The opinion
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
*
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should not be published and is not precedent except under the limited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.
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
2
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
3
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 cross-
examination 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.
4
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
5
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
6
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
7
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
8
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
9
(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.
10
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).
11
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
12
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
13
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 co-
conspirator 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 co-
conspirators 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 co-
conspirators, “[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
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
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
15
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.
16