United States v. Smith

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-50829

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

KIMBERLY S. SMITH and CARMELITA MITCHELL,

Defendants-Appellants.

Appeals from the United States District Court

for the Western District of Texas

February 14, 2000

Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

In this consolidated direct appeal, Kimberly S. Smith

(“Smith”) and Carmelita Mitchell (“Mitchell”) seek vacatur of the

judgments of conviction and sentences entered by the United States

District Court for the Western District of Texas, Judge Orlando

Garcia, presiding. Having concluded an exhaustive review of the

record and for the reasons set forth below, we find no error and

therefore affirm both Smith's and Mitchell's convictions and

sentences.

I. BACKGROUND

The two appellants were named, along with Talayah Sullivan

(“Sullivan”), Stephanie Graves (“Graves”), and Nekeidra Shawon

Lewis (“Lewis”), in a two-count, second superseding indictment

returned in the San Antonio Division of the Western District of

Texas on April 1, 1998. The conspiracy alleged in that indictment

charged the five co-defendants with conspiring to commit bank

robbery; more specifically, conspiring to take from the person and

presence of another, by force, violence and intimidation, a sum of

money belonging to and in the care, custody, control, management

and possession of the Bank of America, a bank whose deposits were

then insured by the FDIC, all in violation of 18 U.S.C. §§ 371 and

2113(a). As the manner and means of the conspiracy, the government

alleged that the defendants obtained information concerning bank

procedures from co-conspirator Smith, who was employed at the Bank

of America.

With respect to the indictment returned against the

defendants, Count One charged all five co-defendants with

conspiracy to commit bank robbery, in violation of 18 U.S.C. §§ 371

and 2113(a); and Count Two charged all five with aiding and

abetting bank robbery and using a dangerous weapon in the

commission of the offense, in violation of 18 U.S.C. §§ 2, 2113(a),

and 2113(d). Sullivan, Graves, and Lewis pleaded guilty, and

2

pursuant to their plea and cooperation agreements, Graves and Lewis

testified on behalf of the government during the jury trial of

Appellants Smith and Mitchell.

On May 8, 1998, the jury returned its verdict, finding Smith

guilty on Counts One and Two and Mitchell guilty on Count One only.

Smith was sentenced to a 60-month term of imprisonment for Count

One and a 175-month term of imprisonment for Count Two, both

sentences to be served concurrently, followed by a three-year term

of supervised release on Count One and a concurrent five-year term

of supervised release on Count Two. Mitchell received a 60-month

term of imprisonment, followed by a three-year term of supervised

release. Both appellants, along with their convicted co-defendants

were jointly and severally ordered to pay $68,417 in restitution to

the Bank of America,1 with fines being waived based on the

defendants' inability to pay.

II. DISCUSSION

The appellants have each raised numerous issues, several of

which overlap one another. We will address the various issues

below, roughly in a chronological sequence, with trial matters

addressed first and sentencing matters addressed last.

1

Defendant Lewis, however, was ordered to pay only her $300

share of the robbery proceeds.

3

A. Sufficiency of the Evidence

Mitchell argues that the evidence presented to the jury was

insufficient to support her conviction. The standard of review for

a sufficiency of evidence claim is whether, after viewing the

evidence and the reasonable inferences which flow therefrom in the

light most favorable to the verdict, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt. See United States v. Jones, 185 F.3d 459, 464

(5th Cir. 1999) (citing Jackson v. Virginia, 443 U.S. 307, 317-18,

99 S. Ct. 2781 (1979)); United States v. Mulderig, 120 F.3d 534,

546 (5th Cir. 1997), cert. denied, 118 S. Ct. 1510 (1998).

In reviewing a sufficiency of evidence claim for conspiracy to

commit bank robbery, we are guided by the following principles set

forth in United States v. Burton, 126 F.3d 666 (5th Cir. 1997):

"The evidence need not exclude every

reasonable hypothesis of innocence or be

wholly inconsistent with every conclusion

except that of guilt, and the jury is free to

choose among reasonable constructions of the

evidence." United States v. Bermea, 30 F.3d

1539, 1551 (5th Cir. 1994). The standard of

review is the same regardless whether the

evidence is direct or circumstantial. United

States v. Cardenas, 9 F.3d 1139, 1156 (5th

Cir. 1993).

To establish a conspiracy under 18 U.S.C.

§ 371, the Government must prove (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. United States v. Gray, 96 F.3d

769, 772-73 (5th Cir. 1996), cert. denied, 117

4

S. Ct. 1275 (1997). The conspiracy need not

be proved by direct evidence, but agreement

may be inferred from circumstantial evidence,

such as concert of action. United States v.

Schmick, 904 F.2d 936, 941 (5th Cir. 1990).

"When the [G]overnment attempts to prove the

existence of a conspiracy by circumstantial

evidence, each link in the inferential chain

must be clearly proven." United States v.

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

Proof of "mere association" with persons

involved in criminal activity is insufficient,

by itself, to establish participation in a

conspiracy. Id.

Burton, 126 F.3d at 669.

Here, Mitchell alleges that her conviction was almost

completely dependent on the testimony of her alleged accomplices.

She argues that her accomplices' testimony, though perhaps not

facially incredible, was “entirely unsubstantial,” and thus, under

United States v. Garner, 581 F.2d 481 (5th Cir. 1978), her

conviction may not rest solely upon the uncorroborated

“unsubstantial” testimony of her accomplices.

We note that Mitchell failed to move for judgment of acquittal

at the close of the government's case, and that she also did not so

move for judgment of acquittal at the close of evidence. Thus,

under United States v. Vaquero, 997 F.2d 78, 82 (5th Cir. 1993),

this panel must restrict its sufficiency review to whether

Mitchell's convictions resulted in a “manifest miscarriage of

justice,” which exists only if the record “is devoid of evidence

pointing to guilt or if the evidence on a key element of the

offense is so tenuous that a conviction would be shocking.” Id.

5

(citing United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir.

1992)). Unfortunately for Mitchell, our precedent mandates this

narrowly restricted review of the sufficiency of evidence in light

of her failure to ever move for a judgment of acquittal. Through

this narrow lens we have considered all of the evidence presented

in a light most favorable to the government, and have given the

verdict the benefit of all reasonable inferences and credibility

determinations.

Our exhaustive review of the record leaves us with no doubt

that there was enough evidence to satisfy the standards set forth

above. The evidence, when construed in favor of the verdict, and

with all reasonable inferences drawn in favor thereof, reveals that

Graves, Smith, and Sullivan met at Mitchell's house where they

planned the bank robbery. At the meeting, Smith (the Bank of

America insider) instructed Mitchell and Sullivan on various

aspects of how to conduct the robbery. On the day of the robbery,

Mitchell called Graves while she was en route to the bank to warn

that they should wait because the bank manager was still there.

And after the robbery, the evidence reveals that Graves drove to

Mitchell's sister's house where Mitchell greeted them. Mitchell

helped separate the money and Mitchell told the others to take the

bands off the money because they may have contained tracking

devices. Mitchell and Sullivan took the bands and burned them.

And finally, Mitchell met with Sullivan, Graves, and Smith to

6

discuss hiring a lawyer to represent Smith; Mitchell received $499

from Graves for the lawyer fund.

From this evidence, a jury could most certainly have

reasonably inferred that Mitchell voluntarily joined the conspiracy

knowing its unlawful purpose and that she committed at least one

overt act in furtherance of the conspiracy. Furthermore, and in

light of Mitchell's having failed to properly preserve her

sufficiency claim, we are unable to conclude that the record is

devoid of any evidence pointing to her guilt or that the evidence

on a key element of her offense of conviction is so tenuous that a

conviction would be shocking. For these reasons, Mitchell is not

entitled to relief on this issue.

B. Alleged prosecutorial misconduct

Both appellants argue for the first time on appeal that the

prosecutor committed misconduct by failing to call a witness

referenced during opening statements (specifically, Sullivan), and

that this misconduct served to deny them a fair trial. Since this

issue was not presented to the trial court, it is to be deemed

waived unless the lower court's action constituted plain error.

See United States v. Mann, 161 F.3d 840, 867 n.91 (5th Cir. 1998),

cert. denied, 119 S. Ct. 1766 (1999); Fed.R.Crim.P. 52(b) (allowing

for notice of plain errors affecting substantial rights which were

not presented to the trial court). If the error complained of for

7

the first time on appeal is plain and affected substantial rights,

this Court may provide relief. See United States v. Gaudin, 115

S. Ct. 2310, 2322 (1995) (stating that if there is a forfeited

error, which is plain, and which affects substantial rights, the

decision to correct that forfeited error is in the sound discretion

of the Courts of Appeals). And under this standard, we should not

exercise our discretion to correct a forfeited error unless the

error “seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. (internal quotations

omitted). As is more fully set out below, in light of the

government's response, we decline to exercise our discretion to

correct this obviously forfeited error.2

The following is an excerpt from the prosecutor's opening

statement containing the statements for which appellants claim

plain error:

"You will hear that Ms. Smith and Ms.

Mitchell’s conspiracy unraveled pretty completely

on May the 25th of 1997 when Talayah Sullivan, one

of the robbers, spoke to the FBI and explained that

she had attended a meeting two to three weeks

before this robbery. That meeting was attended by

Kimberly Smith, by Carmelita Mitchell, that they

had agreed, along with Stephanie Graves and another

young woman named Nikki Martin, to do the Bank of

America.

2

It bears mentioning here that the appellants did not ever

request cautionary instructions or urge this issue as a grounds for

relief in a motion for a new trial in the district court. The

possibility for prejudice should have been most obvious to either

of the appellants' counsel at the time of trial.

8

"You’ll hear that they were warned, ‘Thursday

is the day, that’s the day when we sell money or

get money to sell to Brink’s. That’s when we’ve

got most of the money on hand,’ $93,000 it proved

to be. That’s when they were told to tell the

employees, you robbers, tell the employees, ‘Keep

your hands on the counter because there are buttons

under the counter to set off a silent alarm and a

button to set off a camera.’

"You are going to hear Ms. Sullivan say, ‘We

were also warned that these tellers will follow

directions, so we should be sure to tell the

tellers. "Don’t give us a tracking device."’

That’ll explain why no tracking device was put in

the backpack.

"You’re going to hear Ms. Sullivan say, ‘We

were also told we could rob the teller drawers or

the vault, and we should be sure to move into the

vault where the vast majority of the money would

be.’ And the trackers, tracking devices, are

contained in $20 bills."

* * *

"...an incoming telephone call occurred while

they were there, according to Ms. Sullivan, and

that call warned the participants to check the

money for trackers, to make sure we’ve gotten all

the tracking devices off."

The appellants urge that the government's failure to call

Sullivan in light of what was promised to the jury served to

unfairly bolster the testimony of the other witnesses who testified

as to what they learned from Sullivan.

The first two paragraphs above are least troubling because

arguably the prosecutor was forecasting what the evidence was going

to show, i.e., he was explaining that from other evidence, the jury

would hear what Sullivan said, etc., not that Sullivan would appear

to say it or that they would not receive that information from a

9

source other than Sullivan.

With respect to the latter paragraphs, the government concedes

that Sullivan's testimony was promised, and that it was not

delivered.3 However, the government distinguishes the case relied

upon by appellants, United States v. Murrah, 888 F.2d 24 (5th Cir.

1989), by noting that Sullivan was not the exclusive source of the

statements referred to in the opening statement, and that unlike

the scenario in Murrah where the promised evidence was never

presented to the jury in any form after opening statements, the

promised evidence here was presented by alternative sources.

According to the government, the substance was delivered as

promised, just not in the as-promised form of Sullivan's live

testimony.

Based upon our exhaustive review of the record, we find the

government's distinction of Murrah to be persuasive. The full

record supports the government's contention that the evidence

presented through other witnesses was consistent with virtually

everything stated during opening statements, i.e., the record

conclusively establishes that the jury was not infected or unduly

influenced by promised evidence that was not ultimately presented

3

In a footnote to its brief, regarding AUSA William Baumann's

representations outside of the appellate record, the government

states that Sullivan was displeased with her attire the morning of

her testimony, and despite government efforts to get her more

suitable attire, she was not comfortable taking the stand, and so

the prosecutor, confident in the strength of Graves' anticipated

testimony, decided to simply forgo calling Sullivan at all.

10

in any form.4

We find that the prosecutor's opening statement was not

unfairly prejudicial, nor did it affect any substantial rights.

And furthermore, since we find in light of the record evidence that

the alleged error in allowing such an opening statement did not

“seriously affect[] the fairness, integrity or public reputation of

judicial proceedings,” we will not exercise our discretion to

correct this forfeited error. Accordingly, we find that the

appellants were not denied a fair trial as a result of

prosecutorial misconduct and the appellants are not entitled to

relief on this issue.

C. Evidence of two false loan applications

submitted by Smith

Appellant Smith argues that the district court erred in

allowing the government to admit into evidence copies of two

vehicle loan applications submitted by Smith to purchase (1) a BMW

automobile for $16,070 with a down payment of $1,500, and (2) a

Ford F-150 pick-up truck. She contends that these loan

4

Specifically, with respect to the latter three paragraphs of

the opening statement excerpted above: Graves testified that

Sullivan learned from Smith that the tellers would follow

directions and that certain money was marked; Graves testified that

Smith informed Sullivan about getting money from the vault; and

Graves also testified that Mitchell came out of the kitchen with a

phone in hand when they were counting the money and announced that

the money bands might have tracking devices in them and that they

had to be removed.

11

applications contained false statements,5 and that the government

used the applications as undisclosed 404(b) character evidence to

impeach Smith's credibility.

We review evidentiary rulings by the district court for an

abuse of the district court's discretion over such matters. See

United States v. Castillo, 77 F.3d 1480 (5th Cir. 1996). However,

if a defendant fails to object at trial, this Court will only

review evidentiary rulings for plain error. See United States v.

Krout, 66 F.3d 1420, 1434 (5th Cir. 1995). As noted above, an

error is plain when in the context of the entire case, it is “so

obvious and substantial that [the district court's] failure to

notice and correct it would affect the fairness, integrity or

public reputation of judicial proceedings.” United States v.

Lopez, 923 F.2d 47, 50 (5th Cir. 1991).

Here again, Smith's counsel completely failed to object to the

introduction of the loan applications at trial. However, at a

pretrial hearing on Smith's motion in limine to exclude the credit

applications, Smith objected to their introduction for any 404(b)

purpose. Despite this objection Smith concedes that she did not

object to the applications being introduced so long as the

government stayed away from discussing the false statements made on

the applications regarding her employment. Indeed, when asked at

5

In the applications, Smith falsely stated that she had been

employed at a company called Westvaco for the preceding three and

one-half years.

12

trial by the district court if there were any objections to the

introduction of the BMW loan application, Smith's counsel responded

“No objections, your honor.” In light of Smith's failure to object

when specifically asked by the district court at trial, we review

the district court's alleged error in admitting the loan

applications for plain error only.

Smith argues that even under the plain error analysis, she is

entitled to relief on this claim. She notes that the loan

applications were not “wholly” unobjected to by defense counsel,

and they had a profound impact on the fairness and integrity of the

proceedings. And despite the government's contention that it was

going to use the applications only to establish that Smith knew the

FBI was on to her and that she shouldn't make any obvious big cash

purchases that would raise suspicion, the government called a

witness to verify that her employment statement on the loan

application was indeed false. The prosecutor also referenced the

falsity of the loan application in his closing argument. True,

defense counsel's waiver of objection was based upon his

understanding that the prosecutor would not touch upon the false

employment statement, but it is important to note that when the

government called the witness from Westvaco to establish that the

employment statement on the application was false and when

reference was made in closing arguments, no contemporaneous

objection was made.

Without regard to whether the district court abused its

13

discretion in permitting the introduction of the two false loan

applications, we conclude that any error in allowing such evidence

was not “so obvious and substantial” that the district court's

failure to correct it affected the “fairness, integrity, or public

reputation of judicial proceedings.” See Lopez, 923 F.2d at 50.

There is, therefore, no justification for exercising our discretion

to remedy this otherwise forfeited error.

D. Sentencing enhancement against Smith

for obstruction of justice

In this issue, Smith contends that the district court clearly

erred in finding that pursuant to U.S.S.G. § 3C1.1, Smith's

sentence should be upwardly adjusted two levels because she

provided a materially false statement that significantly obstructed

the investigation of the bank robbery. The basis of the district

court's departure was that Smith knew the robbers were females but

intended to identify them as males in order to throw off

investigators. Smith's counsel argued that whatever false

statement Smith made to the FBI was insignificant since

investigators continued to focus on her as the prime suspect and

since little effort was expended looking for black male suspects.

Additionally, Smith's counsel argued, her statements to the FBI

constituted nothing more than a denial of guilt and her hindrance

of the investigation was insignificant.

The district court made the following fact findings with

14

respect to the obstruction enhancement:

[the] Court finds Defendant obstructed justice and

impeded the administration of justice by providing

materially false statements to the Federal Bureau

of Investigation, who has said that they would have

and did go out searching for other people, causing

them to redirect their focus of their

investigation. This was significant in [that] the

FBI officials over a three-week period focusing

[sic] on finding two black bank robbers who in

reality did not exist.

We review the district court's application of the Sentencing

Guidelines to the facts for clear error. See United States v. Cho,

136 F.3d 982, 983 (5th Cir. 1998). The applicable provision of the

Sentencing Guidelines on this issue provides:

[i]f the defendant willfully obstructed or impeded,

or attempted to obstruct or impede, the

administration of justice during the investigation,

prosecution, or sentencing of the instant offense,

increase the offense level by 2 levels.

U.S.S.G. § 3C1.1. Application Note 4(g) of § 3C1.1 states that

“providing a materially false statement to a law enforcement

officer that significantly obstructed or impeded the official

investigation or prosecution of the instant offense” qualifies as

obstruction of justice for the purposes of the two-level

enhancement provisions of § 3C1.1.

Smith argues that her statement should have been construed in

the light most favorable to her under United States v. Surasky, 976

F.2d 242, 244 (5th Cir. 1992), and if her statements had been so

construed they would have been deemed mere denials of guilt which

do not qualify for the two-level obstruction enhancement under

15

application note 1. Smith cites numerous cases for the proposition

that her statement is distinguishable from the statements in those

cases where a defendant named another individual specifically or

gave false information where a fictitious suspect could at least

potentially be located. Her efforts are to no avail because her

statement went far beyond merely denying her own involvement or

refusing to provide information, which would not qualify for the

obstruction enhancement; she specifically sent the FBI

investigators on the trail of unknown suspects, whom she

specifically described in order to obstruct the investigation into

her own and her co-conspirators' involvement.

We find that, based on the evidence before it, the district

did not clearly err in concluding that Smith obstructed justice by

providing a materially false statement to law enforcement officers

which significantly impeded the investigation. Accordingly, Smith

is not entitled to relief on this issue.

E. Sentencing enhancement against Smith

as a leader or organizer

Smith next claims that the district court clearly erred in

finding that pursuant to U.S.S.G. § 3B1.1, Smith's sentence should

be upwardly adjusted four levels because she was the

leader/organizer of a criminal activity involving five or more

participants.

As noted above, we review the district court's application of

16

the Sentencing Guidelines to the facts for clear error. See United

States v. Valencia, 44 F.3d 269, 271-72 (5th Cir. 1995). The

applicable provision of the Sentencing Guidelines here provides for

a four-level enhancement if the defendant “was an organizer or

leader of a criminal activity that involved five or more

participants.” U.S.S.G. § 3B1.1. Application Note 2 of that

section provides that the defendant must have been the “leader,

organizer, manager or supervisor of one or more other

participants.” And application Note 4 sets forth the following

factors which the district court should consider in determining

whether a defendant had a leadership role:

factors the court should consider include the

exercise of decision making authority, the nature

of the participation in the commission of the

offense, the recruitment of accomplices, the

claimed right to a larger share of the fruits of

the crime, the degree of participation in planning

or organizing the offense, the nature and scope of

the illegal activity, and the degree of control and

authority exercised over others.

U.S.S.G. § 3B1.1, Application Note 4.

With respect to the leader/organizer enhancement, the district

court made the following factual findings, which as noted above, we

review for clear error:

[the] Court finds Defendant was an organizer of the

conspiracy to rob the bank. She provided the

necessary data for the completion of the robbery.

Were it not for her leadership and organizational

role, the offense would not have taken place. In

essence, Defendant Smith provided the necessary

impetus to take the robbery forward. She organized

everything about the robbery from the attire to be

17

worn by the robbers, when to rob the bank, the

denominations to demand, location of the money,

what to say to the victim teller, [sic] warn them

of tracking devices, [and] how to enter and exit

without the security camera recording their faces.

Smith clearly played a proactive role in this

particular case.

Smith argues that there was no evidence that she recruited

accomplices or even received a share of the proceeds, and most

importantly that there was no evidence that she exercised control

or authority over any other participant. Smith also relies heavily

on those decisions of this Court which require that a defendant be

a leader or organizer of at least one other participant, exercising

some degree of control or organizational authority in order to

qualify for the leader/organizer enhancement. See United States v.

Ronning, 47 F.3d 710, 711-12 (5th Cir. 1995) (stating that “a

leader or organizer must control or influence other people”).

Smith analogizes her case to the Ninth Circuit's reversal of

the leader/organizer enhancement given to a former bank employee

who instructed his confederates on how the ATM machine at his

former bank operated. See United States v. Harper, 33 F.3d 1143,

1145 (9th Cir. 1994). The Harper court rejected the application of

the leader/organizer enhancement based on the idea that "but for"

the defendant’s expertise the crime could not have been committed

since Harper did little more than explain how the ATM machine

worked when he was employed at the victim bank. Harper is

distinguishable in that here Smith still worked at the bank, was

18

working on the day of the robbery, had placed a call the day of the

robbery to tell her confederates when to arrive, and had told them

where to go, what to do, what to say, and how to avoid detection.

Though Smith may not have recruited her accomplices or have taken

the lion's share of the proceeds, she arguably was the most

integral part of the organization of the five co-defendants'

efforts to rob the bank, and unlike the defendant in Harper, it was

more than Smith's knowledge of bank procedures that qualified her

for a leader/organizer enhancement; it was her integral involvement

in planning, mapping out, orchestrating, and directing virtually

every aspect of the robbery, down to the smallest details, which

qualified her for leader/organizer role, and but for which the

robbery would have never taken place.

In light of the foregoing, we do not find the district court's

conclusion that Smith was the central organizer and leader to be

clearly erroneous. She exercised her control over the other

members as evidenced by their doing everything the way she directed

them to and our review of the record leads us to conclude that

there was more than enough evidence in the record to support a

finding that she influenced and controlled at least one of her

accomplices.

F. Sentencing enhancement against Smith

for the abuse of a position of trust

In her final issue claiming error as to the enhancement of her

19

sentence, Smith argues that the district court clearly erred in

finding that pursuant to U.S.S.G. § 3B1.3, Smith's sentence should

be upwardly adjusted two levels because she abused a position of

trust. Again, we review the district court's application of the

Sentencing Guidelines to the facts for clear error. See United

States v. Valencia, 44 F.3d 269, 271-72 (5th Cir. 1995). The

applicable provision of the Sentencing Guidelines here provides for

a two level enhancement if the defendant “abused a position of

public or private trust . . . in a manner that significantly

facilitated the commission or concealment of the offense.”

U.S.S.G. § 3B1.3.

Smith's central argument here is that, as a part-time teller

at the victim Bank of America branch, she did not hold a “position”

of trust within the plain language of § 3B1.3. She concedes that

though she may have abused a duty of trust, her conduct does not

fall within the parameters of § 3B1.3.

The district court made the following factual findings with

respect to the “abuse of a position of trust” enhancement:

The Court finds Defendant abused her position of

trust. Her position at the bank and her knowledge

of the inner workings of the bank and its security

measures significantly facilitated the commission

of the offense. Smith facilitated armed bank

robbery not mere theft or embezzlement. Although

Defendant Smith was not vested with complete

discretion, she held some substantial degree of

trust. Her role in the offense is clearly a

violation of the trust that significantly

facilitated this particular crime.

20

While generally a bank teller engaged in the activity of

taking cash from the till and putting it in is not utilizing a

position of trust, the same teller certainly may engage in other

activities in the course of her job that do involve aspects of

trust which may be exploited to facilitate a crime. See United

States v. Craddock, 993 F.2d 338, 343 (3d Cir. 1993). Here, the

bank's entrusting Smith by making her privy to its internal

operating and security procedures, as those procedures relate to

robberies, and her use of such private information to facilitate a

bank robbery, is such an exploitation of the trust given a teller

by her employer bank.

Even a cursory review of the record evidence reveals that

Smith's position enabled her to abuse the trust placed in her by

the bank to keep its security procedures secret. She abused that

trust in order to significantly facilitate the commission of this

bank robbery, and based on the record, the district court's

findings are anything but clearly erroneous on this point.

G. Government's alleged violation of

the anti-gratuity statute, 18 U.S.C. § 201(c)(2)

Appellants claim that the government violated the anti-

gratuity provisions of 18 U.S.C. § 201(c)(2) by offering leniency

to co-defendants in exchange for testimony. This Circuit has

repeatedly rejected that argument. See United States v. Haese, 162

F.3d 359, 366-67 (5th Cir. 1998), cert. denied, 119 S. Ct. 1795

g:\opin\98-50829.opn 21

(1999). This claim is wholly without merit and the appellants are

not entitled to relief thereupon.

III. CONCLUSION

Having carefully reviewed the entire record of this case,

having fully considered each of the appellants' issues on appeal,

and for the reasons set forth above, we AFFIRM the convictions and

sentences of both Kimberly S. Smith and Carmelita Mitchell.

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