel’s performance was deficient and that this deficient

performance prejudiced his defense. Strickland v. Washington,

466 U.S. 668, 687 (1984). In some instances, however, prejudice is

presumed. “Actual or constructive denial of the assistance of

counsel altogether is legally presumed to result in prejudice.”

Id. at 692.
5

1.

Brown relies on United States v. Cronic, 466 U.S. 648, 654

n.11 (1984), in which the Court stated, “In some cases the

performance of counsel may be so inadequate that, in effect, no

assistance of counsel is provided.” “If no actual 'Assistance'

'for' the accused’s 'defense' is provided, then the constitutional

guarantee has been violated.” Id. at 654. Brown also relies on

Tucker v. Day, 969 F.2d 155 (5th Cir. 1992), in which defendant’s

counsel remained silent throughout the re-sentencing hearing. The

court found a constructive denial of counsel and presumed prejudice

because “Tucker was unaware of the presence of counsel, counsel did

not confer with Tucker whatsoever, and as far as the transcript is

concerned, counsel made no attempt to represent his client’s

interests.” Id. at 159. Finally, Brown points to United States v.

Taylor, 933 F.2d 307 (5th Cir. 1991), in which the court presumed

prejudice because the defendant had requested counsel at his

sentencing hearing and was granted only standby counsel.

Unless a defendant can show that his case is squarely governed

by Cronic, he must rebut a presumption that the analysis for

determining a Sixth Amendment violation is governed by Washington.

See Woodard v. Collins, 898 F.2d 1027, 1029 (5th Cir. 1990). In

Martin v. McCotter, 796 F.2d 813, 820 (5th Cir. 1986), we explained

that a constructive denial of counsel under Cronic occurs in “'only

a very narrow spectrum of cases where the circumstances leading to

counsel’s ineffectiveness are so egregious that the defendant was

in effect denied any meaningful assistance at all.'” (quoting
6

Chadwick v. Green, 740 F.2d 897, 901 (11th Cir. 1984)). The court

explained that where an attorney’s efforts provided the defendant

with “some meaningful assistance,” the defendant must allege and

prove prejudice. Craker v. McCotter, 805 F.2d 538, 543 (5th Cir.

1986). In this circuit, “bad lawyering, regardless of how bad,

does not support the [Cronic] presumption; more is required.”

McInerney v. Puckett, 919 F.2d 350, 353 (5th Cir. 1990) (emphasis

in original).

Brown cannot demonstrate that he was not provided with

meaningful assistance at trial. His counsel actively participated

in the jury selection process by questioning some of the jurors in

response to the court’s general questioning. Counsel questioned

the credibility, on cross-examination, of all the government’s

witnesses who implicated Brown, including the officers who took his

statements and prepared the lineup, and joined in the objections

made by co-counsel to the jury instructions. Trial counsel

presented closing argument on Brown’s behalf, pointing to evidence

of other suspects who were not placed in the lineup, to the denial

of the crime by everyone arrested except Phoenix, to the weaknesses

in Phoenix’s testimony and his motive to fabricate, and to the

allegedly suggestive nature of the lineup. 

This is unlike the circumstance in Tucker, in which counsel

failed to provide any assistance, or in Taylor, in which the

defendant was provided only with stand-by counsel. Brown was not

constructively denied counsel. Therefore, his ineffective

assistance claim does not qualify under Cronic, and there is no
7

presumption of prejudice. 

2.

Absent a presumption of prejudice, a defendant “is required to

establish both (1) constitutionally deficient performance by

counsel and (2) actual prejudice as a result of counsel’s

ineffectiveness.” Moody v. Johnson, 139 F.3d 477, 482 (5th Cir.),

cert. denied, 119 S. Ct. 359 (1998). “Failure to prove either

deficient performance or actual prejudice is fatal to an

ineffective assistance claim.” Carter v. Johnson, 131 F.3d 452,

463 (5th Cir. 1997) (citing Washington, 466 U.S. at 687), cert.

denied, 118 S. Ct. 1567 (1998).

Brown concedes that, given the state of the record, he cannot

conclusively prove prejudice. He argues, however, that because he

is not entitled to counsel in a proceeding under § 2255, he was

prejudiced by counsel’s failure to develop a record showing

counsel’s own ineffectiveness so that the claim could be reviewed

on direct appeal. 

Brown argues that such a record should have been made in a

motion for new trial. Trial counsel would have been limited to

making such a motion within seven days after the verdict, because

evidence of ineffective assistance of counsel does not constitute

newly discovered evidence under FED. R. CRIM. P. 33. See United

States v. Medina, 118 F.3d 371, 372 (5th Cir. 1997). Therefore,

Brown alleges that his attorney’s failure to challenge his own

performance in a motion for a new trial is “constitutionally
8

deficient” under Washington.

To prove deficient performance, the defendant must show that

“his counsel’s actions 'fell below an objective standard of

reasonableness.'” Pratt v. Cain, 142 F.3d 226, 231 (5th Cir. 1998)

(quoting Washington, 466 U.S. at 688). There is a strong

presumption that counsel’s performance falls within the wide range

of reasonable professional assistance, and “[a] conscious and

informed decision on trial tactics and strategy cannot be the basis

for constitutionally ineffective assistance of counsel unless it is

so ill chosen that it permeates the entire trial with obvious

unfairness.” Pratt, 142 F.3d at 231 (quoting Green v. Johnson,

116 F.3d 1115, 1122 (5th Cir.), writ of habeas corpus denied,

118 S. Ct. 274 (1997)). 

Because Brown’s attorney participated actively in the trial in

selecting jurors and cross-examining witnesses, the attorney acted

reasonably in deciding not to file a motion for a new trial based

on his own ineffectiveness. Moreover, an attorney’s decision not

to challenge his own performance at trial, especially within seven

days of the verdict, falls within the realm of reasonable

professional judgment. We cannot say that, in this case, trial

counsel’s failure to challenge his own performance falls “below an

objective standard of reasonableness.” Pratt, 142 F.3d at 231.

Therefore, Brown has failed to show the deficient performance on

the part of his trial counsel under the first prong of the

Washington test. 

Brown concedes that he cannot meet the Washington test for his
9

other alleged errors, because the record has not been sufficiently

developed. Therefore, the only prejudice he alleges requires us to

find that the attorney’s failure to challenge his own performance

constitutes deficient performance. Because Brown cannot meet the

“deficient performance” prong of the Washington test, we need not

reach Brown’s argument that he is prejudiced by being limited to

pursuing his claim in a proceeding during which he is not

guaranteed the right to counsel. Because the record is not

sufficiently developed to allow this court fairly to evaluate the

merits of an ineffective assistance claim, we dismiss the claim

without prejudice to his right to raise it in a 28 U.S.C. § 2255

motion. See United States v. Gaytan, 74 F.3d 545, 557 (5th Cir.),

cert. denied, 117 S. Ct. 506 (1996).

B.

Chism contends that the evidence is insufficient. Proof of a

conspiracy does not require direct evidence; an agreement may be

inferred from circumstantial evidence, such as concert of action.

United States v. Schmick, 904 F.2d 936, 941 (5th Cir. 1990). If a

conspiracy is to be proved by circumstantial evidence, each link in

the inferential chain must be plainly shown. United States v.

Galvan, 693 F.2d 417, 419 (5th Cir. 1982). To establish the

offense of bank robbery, the government must prove that (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
10

(6) belonging to or in the care, custody, control, management, or

possession of (7) a bank. United 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. See 18 U.S.C. § 2. To prove aiding and

abetting, the government must show that the defendant (1)

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

(3) sought by action to make it succeed. United States v. Salazar,

66 F.3d 723, 729 (5th Cir. 1995). 

The evidence of Chism’s guilt consisted of the following:

(1) co-conspirator Bylan Phoenix identified Chism as the man who

brought the garbage bag; (2) Chism was arrested with Wells and

Brown, two people identified as being involved in the robbery; and

(3) when arrested, Chism was wearing gold jewelry, and the

identified members of the bank robbery had purchased gold jewelry

shortly after the bank robbery. Chism contends that each of these

facts can be explained. 

First, Chism attempts to discredit Phoenix’s testimony on the

ground that Phoenix was a convicted felon who had a motive to lie

to reduce his sentence. Chism contends that Phoenix’s testimony

was not corroborated by any other evidence. No witness before,

during, or immediately after the robbery identified Chism as one of

the robbers. Neither McCampbell nor Olquin identified Chism as one

of the robbers. Chism contends that Phoenix, in an attempt to

protect a friend, could have substituted Chism’s name for that of

the real bag man.
11

Second, Chism contends that the fact that he was arrested with

members of the conspiracy some days later shows nothing more than

an association with members of the conspiracy, not participation in

the robbery. Proof of “mere association” with persons involved in

criminal activity is insufficient, by itself, to establish

participation in a conspiracy. Galvan, 693 F.2d at 420. 

Third, Chism contends that the fact that he was wearing gold

jewelry shows his vanity and not criminal behavior. The jewelry

salesman recognized Chism as someone who had been to his flea

market but did not say when he had seen him. The salesman

produced no receipts showing that Chism had purchased jewelry from

him. Chism contends that this evidence proves, at best, that Chism

and one of the bank robbers shopped at the same flea market. 

Although there could be alternative explanations for the

evidence implicating Chism, a rational jury easily could have found

Chism guilty beyond a reasonable doubt, considering the evidence

and the inferences to be drawn therefrom in the light most

favorable to the government. Testimony by a co-conspirator

fulfilling a plea bargain need not be corroborated by independent

evidence. United States v. Hernandez, 962 F.2d 1152, 1157 (5th

Cir. 1992). Uncorroborated testimony of a co-conspirator, however,

that is incredible or otherwise insubstantial on its face will not

support a verdict. Id. This court has further defined

“incredible” and “insubstantial” as meaning “so unbelievable on its

face that it defies physical laws.” United States v. Gardea

Carrasco, 830 F.2d 41 (5th Cir. 1987). 
12

Chism has not shown that Phoenix’s testimony is incredible or

otherwise insubstantial on its face. Accordingly, the jury was

entitled to believe Phoenix and to convict Chism without any

corroborating evidence of guilt.

C.

Wells also questions the sufficiency of the evidence. When

considering a claim of insufficiency, we review the evidence to

determine whether a rational trier of fact, after considering the

evidence and reasonable inferences drawn therefrom in the light

most favorable to the verdict, could have found the defendant

guilty beyond a reasonable doubt. United States v. Walker,

148 F.3d 518, 523 (5th Cir. 1998). 

To establish a conspiracy, the government must show (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. See United States v. Gray, 96 F.3d

769, 772-73 (5th Cir. 1996), cert. denied, 117 S.Ct. 1275 (1997).

“'To be convicted of conspiracy, defendants 'need not . . . have

committed the crime that was its object.'” United States v.

Manges, 110 F.3d 1162, 1177 (5th Cir. 1997) (quoting United States

v. Duvall, 846 F.2d 966, 975 (5th Cir. 1988)) (ellipses in

original), cert. denied, 118 S. Ct. 1675 (1998).

Wells does not contest the government’s assertion that Brown,

Chism, and Phoenix committed bank robbery or that he went into the

bank on the day of the robbery to determine whether there was
13

security and reported to his co-conspirators that there was no

security in the bank. Wells contends, however, that the conspiracy

ended when he, Brown, Chism, and Phoenix left the bank after

deciding not to rob it because of the heavy flow of customers.

Wells contends that Brown, Chism, and Phoenix robbed the bank

pursuant to a conspiracy to which he was not a party. 

Wells contends that because the indictment alleged only one

conspiracy, the evidence created a variance that prejudiced his

rights. The primary considerations in determining whether the

evidence supports a single conspiracy or multiple conspiracies are

(1) the existence of a common goal; (2) the nature of the scheme;

and (3) the overlapping of the participants in the various

dealings. United States v. Morris, 46 F.3d 410, 415 (5th Cir.

1995). We will affirm the jury’s finding that the government

proved a single conspiracy unless the evidence and all reasonable

inferences, examined in the light most favorable to the

prosecution, would preclude reasonable jurors from finding a single

conspiracy beyond a reasonable doubt. Id. (citing United States v.

DeVarona, 872 F.2d 114, 118 (5th Cir. 1989)). 

Under this test, reasonable jurors could find a single

conspiracy beyond a reasonable doubt. There was a common goal to

rob a bank. Wells played a role in this scheme. He went into the

bank and reported to his co-conspirators that there was no

security. Relying on that information, Wells’s co-conspirators

returned to the same bank that day and robbed it. All the

participants in the “first” and “second” conspiracies were the
 

2 United States v. Wilson, 116 F.3d 1066, 1076 (5th Cir.), vacated for reh’g

en banc on other grounds, 123 F.3d 213 (5th Cir. 1997), cert. denied, 118 S. Ct.

704, cert. denied, 118 S. Ct. 857, cert. denied, 118 S. Ct. 1309 (1998), opinion on

rehearing en banc sub nom. United States v. Brown, 1998 U.S. App. LEXIS 28613 (5th

Cir. Nov. 16, 1998).

14

same, except that Wells was not present when his co-conspirators

robbed the bank. “[T]here is no requirement that every member must

participate in every transaction to find a single conspiracy.”2

Given these facts, reasonable jurors were not precluded from

finding a single conspiracy beyond a reasonable doubt.

A conspirator is liable for the criminal acts of his coconspirator if (1) the substantive offense was committed in

furtherance of the conspiracy and (2) the offense could reasonably

have been foreseen to be a natural consequence of the unlawful

agreement. United States v. Wilson, 105 F.3d 219, 221 (5th Cir.)

(citing Pinkerton v. United States, 328 U.S. 640, 647-48 (1946)),

cert. denied, 118 S. Ct. 133 (1997). Because Wells conspired to

rob a bank, he is liable for the robbery committed by his coconspirators even though he was not present when the robbery was

committed.

Although a conspirator may withdraw from the conspiracy and

avoid liability for acts subsequently committed by his coconspirators, “[a] defendant is presumed to continue in a

conspiracy unless he makes a substantial affirmative showing of

withdrawal, abandonment, or defeat of the conspiratorial purpose.”

United States v. Torres, 114 F.3d 520, 525 (5th Cir.), cert.

denied, 118 S. Ct. 316 (1997). To escape responsibility, Wells has
15

the burden of proving that he took affirmative acts inconsistent

with the conspiracy and that these acts were communicated in a

manner reasonably calculated to reach his co-conspirators. See

id.; see also United States v. Devine, 934 F.2d 1325, 1335 (5th

Cir. 1991) (noting that withdrawal is not accomplished when the

defendant merely states, in a taped conversation, “I am not

involved in that anymore, my partner has fled, he has left the

state.”). “[M]ere cessation of activity in furtherance of the

conspiracy does not constitute withdrawal.” Torres, 114 F.3d at

525. 

Wells did not take any affirmative acts inconsistent with the

conspiracy that would have put his co-conspirators on notice that

he wished to withdraw from the conspiracy. The only reason he was

not with his co-conspirators when they robbed the bank was because

he was at a job interview. Even if Wells had wished to withdraw

from the conspiracy, it was probably too late. “Withdrawal after

entering into the agreement and the commission of one or more overt

acts pursuant thereto does not prevent a conspiracy conviction of

the withdrawing party.” United States v. Herron, 825 F.2d 50, 59

(5th Cir. 1987) (citing United States v. Jimenez, 622 F.2d 753 (5th

Cir. 1980), and 2 LAFAVE & SCOTT, SUBSTANTIVE CRIMINAL LAW § 6.5,

at 110-11 (1986)). Moreover, Wells received $100 for his part in

the scheme.

In Herron, the defendant was charged with a conspiracy

involving failure to declare currency at the border. The defendant

claimed that he was exonerated because, at the last minute, he
16

instructed his co-conspirator to file the customs report, an

instruction the co-conspirator disregarded. At this point, the

conspiracy had been entered into, and virtually all the alleged

overt acts had taken place. This court held that the jury was

entitled to find either that the instruction was feigned and not

intended to be followed or that it represented, at most, a change

of heart after the conspiracy offense had been committed.

Likewise, the jury in this case was entitled to find that Wells’s

absence during the robbery, after he had already gone into the bank

and reported the lack of security to his co-conspirators, did not

allow him to escape conviction.

AFFIRMED.