UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
_________________
No. 99-20924 (Summary Calendar) _________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TAWANA SHELETTE COOPER,
Defendant - Appellant.
Appeal from the United States District Court For the Southern District of Texas District Court Number H-99-CR-206-1
June 26, 2000
Before JOLLY, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Tawana Cooper appeals her conviction and sentence for aiding and abetting the robbery of
a credit union in violation of 18 U.S.C. § 2113(a). We affirm.
Alonzo Warren robbed the branch of the SCH Federal Credit Union (“SCH”) located at 2002
Holcombe Street (the “Holcombe branch”). Warren pled guilty to the charges against him and
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. testified against Cooper, his girlfriend, who had been a teller at the Holcombe branch until her firing
a few weeks earlier. Warren claimed that they planned the robbery together, that Cooper gave him
significant inside information which facilitated the robbery, and that—even though he performed the
robbery alone—she offered him assistance before and after the robbery.
Cooper was charged in a two-count indictment with: (1) bank robbery by force and with a
dangerous weapon, in violation of 18 U.S.C. § 2113(a), (d); and (2) using a firearm during a crime
of violence, in violation of 18 U.S.C. § 924(c)(1). She was found guilty only of the lesser included
offense of simple robbery under § 2113(a). The court sentenced her to 108 months after enhancing
her sentence for use of a gun during her offense and after denying her request for a reduction for
minimal participation.
Cooper first challenges her conviction, arguing that the evidence against her was insufficient
and that the trial court should have granted her motion for a judgment of acquittal. We review the
district court’s denial of her motion for acquittal de novo, determining whether, “viewing the evidence
in the light most favorable to the verdict and drawing all reasonable inferences from the evidence in
support of the verdict, a rational trier of fact could have found that the evidence established the
essential elements of the offense beyond a reasonable doubt.” United States v. Ferguson, — F.3d
—, 2000 WL 543817, at *4 (5th Cir. May 4, 2000). We reverse the conviction if “the evidence gives
equal or nearly equal circumstantial support to a theory of guilt, as well as to a theory of innocence.”
Id.
Cooper argues that there was insufficient evidence that the Holcombe branch was federally
insured, a jurisdictional element of the offense which the government had to prove beyond a
reasonable doubt. See 18 U.S.C. § 2113(a); United States v. Guerrero, 169 F.3d 933, 944 (5th Cir.
-2- 1999). At trial, the government submitted an affidavit from a regional director of the National Credit
Union Administration which stated:
SCH Federal Credit Union, charter number 17486, whose main office is located at 1601 Pierce, Houston, Texas 77003, was first insured by the National Credit Union Share Insurance Fund (NCUSIF) on November 2, 1971. . . . ... SCH Federal Credit Union has been continuously insured since becoming insured by the NCUSIF, and in particular, was insured on June 26, 1998.
Cooper argues that this affidavit does not show that every SCH branch was federally insured, because
it suggests that only the branch at 1601 Pierce (the “Pierce branch”) was insured. However, a jury
could reasonably have concluded that each SCH branch was insured from the affidavit’s unchallenged
reference to the fact that “SCH . . . has been continuously insured,” and its menti on of the Pierce
branch only to specify the location of SCH’s main office. Coupled with testimony from the
Holcombe branch manager that the Holcombe branch was an SCH branch at the time of the robbery
and that his supervisor was located at the Pierce branch, the affidavit provides sufficient proof that
the Holcombe branch was federally insured. See United States v. Williams, 592 F.2d 1277, 1282 (5th
Cir. 1979) (finding sufficient evidence of insured status, even though it “was probably close to the
minimum we could allow,” where: (1) one officer testified that the bank was insured and that the
specific office was a branch of the bank; and (2) another officer testified that the bank was insured,
and that, even though he did not know if the insurance contract provided this, he believed all the
branches were similarly insured).
Cooper also argues that there was insufficient evidence that she participated in the robbery.
She concedes that an aiding and abetting conviction was possible under the indictment, see United
States v. Sorrells, 145 F.3d 744, 752 (5th Cir. 1998), but she argues that aiding and abetting was not
-3- established because there was insufficient evidence of an affirmative act by her to help the
robbery, see id. at 753 (“[T]o convict a defendant of aiding and abetting a crime under 18 U.S.C. §
2, ‘the Government must prove (1) that the defendant associated with the criminal venture, (2)
participated in the venture, and (3) sought by action to make the venture succeed.’”) (citation
omitted).
Cooper’s argument is based on her attempt to isolate each piece of evidence against her and
offer innocuous explanations for each alone. This contradicts our directive that we review the
evidence against her in the aggregate. See United States v. Burton, 126 F.3d 666, 677 (5th Cir. 1997).
Viewing the evidence this way, it clearly sufficiently showed her participation: Warren testified that
Cooper helped plan the robbery; she gave him crucial information about the Holcombe branch; she
originally intended to take part in the robbery; she allowed him to use her gun once their original plan
failed and they decided to have him rob the Holcombe branch alone;1 she bought the duct tape that
he used; she called his employer to help him get the day off from work so he could effect the robbery;
and she helped him count, spend, and store the money after the robbery. Cf. id. at 678 (“The jury
reasonably could have found that the use of Carr's vehicle in the robbery, coupled with his sham
stolen car report, established that Carr was associated with the robbery, that he participated in it, and
1 Warren testified that, acting on Cooper’s information, they planned to rob the Holcombe branch after its biweekly receipt of a large shipment of money.
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UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
_________________
No. 99-20924 (Summary Calendar) _________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TAWANA SHELETTE COOPER,
Defendant - Appellant.
Appeal from the United States District Court For the Southern District of Texas District Court Number H-99-CR-206-1
June 26, 2000
Before JOLLY, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Tawana Cooper appeals her conviction and sentence for aiding and abetting the robbery of
a credit union in violation of 18 U.S.C. § 2113(a). We affirm.
Alonzo Warren robbed the branch of the SCH Federal Credit Union (“SCH”) located at 2002
Holcombe Street (the “Holcombe branch”). Warren pled guilty to the charges against him and
* 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. testified against Cooper, his girlfriend, who had been a teller at the Holcombe branch until her firing
a few weeks earlier. Warren claimed that they planned the robbery together, that Cooper gave him
significant inside information which facilitated the robbery, and that—even though he performed the
robbery alone—she offered him assistance before and after the robbery.
Cooper was charged in a two-count indictment with: (1) bank robbery by force and with a
dangerous weapon, in violation of 18 U.S.C. § 2113(a), (d); and (2) using a firearm during a crime
of violence, in violation of 18 U.S.C. § 924(c)(1). She was found guilty only of the lesser included
offense of simple robbery under § 2113(a). The court sentenced her to 108 months after enhancing
her sentence for use of a gun during her offense and after denying her request for a reduction for
minimal participation.
Cooper first challenges her conviction, arguing that the evidence against her was insufficient
and that the trial court should have granted her motion for a judgment of acquittal. We review the
district court’s denial of her motion for acquittal de novo, determining whether, “viewing the evidence
in the light most favorable to the verdict and drawing all reasonable inferences from the evidence in
support of the verdict, a rational trier of fact could have found that the evidence established the
essential elements of the offense beyond a reasonable doubt.” United States v. Ferguson, — F.3d
—, 2000 WL 543817, at *4 (5th Cir. May 4, 2000). We reverse the conviction if “the evidence gives
equal or nearly equal circumstantial support to a theory of guilt, as well as to a theory of innocence.”
Id.
Cooper argues that there was insufficient evidence that the Holcombe branch was federally
insured, a jurisdictional element of the offense which the government had to prove beyond a
reasonable doubt. See 18 U.S.C. § 2113(a); United States v. Guerrero, 169 F.3d 933, 944 (5th Cir.
-2- 1999). At trial, the government submitted an affidavit from a regional director of the National Credit
Union Administration which stated:
SCH Federal Credit Union, charter number 17486, whose main office is located at 1601 Pierce, Houston, Texas 77003, was first insured by the National Credit Union Share Insurance Fund (NCUSIF) on November 2, 1971. . . . ... SCH Federal Credit Union has been continuously insured since becoming insured by the NCUSIF, and in particular, was insured on June 26, 1998.
Cooper argues that this affidavit does not show that every SCH branch was federally insured, because
it suggests that only the branch at 1601 Pierce (the “Pierce branch”) was insured. However, a jury
could reasonably have concluded that each SCH branch was insured from the affidavit’s unchallenged
reference to the fact that “SCH . . . has been continuously insured,” and its menti on of the Pierce
branch only to specify the location of SCH’s main office. Coupled with testimony from the
Holcombe branch manager that the Holcombe branch was an SCH branch at the time of the robbery
and that his supervisor was located at the Pierce branch, the affidavit provides sufficient proof that
the Holcombe branch was federally insured. See United States v. Williams, 592 F.2d 1277, 1282 (5th
Cir. 1979) (finding sufficient evidence of insured status, even though it “was probably close to the
minimum we could allow,” where: (1) one officer testified that the bank was insured and that the
specific office was a branch of the bank; and (2) another officer testified that the bank was insured,
and that, even though he did not know if the insurance contract provided this, he believed all the
branches were similarly insured).
Cooper also argues that there was insufficient evidence that she participated in the robbery.
She concedes that an aiding and abetting conviction was possible under the indictment, see United
States v. Sorrells, 145 F.3d 744, 752 (5th Cir. 1998), but she argues that aiding and abetting was not
-3- established because there was insufficient evidence of an affirmative act by her to help the
robbery, see id. at 753 (“[T]o convict a defendant of aiding and abetting a crime under 18 U.S.C. §
2, ‘the Government must prove (1) that the defendant associated with the criminal venture, (2)
participated in the venture, and (3) sought by action to make the venture succeed.’”) (citation
omitted).
Cooper’s argument is based on her attempt to isolate each piece of evidence against her and
offer innocuous explanations for each alone. This contradicts our directive that we review the
evidence against her in the aggregate. See United States v. Burton, 126 F.3d 666, 677 (5th Cir. 1997).
Viewing the evidence this way, it clearly sufficiently showed her participation: Warren testified that
Cooper helped plan the robbery; she gave him crucial information about the Holcombe branch; she
originally intended to take part in the robbery; she allowed him to use her gun once their original plan
failed and they decided to have him rob the Holcombe branch alone;1 she bought the duct tape that
he used; she called his employer to help him get the day off from work so he could effect the robbery;
and she helped him count, spend, and store the money after the robbery. Cf. id. at 678 (“The jury
reasonably could have found that the use of Carr's vehicle in the robbery, coupled with his sham
stolen car report, established that Carr was associated with the robbery, that he participated in it, and
1 Warren testified that, acting on Cooper’s information, they planned to rob the Holcombe branch after its biweekly receipt of a large shipment of money. Their original plan was to conduct the robbery while Cooper was working: Warren would follow her into work, order her and the other female on duty to lie down, and then remove the money. The presence of Cooper and the other employee alone would allow Warren to effect the robbery without using a weapon. Cooper would then throw off the police by offering a description of Warren which contradicted the other employee’s description. This plan went astray when Warren and Cooper, who lived together, overslept on the morning of the planned robbery. This forced them to push back their plan until two weeks later, when the branch received another money shipment. By this time, however, Cooper had been fired. Knowing that the manager would be at the branch during the planned robbery, and concerned that he might attempt to be a “hero,” Warren decided to bring a gun and duct tape and to go alone.
-4- that he ‘sought by action to make the venture succeed.’”).
Cooper next challenges the five-level sentence enhancement she received for displaying a
firearm during the robbery. See U.S.S.G. § 2B3.1(b)(2)(C) (“[I]f a firearm was brandished,
displayed, or possessed, increase by 5 levels . . . .”). The court enhanced her sentence after
concluding that it was foreseeable to her that Warren would use the gun. We review the court’s
interpretation of the Guidelines de novo and its factual findings for clear error. See United States v.
Phillips, 210 F.3d 345, 351 (5th Cir. 2000).
Cooper argues that because the jury acquitted her of robbery with a firearm, the court’s
decision to sentence her based on using a firearm violated her constitutional rights by conflicting with
the jury verdict. We have previously rejected similar arguments, noting that, because conviction
requires a different showing of proof than a sentencing enhancement, an acquittal does not preclude
an enhancement on similar grounds. See United States v. Buchanan, 70 F.3d 818, 827-28 (5th Cir.
1995). Here, the enhancement was proper because there was reliable evidence that Cooper gave the
gun t o Warren knowing he intended to use it in the robbery. See U.S.S.G. § 2B3.1 (allowing the
enhancement); id. § 1B1.3(a)(1)(B) (including among relevant conduct, “in the case of a jointly
undertaken criminal act ivity[,] . . . all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity.”).
Finally, Cooper challenges the district court’s denial of her motion for a reduction in her
sentence for minimal participation. See U.S.S.G. § 3B1.2(a) (“If the defendant was a minimal
participant in any criminal activity, decrease by 4 levels.”). This adjustment is “used infrequently,”
see id. comment. (n.2), and we review its denial for clear error, see United States v. Waskom, 179
F.3d 303, 313 (5th Cir. 1999).
-5- To merit the reduction, Cooper had to show that she was “substantially less culpable than the
average participant . . . . by a preponderance of the evidence.” United States v. Posada-Rios, 158
F.3d 832, 880 (5th Cir. 1998). She argues that the jury’s “‘not guilty’ finding[s] in regard to the
aggravating elements, as a matter of law assigns a mitigating, minimal, minimum role to Cooper’s
conduct.” She cites no authority for this incorrect proposition. The jury did not acquit her of
involvement in the offense, only of using a gun in the offense. It did convict her of aiding and
abetting, based on the substantial assistance she provided to Warren. In light of her role in planning,
providing Warren with supplies and information, and helping him count and spend the money after
the robbery, it was not clear error for the court to deny her reduction request.
Accordingly, we AFFIRM Cooper’s conviction and sentence.
-6-