United States v. Joseph Anderson

Case: 12-10979 Document: 00512672499 Page: 1 Date Filed: 06/20/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10979 United States Court of Appeals

Fifth Circuit

FILED

UNITED STATES OF AMERICA, June 20, 2014

Lyle W. Cayce

Plaintiff-Appellee, Clerk

v.

JOSEPH DEMONT ANDERSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

Before STEWART, Chief Judge, and DENNIS and ELROD, Circuit Judges.

CARL E. STEWART, Chief Judge:

Defendant-Appellant Joseph Demont Anderson (“Anderson”) was

convicted by a jury of aiding and abetting bank robbery. On appeal, he

challenges his conviction, sentence, and various rulings by the district court.

For the reasons explained herein, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In February 2012, a federal grand jury charged Anderson and Jeremy

Butler (“Butler”) in a one-count indictment with aiding and abetting each other

in the commission of a bank robbery in violation of 18 U.S.C. §§ 2113(a) and 2.

Anderson pleaded not guilty and proceeded to trial where he was the lone

defendant. The evidence presented at trial showed that around 2:15 p.m. on

January 18, 2012, Butler entered a Chase Bank branch in Dallas, Texas

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wearing something to cover his face and demanded money from a teller. The

teller placed approximately $6,500 in a bag along with a tracking device.

Butler then exited the bank through the front door, ran around the side of the

bank, and jumped over a fence into someone’s back yard. A witness testified

that Butler appeared to know exactly where he was running after he exited the

bank. Around the time Butler was inside of the bank, a witness who lived in

the neighborhood behind the bank saw a gold Grand Marquis driving slowly

down his street. The witness testified that as the car traveled down his street,

he saw a man—who appeared to have something covering his face—jump over

his neighbor’s fence and enter the Grand Marquis.

Around the same time, Dallas Police Department received a call for a

bank robbery and officers were immediately dispatched to the area near the

Chase Bank. The bank’s tracking device led officers to a Grand Marquis

occupied by three men. When officers attempted to stop the Grand Marquis,

its occupants—Butler, Teddy Rogers (“Rogers”), and Anderson—exited the

vehicle and ran. The men were eventually apprehended and transported to

the police station for questioning.

While in custody at the police station, Anderson signed a Miranda

waiver and participated in an interview with a Dallas Police Department

detective and a Federal Bureau of Investigation (“FBI”) agent. The interview

was captured by video and audio recording. During the interview, Anderson

explained, inter alia, that he had no idea that Butler planned to rob a bank.

Anderson stated that he simply agreed to give Butler a ride across town.

According to Anderson, Butler exited his vehicle near the Chase Bank and

when Butler did not return, Anderson and Rogers decided to leave Butler.

Anderson claimed that as he was driving, Butler appeared out of nowhere and

reentered his vehicle. Anderson stated that even after Butler reentered his

vehicle, he was not aware of the fact that Butler had just robbed a bank.

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The government charged Anderson and Butler with aiding and abetting

bank robbery but did not charge Rogers. Prior to his trial, Anderson filed a

motion to suppress “all statements taken from [him] at the time of his arrest

and during custodial interrogation in an interview room.” The district court

denied the motion. After a short trial, the jury convicted Anderson of aiding

and abetting bank robbery. The United States Probation Office prepared a

Presentence Investigation Report (“PSR”) that recommended: (1) that

Anderson be classified as a career offender because his prior burglary

conviction was a crime of violence; (2) that his criminal history category was

IV; (3) that his total offense level was 32; and (4) that his United States

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) range was 210 to 240

months’ imprisonment followed by a term of not more than three years of

supervised release. Anderson objected to the PSR on the grounds that his prior

burglary conviction did not qualify as a crime of violence. The district court

overruled the objection, adopted the PSR’s Guidelines calculation, and

sentenced Anderson to 210 months’ imprisonment followed by a three-year

term of supervised release. Anderson timely appealed his conviction and

sentence. 1

II. DISCUSSION

A.

On appeal, Anderson challenges the district court’s denial of his motion

to suppress his interrogation video. “When reviewing the denial of a motion to

suppress, we review findings of fact for clear error and conclusions of law de

novo.” United States v. Jenson, 462 F.3d 399, 403 (5th Cir. 2006) (citation

1 Anderson filed a motion to supplement the record on March 18, 2014. The

government filed a motion to supplement the record on March 26, 2014. The government

also moved to place its motion to supplement the record under seal. These motions are hereby

granted.

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omitted). All facts should be construed in the light most favorable to the

prevailing party. Id. “[A] district court’s determination regarding the validity

of a defendant’s waiver of his Miranda rights is a question of law reviewed de

novo, but this court accepts the factual conclusions underlying the district

court’s legal determination unless they are clearly erroneous.” United States

v. Solis, 299 F.3d 420, 439 (5th Cir. 2002) (citation and internal quotation

marks omitted).

In order to use an in-custody statement against a defendant at trial, the

government must demonstrate that the defendant was warned of his right to

remain silent and his right to consult with an attorney. See Miranda v.

Arizona, 384 U.S. 436, 471 (1966). “When a defendant challenges the

voluntariness of a confession, the government must prove its voluntariness by

a preponderance of the evidence in order for the confession to be admissible as

substantive evidence at the defendant’s criminal trial.” United States v. Bell,

367 F.3d 452, 461 (5th Cir. 2004) (citation and internal quotation marks

omitted). We consider the totality of the circumstances to determine if “the

statement is the product of the accused’s free and rational choice,” and thereby

voluntary. Id. A confession is involuntary if it was derived from “coercive

police conduct” and a causal link exists between that conduct and the

confession. Id.

Having reviewed the interrogation video and other evidence in the

record, we affirm the district court’s denial of Anderson’s motion to suppress.

Anderson alleges that the coercion at issue in this case began when he was

“roughed-up” at the scene of his arrest. The evidence in the record

demonstrates that an officer landed on top of Anderson at the end of the foot

chase. Officer Fifield testified that the individual who fell on top of Anderson,

Officer Henderson, pulled his hamstring and accidently fell on top of Anderson

as a result. According to Officer Fifield, Officer Henderson was transported to

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Baylor hospital by ambulance as a result of his injury. A finding that Officer

Henderson accidently fell on top of Anderson would not be clearly erroneous.

Furthermore, Officer Henderson was not present during Anderson’s

interrogation and no law enforcement officer insinuated that there would be

further physical contact if Anderson exercised his right to remain silent.

Next, Anderson alleges that shortly after he was arrested, an officer told

him that he was going to prison for forty years. The district court heard

testimony, outside the presence of the jury, from Anderson and Officer Otto on

the issue of whether such a statement was made. The government impeached

Anderson with his prior felony convictions during his testimony on this issue.

Officer Otto denied making such a statement or hearing any other officer make

such a statement. After assessing the evidence, the district court credited

Officer Otto’s testimony that neither he nor any other officer told Anderson

that he was going to prison for any period of time. Accordingly, we defer to the

district court’s credibility determination and finding that no officer told

Anderson that he was going to prison for forty years. See United States v.

Gibbs, 421 F.3d 352, 356–57 (5th Cir. 2005) (stating that this court should

adhere to the clearly erroneous standard to an even greater extent when a

denial of a motion to suppress is based upon live testimony). Nevertheless,

even if an officer made such a statement to Anderson, it was not made in the

context of his interrogation and discussions about potential prison sentences,

without more, do not generally amount to coercion. See United States v. Rico,

51 F.3d 495, 507 (5th Cir. 1995). Moreover, no evidence in the record

demonstrates that anyone told Anderson that he would be sentenced to forty

years if he did not agree to waive his Miranda rights.

Finally, Anderson argues that his will was overborne by the size of the

law enforcement officers and their bombarding him with false accusations.

Even taking Anderson’s characterization of the events as true, this circuit has

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held that similar tactics do not generally constitute coercion or intimidation.

See Bell, 367 F.3d at 462–63 (holding that the officers’ interrogation

techniques—including false statements—were not coercive). Additionally, the

interrogation video demonstrates that the officers introduced themselves to

Anderson and immediately provided him with Miranda warnings. Anderson

was not handcuffed during the interview, the officers never displayed any

weapons, and they never placed their hands on him. Furthermore, Anderson

had significant contact with law enforcement prior to the instant arrest. His

experience with the criminal process makes it less likely that his confession

was involuntary. See United States v. Hearn, 563 F.3d 95, 104 (5th Cir. 2009)

(considering Defendant’s experience with law enforcement when deciding that

she knowingly and voluntarily forfeited her Miranda rights).

The totality of the circumstances support the conclusion that Anderson

was properly apprised of his Miranda rights and that his confession was

knowing and voluntary. Therefore, the district court did not err by denying

Anderson’s motion to suppress his interrogation video.

B.

At trial, the defense attempted to call Teddy Rogers—the unindicted

passenger in Anderson’s car on the day of the incident—as a witness. The

government informed the district court that Rogers was represented by counsel

in a separate criminal matter and that there were potential Fifth Amendment

implications regarding his testimony in Anderson’s trial. The district court

questioned Rogers—outside of the presence of the jury—as to whether he

wished to assert his Fifth Amendment right. Rogers initially stated that he

would waive his Fifth Amendment right and testify at Anderson’s trial. After

meeting with an attorney, however, Rogers decided to exercise his Fifth

Amendment right to not testify.

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On appeal, Anderson alleges that an off-the-record conversation occurred

“in open court” between the government and the district court where the

government stated that it would indict Rogers if he testified for the defense.

Rogers was not present for this alleged conversation. The only evidence of the

substance of this conversation is the assertion made in Anderson’s brief on

appeal. However, the trial record indicates that an “[o]ff-the-record discussion”

took place just after Anderson’s motion for judgment of acquittal. Anderson

argues that the government attempted to prevent Rogers from testifying by

informing the court that it would indict Rogers if he testified on behalf of

Anderson. Anderson claims that the government did not truly intend to indict

Rogers and only used the potential indictment as a “ruse” to keep Rogers off of

the witness stand.

Whether the government substantially interfered with a defendant’s

right to present witnesses and establish his defense is a fact question. United

States v. Bieganowski, 313 F.3d 264, 291 (5th Cir. 2002). Accordingly, this

court generally reviews prosecutorial intimidation claims for clear error. Id.

However, because this claim was not raised before the district court, we review

it for plain error. Fed. R. Crim. P. 52(b); United States v. Smith, 31 F. App’x

158, *3 (5th Cir. 2001) (per curiam) (unpublished) (holding that plain error

analysis applied to allegations of witness intimidation that were not raised at

trial). “A district court’s decision to exclude a witness’ testimony based on an

invocation of the witness’ Fifth Amendment privilege is reviewed for an abuse

of discretion.” United States v. Kinchen, 729 F.3d 466, 475 (5th Cir. 2013).

“Threats against witnesses are intolerable. Substantial government

interference with a defense witness’ free and unhampered choice to testify

violates due process rights of the defendant.” United States v. Goodwin, 625

F.2d 693, 703 (5th Cir. 1980). In order to demonstrate substantial government

interference, “the defendant must show a causal connection between the

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governmental action and the witness’ decision not to testify.” See Knotts v.

Quarterman, 253 F. App’x 376, 381 (5th Cir. 2007) (unpublished) (citing

Bieganowski, 313 F.3d at 291–92; United States v. Thompson, 130 F.3d 676,

687 (5th Cir. 1997)).

We note that there is no information in the record to substantiate

Anderson’s version of events. However, even assuming arguendo that the

alleged off the record conversation occurred in the manner in which Anderson

asserts, we conclude that the government did not substantially interfere with

Rogers’s choice to not testify at Anderson’s trial. It is important to note that

the record does not indicate that the government had any conversations with

Rogers with respect to the consequences of testifying as a witness in Anderson’s

case. Instead, the record shows that the government informed the district

court and Anderson’s counsel of Rogers’s status and the district court decided

to question Rogers to ensure that he felt comfortable testifying. After Rogers

indicated that he was willing to testify, he told the district court that he wanted

to speak with an attorney before making a final decision. The district court

asked Rogers why he wanted to speak with an attorney and Rogers stated: “I

can tell the state what I told them before, but I would rather have an attorney

right here with me though, you know what I’m saying, just for—for my safety

. . . .”

After Rogers met with his attorney, the attorney questioned Rogers on

the record about their discussion with respect to the potential implications of

Rogers testifying. Rogers’s attorney asked him the following question:

And, basically, what it came down to, I asked you after I explained

kind of the different scenarios and what could happen and

potential outcomes, I explained to you that it’s your choice, you

have an absolute right to testify or to invoke your Fifth

Amendment right and you understood that. Is that correct?

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Rogers answered “[y]es, sir.” Rogers then explained that he wished to

exercise his Fifth Amendment right because he felt that he could possibly

incriminate himself by testifying. The colloquy between Rogers and his

attorney demonstrates that Rogers’s decision to not testify was a result of a

deliberative process free and clear of government intimidation. During

questioning by his attorney and the district court, Rogers never indicated that

he did not want to testify because he was afraid that the government would

indict him. Therefore, there is no causal nexus between the alleged

governmental action and Rogers’s decision to not testify. See Bieganowski, 313

F.3d at 291–92. Accordingly, Rogers’s claim of error on this issue is without

merit.

C.

During the course of the trial, the district court made several evidentiary

rulings that were adverse to Anderson. He challenges on appeal (1) the district

court’s decision to exclude evidence regarding a prior bank robbery committed

by Butler; (2) the district court’s decision to exclude Rogers’s interrogation

video; and (3) the district court’s decision to exclude certain evidence related to

Butler’s mental condition. “A district court’s evidentiary rulings are typically

reviewed for abuse of discretion.” United States v. Pruett, 681 F.3d 232, 243

(5th Cir. 2012) (citation omitted). “A trial court abuses its discretion when its

ruling is based on an erroneous view of the law or a clearly erroneous

assessment of the evidence.” United States v. Ragsdale, 426 F.3d 765, 774 (5th

Cir. 2005) (citation and internal quotation marks omitted). Any abuse of

discretion by the district court is subject to a harmless error analysis and a

ruling should be reversed only if it substantially prejudiced the defendant’s

rights. See United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007) (per

curiam). We will address Anderson’s challenges to the district court’s

evidentiary rulings in turn.

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i. Butler’s Prior Bank Robbery

Anderson attempted to present evidence to the jury showing that Butler

robbed a Bank of America two weeks prior to the incident in question. He

claimed that Butler, without Anderson’s assistance, executed the Bank of

America robbery in the same exact fashion in which he executed the bank

robbery at issue in this case. According to Anderson, the evidence was

admissible under Federal Rule of Evidence (“FRE”) 406, which allows for the

admission of “habit evidence.” The government moved in limine to exclude this

evidence, arguing that it was irrelevant. The district court agreed with the

government and excluded any evidence related to Butler’s prior bank robbery.

Under FRE 401, “[e]vidence is relevant if: (a) it has any tendency to make

a fact more or less probable than it would be without the evidence; and (b) the

fact is of consequence in determining the action.” Fed. R. Evid. 401. Relevant

evidence is generally admissible unless it falls under a specific prohibition.

Fed. R. Evid. 402. FRE 406 provides that “[e]vidence of a person’s habit . . .

may be admitted to prove that on a particular occasion the person . . . acted in

accordance with the habit . . . .” Fed. R. Evid. 406. “To offer evidence of a habit,

a party must at least demonstrate a regular practice of meeting a particular

kind of situation with a specific type of conduct.” United States v. Heard, 709

F.3d 413, 434 (5th Cir. 2013) (citation and internal quotation marks omitted).

“Habit suggests a regular response to a repeated specific situation that has

become semi-automatic.” Id. (citation and internal quotations omitted).

Anderson argues on appeal that evidence related to Butler’s prior solo

bank robbery was crucial and probative to his defense because it made it more

probable that Butler acted alone on January 18, 2012. Anderson’s defense at

trial was that he, in good faith, gave Butler a ride without any knowledge of

Butler’s proclivity toward robbing banks and without knowledge of Butler’s

intent to commit a bank robbery on January 18, 2012. Therefore, Anderson

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argues, he was erroneously precluded from presenting his “affirmative defense

of good faith and lack of knowledge.” Anderson relies on United States v.

Lowery for the proposition that he was entitled to present evidence supporting

his affirmative defense. 135 F.3d 957 (5th Cir. 1998) (per curiam).

We conclude that the district court did not abuse its discretion by

excluding evidence related to Butler’s prior bank robbery. The district court

has significant discretion in determining whether evidence is relevant to the

issues at trial. United States v. Masat, 948 F.2d 923, 933 (5th Cir. 1991).

Anderson provides no authority supporting the notion that details of one of

Butler’s prior criminal acts are probative to Anderson’s guilt or innocence in

this case. 2 Moreover, this evidence does not meet the threshold requirements

for habit evidence under FRE 406 because there was no evidence that robbing

banks alone was Butler’s “regular practice.” See Heard, 709 F.3d at 434. The

fact that Butler committed one prior bank robbery alone does not demonstrate

that on January 18, 2012, he acted in conformity with a habit of committing

bank robberies alone.

Furthermore, Anderson’s reliance on Lowery to support the admissibility

of his purported affirmative defense is unpersuasive. In that case, the

defendant was convicted of obstruction of justice in violation of 18 U.S.C.

§ 1512(b)(1). Lowery, 135 F.3d at 958. Lowery’s conviction was based upon his

attempt to influence a witness’ testimony in a criminal trial. Id. Lowery’s

defense theory was that he simply encouraged the witness to testify truthfully.

Id. at 958–59. 18 U.S.C. § 1512(e) provides a statutory affirmative defense to

obstruction of justice. To successfully assert this affirmative defense, a

2 To the contrary, we explained in United States v. Nelson that in the context of multi-

party criminal endeavors, one individual’s history of independent criminal conduct does not

make it more or less probable that other parties were involved in the alleged joint criminal

conduct at issue. 242 F. App’x 164, 172 (5th Cir. 2007) (unpublished).

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defendant must prove by a preponderance of the evidence that his conduct was

lawful and his “sole intention was to encourage, induce or cause the other

person to testify truthfully.” 18 U.S.C. § 1512(e). At trial the district court

excluded evidence that would have aided Lowery in proving his affirmative

defense. Lowery, 135 F.3d at 959. This court reversed and remanded for a new

trial holding that the district court’s ruling stifled Lowery’s right to assert his

affirmative defense. Id. at 960. Unlike the defendant in Lowery, Anderson

fails to cite any authority demonstrating that “good faith and lack of

knowledge” is an affirmative defense to aiding and abetting bank robbery. Nor

are we aware of such a case. Therefore, Anderson’s assertion that he acted

with “good faith and lack of knowledge” is more appropriately characterized as

his defense theory as opposed to an affirmative defense. While Anderson is

permitted to submit evidence to the jury to support his defense theory, he is

not permitted to submit evidence that is irrelevant to the issues at trial.

The ultimate issue for the jury at Anderson’s trial was whether the

government proved beyond a reasonable doubt that Anderson aided and

abetted Butler in a bank robbery on January 18, 2012. Anderson’s defense

theory of “good faith and lack of knowledge” focused on his state of mind at the

time of the offense. Butler’s prior bank robbery—which Anderson does not

claim to have been aware of at the time of the instant offense—is not relevant

to Anderson’s state of mind. Anderson cites no case law supporting the

proposition that he was entitled to present evidence showing that Butler, on

one prior occasion, committed a bank robbery without his assistance.

Accordingly, we conclude that the district court did not abuse its discretion by

excluding evidence related to Butler’s prior bank robbery.

ii. Rogers’s Interrogation Video

After Rogers asserted his Fifth Amendment right to not testify, Anderson

attempted to enter Rogers’s interrogation video into evidence in lieu of his live

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testimony. Anderson intended to offer the video for the purpose of showing: (1)

Rogers’s perception of Butler’s mental state; (2) that Anderson did not know

Butler; (3) that Rogers and Anderson had no idea that Butler was going to rob

a bank; (4) that Butler offered Anderson gas money; (5) that Rogers did not

break into a house with Butler; (6) that Anderson tried to make Butler get out

of his car after the robbery; (7) where Anderson, Rogers, and Butler were

sitting in the car; and (8) the specific details regarding the direction Anderson

was traveling when he picked Butler up after the robbery. The district court

excluded Rogers’s interrogation video because it contained inadmissible

hearsay. The district court also found that the statements in the video were

cumulative of other evidence presented in the case.

On appeal Anderson makes no arguments as to why the interrogation

video falls under a hearsay exception. He also abandons the arguments he

made below—that Rogers’s interrogation video was admissible as a statement

against interest or a present sense impression—and acknowledges that his

claim is foreclosed by Williamson v. United States, 512 U.S. 594, 600 (1994).

Anderson simply encourages this court to reflect upon the impact the exclusion

of this evidence had on his defense. Having considered Anderson’s position on

this issue, we perceive no error in the district court’s decision to exclude

Rogers’s interrogation video.

iii. Evidence Related to Butler’s Mental Condition

The district court also excluded Butler’s interrogation video and still

photographs taken from the video. The defense sought to introduce this

evidence “so the jury could see how bizarre Butler was acting that night.” The

defense wanted the jury to see that Butler “was sleeping on the floor . . . making

strange movements and generally appeared to be in a comatose mental state.”

Anderson’s theory was that Butler’s mental condition, evinced by his abnormal

behavior on video, would show the jury that Butler acted alone and Anderson

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had no knowledge of Butler’s intent to rob a bank. Anderson cites no authority

and provides no legal analysis explaining how the district court erred by

excluding the evidence. In reviewing the district court’s decision and

reasoning, we conclude that the district court did not abuse its discretion by

excluding this evidence.

D.

During Anderson’s closing argument, his attorney directed the jury’s

attention to the indictment and argued that the government engaged in

“overreaching.” Anderson’s defense lawyer stated:

Now, ladies and gentlemen, you’re entitled to absorb all the

evidence in this case. Look at the indictment in this case. Who’s

on that indictment . . . Now, look at the facts of this case. Joe

Anderson and Teddy Rogers and Jeremy Butler. Joe Anderson and

Teddy Rogers picked up Butler. Joe Anderson and Teddy Rogers

went down to fill up the car with water with Mr. Butler in the back.

Joe Anderson and Teddy Rogers left Mr. Butler standing in the

median. Joe Anderson and Mr. Rogers picked up Mr. Butler after

the–after the robbery took place. Joe Anderson and Mr. Rogers

both ran from the car. All right? Joe Anderson is the one I guess

they’re—I mean, Joe—Mr. Rogers is the one, I’m assuming, they’re

trying to insinuate was in the house with Mr.—with Kool-Aid. 3

Look on the indictment. Whose names appear on the indictment?

Anderson’s defense lawyer’s point was that the government overreached

because it charged Anderson but did not charge Rogers even though Rogers

was similarly situated to Anderson. The government responded to Anderson’s

argument during its rebuttal by stating: “Teddy Rogers. Now, [Anderson’s

defense lawyer] opened the door, and this is in direct response to his argument.

Let me tell you why Teddy Rogers isn’t in the indictment. Because he’s

incarcerated in the state looking at up to life in prison.” Anderson objected and

the district court responded to the objection by stating: “The jury will disregard

3 “Kool-Aid” is Butler’s nickname.

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that statement.” Anderson did not request and the district court did not

provide any further curative instructions in response to the government’s

comments. Anderson also did not request a mistrial based upon the

prosecutor’s comments.

On appeal, Anderson argues that the prosecutor’s statements regarding

Rogers facing life in prison in state court referenced facts not in evidence at

trial. Accordingly, Anderson claims that his conviction should be reversed

because the prosecutor’s comments violated his Fifth Amendment due process

rights. Because Anderson failed to properly preserve his claim of error

regarding the prosecutor’s reference to facts not in evidence, we review this

claim only for plain error. See United States v. Salinas, 480 F.3d 750, 756 (5th

Cir. 2007). Although Anderson timely objected to the comments, the district

court sustained his objection and Anderson did not request a mistrial or a

curative instruction. Accordingly, he “effectively received all of the relief that

he requested from the district court.” Id. “When a defendant asks this court

to reverse a conviction under these circumstances, the defendant essentially

asks us to go against the implicit judgment of both the trial court and the

defendant’s trial counsel that the trial court’s corrective action was adequate

and appropriate.” Id. (citation and internal quotation marks omitted). As a

result, the challenged comments are reviewed under the plain error standard.

Id.

“A prosecutor is confined in closing argument to discussing properly

admitted evidence and any reasonable inferences or conclusions that can be

drawn from that evidence.” United States v. Mendoza, 522 F.3d 482, 491 (5th

Cir. 2008). A prosecutor is prohibited from referring to any evidence that was

not admitted at trial. Id. When assessing the prejudice sustained by a

prosecutor’s improper remarks, the determinative question is whether the

remarks “cast serious doubt on the correctness of the jury’s verdict.” See

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United States v. Guidry, 456 F. 3d 493, 505 (5th Cir. 2006) (citation and

internal quotation marks omitted). More specifically, there are three factors

we consider in deciding whether to reverse a conviction due to improper

comments by a prosecutor: “(1) the magnitude of the prejudicial effect of the

prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the

judge, and (3) the strength of the evidence supporting the conviction.” United

States v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1994) (citation omitted).

“Inappropriate prosecutorial comments, standing alone, would not

justify a reviewing court to reverse a criminal conviction obtained in an

otherwise fair proceeding.” United States v. Young, 470 U.S. 1, 11 (1985). To

demonstrate reversible plain error, Anderson must show that the prosecutor’s

remarks were improper, the error was clear or obvious and the error affected

his substantial rights. See United States v. Escalante-Reyes, 689 F. 3d 415, 419

(5th Cir. 2012) (en banc). The final consideration in our plain error analysis is

“whether the error affects the fairness, integrity, or public reputation of

judicial proceedings such that the appellate court should exercise its discretion

to correct the error.” Id. at 425 (citation and internal quotation marks

omitted).

Anderson argues that the prosecutor’s comment during his rebuttal

argument was improper. He notes that the magnitude of the comment was

significant because it caused jurors to infer that Anderson associated with

serious offenders and therefore, was not the unsuspecting victim of being in

the wrong place at the wrong time pursuant to his defense theory. Anderson

also argues that the district court’s general instruction to the jury—that any

statements made by lawyers are not evidence—was insufficient to cure the

inflammatory effect of the prosecutor’s comments. Finally, Anderson asserts

that because the government’s proof was circumstantial and the case against

him was generally weak, his substantial rights were prejudiced by the

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prosecutor’s comment. Therefore, according to Anderson, his conviction should

be reversed and the case should be remanded for a new trial.

The government concedes that the prosecutor’s comment was improper.

However, the government claims that the comment was “minimally prejudicial

because it was responsive to the defense’s argument that Rogers’s non-

indictment should somehow result in a reasonable doubt as to Anderson’s

guilt.” The government further asserts that the comment was isolated and a

small part of a much longer rebuttal argument. Additionally, the government

argues that the district court’s instructions mitigated any harm from the

comment. Finally, the government claims that any error was harmless

because evidence of Anderson’s guilt was substantial.

The government correctly concedes that the comment it made during

rebuttal was improper. Although the comment may have been invited by

Anderson’s statements during his closing argument, such an invitation does

not grant the government leave to delve into evidence that was not admitted

at trial. See United States v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir.

1999) (“While AUSA Fielden could respond to the defense attorneys’

statements in her closing argument, she cannot base her arguments on facts

not in evidence. . . .”).

i. Prejudicial Effect of Prosecutor’s Remarks

There are several reasons why the prosecutor’s comment—that Rogers

was not charged because he faced a life sentence in state court—could be

classified as prejudicial. The comment provides no context for Rogers’s

potential life sentence at the state level. The jury could have inferred that

Rogers faced a life sentence for his involvement in the instant bank robbery.

Left to speculate, the jury could have concluded that Anderson’s association

with Rogers makes it more likely that he was guilty of the instant bank

robbery. Alternatively, if jurors assumed that Rogers’s potential life sentence

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was not associated with the instant bank robbery, they could infer from

Rogers’s further involvement in the criminal system—for a seemingly very

serious offense—that he would also involve himself in the instant bank

robbery, and accordingly, so would Anderson. Therefore, the comment could

have had a prejudicial effect on the jurors in this case.

ii. Cautionary Instruction

The district court simply instructed the jury to disregard the prosecutor’s

improper comment during his rebuttal. Anderson did not request a cautionary

instruction and the district court provided no specific admonition to the jury.

Despite the fact that no specific instruction was given at the time of the

objection, the district court’s charge to the jury included the general instruction

that “any statements, objections, or arguments made by the lawyers are not

evidence.” This circuit recognizes the well-established presumption that jurors

heed the district court’s instructions. See United States v. Skelton, 514 F.3d

433, 446 (5th Cir. 2008). Accordingly, the court’s instructions—that the

prosecutor’s comment should be disregarded and that attorneys’ arguments

are not evidence—were likely sufficient to cure any prejudice resulting from

the improper prosecutorial comment.

iii. Strength of the Evidence Supporting Conviction

Finally, we consider the strength of the evidence demonstrating that

Anderson was guilty of aiding and abetting bank robbery. There seemed to be

one primary dispute at trial—whether Anderson knew that Butler intended to

rob the bank and agreed to assist by driving him to and from the bank. There

was no disputing the fact that Anderson stopped his car in front of the bank;

Butler exited Anderson’s car and immediately robbed a bank; and Anderson

picked Butler up on a different street just after the bank robbery.

Although there was arguably very little direct evidence of Anderson’s

intent to participate in the bank robbery, the circumstantial evidence was

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substantial. The jury reasonably concluded that it was more than a

coincidence that Anderson’s car stopped—for whatever reason—in front of the

bank. The fact that just after the bank robbery Butler ran directly to the street

where Anderson was driving slowly also appears to be more than a coincidence.

Additionally, Anderson’s decision to evade the police by running away, at the

same time as Butler and Rogers, suggests that he had a guilty conscience.

Anderson was also evasive of the investigator’s questions during his

interrogation. His story changed several times and he admitted that he was

not being completely up front at the start of the interview. All of these facts

demonstrate that the government’s evidence was strong at trial.

iv. Conclusion

Balancing the three factors, we conclude that under a plain error

analysis, the prosecutor’s improper comment does not necessitate reversal of

Anderson’s conviction. It is important to note that the comment actually had

nothing to do with Anderson. Instead, the comment was related to an

unindicted person who may or may not have been involved in the commission

of the bank robbery. Furthermore, the jury was instructed to disregard the

improper comment and the district court, on multiple occasions, explained that

the lawyers’ comments were not evidence. Therefore, the jury is presumed to

have disregarded the comment and exercised restraint in not relying on it as a

reason to find Anderson guilty. Finally, as discussed above, the evidence

presented to the jury—excluding the improper comment—was more than

sufficient to convict Anderson of aiding and abetting bank robbery.

E.

Anderson also argues that the cumulative effects of the alleged errors

committed at trial warrant reversal of his conviction. Under the cumulative

error doctrine, “relief may be obtained only when constitutional errors so

fatally infect the trial that they violate the trial’s fundamental fairness.”

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United States v. Alaniz, 726 F.3d 586, 628 (5th Cir. 2013) (citation and internal

quotation marks omitted).

This court has recognized that “the cumulative effect of a series of errors

may require reversal, even though a single one of those errors, standing alone,

would not require such a result.” United States v. Villarreal, 324 F.3d 319, 328

(5th Cir. 2003) (citation omitted). “The doctrine justifies reversal only in the

unusual case in which synergistic or repetitive error violates the defendant’s

constitutional right to a fair trial.” United States v. Delgado, 672 F.3d 320, 344

(5th Cir. 2012). This is “a rarity.” Villarreal, 324 F.3d at 328 (citations

omitted); see also Delgado, 672 F.3d at 344. In the event that errors were

committed, reversal is not always warranted because “the Constitution does

not guarantee a perfect trial, only one that is fair.” United States v. El-Mezain,

664 F.3d 467, 535 (5th Cir. 2011); see also United States v. Isgar, 739 F.3d 829,

841–42 (5th Cir. 2014).

Only one error was committed at trial—the prosecutor’s reference to

facts not in evidence. Accordingly, we conclude that the cumulative error

doctrine is inapplicable to this case.

F.

Anderson filed two separate motions for a new trial: one on September

4, 2012 and another on September 21, 2012. The September 4th motion argued

that a new trial was warranted due to newly discovered evidence regarding

inmates who claimed that Butler told them that Anderson was not involved in

the bank robbery in any fashion. The September 21st motion argued that a

new trial was warranted because subsequent to the trial, Butler was allegedly

found incompetent to stand trial. The district court denied both motions.

“A district court’s decision to grant or deny a motion for new trial

pursuant to Rule 33 is reviewed for an abuse of discretion.” United States v.

Wall, 389 F.3d 457, 465 (5th Cir. 2004) (citation omitted). This standard is

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deferential to the trial court as the purveyor of the evidence presented at trial.

Id. “Questions of law are reviewed de novo. On mixed questions of law and

fact, this court reviews the underlying facts for abuse of discretion, but the

conclusions to be drawn from those facts de novo.” Id. (citation omitted)

Federal Rule of Criminal Procedure 33 permits a district court to “vacate

any judgment and grant a new trial if the interest of justice so requires.” Fed.

R. Crim. P. 33. This court generally disfavors granting motions for new trials

based upon newly discovered evidence. Wall, 389 F.3d 467. There are five

prerequisites that must be satisfied to justify a new trial on that basis:

(1) the evidence is newly discovered and was unknown to the

defendant at the time of trial; (2) the failure to detect the evidence

was not due to a lack of diligence by the defendant; (3) the evidence

is not merely cumulative or impeaching; (4) the evidence is

material; and (5) the evidence if introduced at a new trial would

probably produce an acquittal.

Id. (citation omitted). The defendant is required to prove each element in order

to prevail. Villarreal, 324 F.3d at 325. This circuit has acknowledged that “a

motion for new trial may not be based on inadmissible evidence.” Wall, 389

F.3d at 470–71 (citing United States v. Parker, 903 F.2d 91, 102–03 (2d Cir.

1990); United States v. MacDonald, 779 F.2d 962, 964 (4th Cir. 1985)).

i. September 4th Motion for New Trial

The September 4th motion is based upon several inmates’ statements

alleging that Butler told them that Anderson was unaware of his plan to rob a

bank. Anderson argues that the inmates’ testimony undermines the verdict in

this case. He argues that “the only basis for the jury to return a guilty verdict

was that they did not believe Anderson that he had no idea Butler was

planning on robbing a bank.” Therefore, according to Anderson, reversal is

warranted. We disagree. The newly discovered evidence that Anderson

proffers in his September 4th motion for new trial constitutes inadmissible

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hearsay. This court has acknowledged that a new trial should not be granted

based upon newly discovered evidence that would be inadmissible at trial. See

Wall, 389 F.3d at 470–71. Accordingly, we conclude that the district court did

not abuse its discretion by denying Anderson’s September 4th motion for a new

trial.

ii. September 21st Motion for New Trial

The September 21st motion is based upon the allegation that subsequent

to Anderson’s trial, Butler was found incompetent to stand trial for his role in

the instant bank robbery. There are several reasons why Anderson’s

arguments on this issue are unpersuasive. We note—for the purpose of

context—that the pivotal issue in this case was Anderson’s knowledge and

intent at the time of the offense. Anderson’s arguments at trial and briefing on

appeal suggest that he has a far more expansive view of what information is

relevant to what—by all accounts—was the ultimate issue at trial. Anderson’s

view is misguided.

Butler’s competency to stand trial had little relevance to his mental

condition on the day of the offense, and, more importantly, the implications of

his condition on Anderson’s knowledge and intent to aid and abet bank

robbery. The competency evaluation at issue was performed to determine

whether Butler was competent to proceed with a trial or guilty plea—not

whether his decision to commit a bank robbery was a result of mental illness.

Moreover, further evidence of Butler’s mental condition was likely

cumulative. Similar information was presented to the jury through Anderson’s

statements during his interrogation video and through the testimony of an

inmate who observed Butler on the day of the offense. Anderson was given

leave to argue to the jury at length about Butler’s mental problems and his

unpredictable behavior. Anderson is unable to demonstrate how additional

information regarding Butler’s competency would assist the jury in deciding

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whether Anderson aided and abetted Butler in the commission of the bank

robbery. Accordingly, we conclude that the district court did not abuse its

discretion by denying Anderson’s September 21st motion for a new trial.

G.

Anderson also challenges on appeal the district court’s finding that his

prior burglary conviction under Texas Penal Code Ann. § 30.02 qualified as a

crime of violence for the purpose of categorizing him as a career offender

pursuant to U.S.S.G. § 4B1.1. Before sentencing, Anderson objected to the

PSR’s classification of his prior burglary conviction as a crime of violence. We

review a district court’s interpretation of the U.S.S.G. de novo. United States

v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004) (en banc) (per curiam).

Under U.S.S.G. § 4B1.1(a), a defendant is a “career offender” and subject to an

enhanced sentence if:

(1) the defendant was at least eighteen years old at the time [he]

committed the instant offense of conviction; (2) the instant offense

of conviction is a felony that is either a crime of violence or a

controlled substance offense; and (3) the defendant has at least two

prior felony convictions of either a crime of violence or a controlled

substance offense.

United States v. Garcia, 470 F.3d 1143, 1146 (5th Cir. 2006) (citation omitted).

For purposes of this section of the Guidelines, a crime of violence is any state

or federal offense punishable by a term of imprisonment exceeding one year

that: “(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another, or (2) is burglary of a dwelling,

arson, or extortion, . . . or otherwise involves conduct that presents a serious

potential risk of physical injury to another.” Id. at 1146–47 (citing U.S.S.G.

§ 4B1.2(a)(1)-(2)) (internal quotation marks omitted). The court should focus

on the elements of the offense derived from the statute of conviction and not

the particular conduct that led to the defendant’s conviction. Id. at 1147.

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When a statute can be violated in a way that constitutes a crime of

violence and in a way that does not, the court is free to review other judicial

documents to make its determination as to the appropriate classification. See

United States v. Garcia-Arellano, 522 F.3d 477, 480–81 (5th Cir. 2008). These

documents include the indictment, judicial confession, and the district court’s

judgment. See id. at 481.

Anderson argues that his prior burglary conviction does not qualify as a

crime of violence because there are several methods by which a defendant may

commit a burglary under Texas Penal Code Ann. § 30.02, and at least one of

the methods does not satisfy the requirements of generic burglary. Anderson

notes that there is no document that indicates which subsection of § 30.02 he

violated. Therefore, Anderson claims that his burglary conviction cannot

qualify as a crime of violence under U.S.S.G. § 4B1.1. We disagree and

conclude that the district court did not err by finding that Anderson’s prior

burglary conviction qualifies as a crime of violence.

This determination largely depends upon whether the district court

correctly found, by reference to permissible documents, that Anderson pleaded

guilty to committing burglary in the generic sense—that is by entering a

dwelling without permission with the intent to commit a crime therein. In

Anderson’s judicial confession related to the prior burglary, he admitted to

committing the offense as alleged in the indictment. His indictment included

language from both Texas Penal Code Ann. § 30.02(a)(1) and § 30.02(a)(3). We

have held that a conviction under subsection (a)(1) qualifies as a crime of

violence because it is equivalent to the enumerated offense of generic burglary.

United States v. Garcia-Mendez, 420 F.3d 454, 456–57 (5th Cir. 2005).

However, subsection (a)(3) is not equivalent to the enumerated offense of

burglary because a violation of subsection (a)(3) does not require proof of the

defendant’s intent to commit a crime in the dwelling. Having reviewed the

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permissible documentation that accompanied the adjudication of the prior

burglary conviction, we conclude that it qualifies as a crime of violence.

Anderson admitted in his judicial confession that he entered his victim’s home

without consent with the intent to commit a theft. Therefore, the judicial

confession makes clear that Anderson pleaded guilty to an offense that meets

the elements of generic burglary. The district court properly treated this

conviction as a crime of violence. Accordingly, we conclude that the district

court did not err in finding that Anderson was a career criminal.

III. CONCLUSION

For the foregoing reasons, we affirm Anderson’s convictions and

sentence.

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