United States v. Thomas

Opinion

UNITED STATES COURT OF APPEALS for the Fifth Circuit

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No. 95-50612 Summary Calendar _____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

HASHIM ESTEBAN THOMAS, JULIUS RAY SEPHUS, JR. AND STEVEN LEE THOMAS, II,

Defendants-Appellants.

______________________________________________________

Appeal from the United States District Court for the Western District of Texas ______________________________________________________

June 10, 1996

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:1

Hashim Esteban Thomas, Julius Sephus, and Steven Lee Thomas,

II, appeal their convictions for bank robbery, use of a firearm

in connection with the robbery (Sephus and Steven Thomas), and

carjacking (Sephus). We AFFIRM in part, REVERSE in part and

RENDER.

1 Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. I.

Hashim Thomas, Julius Sephus, and Steven Thomas conspired

with 9 other individuals2 to rob the Normangee State Bank in

Normangee, Texas. The heavily armed group of 12 traveled from

Houston, Texas, to Normangee in three cars and made final plans

for the robbery at Hopewell Cemetery, just outside Normangee. As

they prepared for the robbery, the group distributed gloves, ski

masks, bandannas, and bullet proof vests amongst themselves.

The group twice traveled from the cemetery into town only to

discover the bank was not yet open. The group, frustrated that

the bank was not yet open, gathered again at the cemetery and

some of them went to a convenience store to buy beer. Steven

Thomas argued that they should rob the convenience store and kill

everyone inside so there would be no witnesses. No one would

help Steven rob the store and the group ultimately agreed to rob

the bank as originally planned.

The third time the group arrived at the bank, it was open.

Steven Thomas, armed with a pistol, entered the bank first.

Several other members of the group, including Hashim Thomas and

Sephus, entered the bank after Thomas. Two of the getaway cars

left the scene during the robbery; consequently, when the group

exited the bank, only one car, a Honda Accord, was there.

2 Jeralene Valverde, Dennis Castaneda, Demetrius Guzman, James Tyrone Hoskins, Anthony J. Coleman, Marquez Marquette Jones, Rudolfo Alonzo, Jr., Ronnie Donyell Harris, and Gary Harris.

2 Everyone was forced to pile into the Honda Accord, with two

members of the group riding in the trunk.

As they left the area, shots were fired from the passenger

side of the Honda. A truck pursued the Honda and Demetrius

Guzman, who was riding in the trunk, fired at it. As the group

returned to the cemetery, Sephus was “looking for a car to jack.”

They saw a small grey vehicle in the cemetery ahead of them

driven by Mrs. Ruby Parker, an elderly woman. Sephus approached

the car, tapped on the window, and ordered Mrs. Parker out of the

car. When she attempted to drive away, Sephus shot and killed

her. Steven Thomas and Guzman left in Mrs. Parker’s car, and the

remainder of the group left in the Honda.

Nearly all of the group pleaded guilty. Hashim Thomas,

Sephus, and Steven Thomas proceeded to trial. The jury convicted

Hashim Thomas of bank robbery in violation of 18 U.S.C. § 2113

(a) & (d). The jury convicted Sephus of bank robbery in

violation of 18 U.S.C. § 2113 (a) & (d) and also in violation of

§ 2113 (a) & (e), two counts of using a firearm during the

commission of a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1), and carjacking in violation of 18 U.S.C. § 2119.

Finally, the jury convicted Steven Thomas of bank robbery, in

violation of 18 U.S.C. § 2113 (a) & (d), and use of a firearm

during a crime of violence, in violation of 18 U.S.C. §924(c)(1).

The district court sentenced Hashim Thomas to 240 months’

imprisonment and 3 years’ supervised release. The court

sentenced Sephus to life for the bank robbery conviction under

subsections (a) & (e) and the carjacking conviction, 300 months’

3 imprisonment for the bank robbery conviction under subsections

(a) & (d), to run concurrently with his convictions for bank

robbery and carjacking, and to 60 months’ imprisonment on each of

the two firearm convictions, to run consecutively to the bank

robbery and carjacking convictions. The court sentenced Steven

Thomas to 300 months’ imprisonment for bank robbery under § 2113

(a) & (d) and to 60 months’ imprisonment for the firearm

conviction, to be served consecutively. The court also ordered

restitution of $126,558.64 jointly and severally payable by all

the participants in the robbery. The appellants assert various

errors on appeal.

II.

A. Multiplicitous indictment of Sephus

The jury convicted Sephus of bank robbery under § 2113 (a) &

(d) (count 1) and § 2113 (a) & (e) (count 2). Sephus contends

that his sentence for bank robbery under § 2113 (a) and (e) must

be vacated because the indictment was multiplicitous.

Sephus did not raise this issue in the district court. A

defendant may challenge his convictions as multiplicitous for the

first time on appeal provided the sentences are not to be served

concurrently. United States v. Galvan, 949 F.2d 777, 781 (5th

Cir. 1991). If monetary assessments under 18 U.S.C. § 3013 are

imposed on separate counts of conviction, the sentences are not

concurrent, and the issue of multiplicity of sentences may be

raised for the first time on appeal. Id.

Sephus may raise the multiplicity of sentences issue on

appeal because even though his life sentence for the conviction

4 under § 2113 (a) and (e) and his 300 month term of imprisonment

for the conviction under § 2113 (a) and (d), run concurrently,

the court also imposed a $50 special assessment on each count.

The Government concedes that Sephus’ sentences on counts 1

and 2 are multiplicitous but argues that under a plain error

analysis, the $50 monetary assessment on count two does not rise

to the level of plain error. This court has held, without

reference to plain error, that although there may be separate

convictions under subsections (a), (d), and (e) of § 2113, the

court may not impose more than one penalty. United States v.

Bates, 896 F.2d 912, 913 (5th Cir.), cert. denied, 496 U.S. 929,

942 (1990). The two special assessments are two penalties under

§ 2113.

We agree with both parties that count 2 is multiplicitous.

Accordingly, we reverse Sephus’ conviction under Count 2 of the

indictment, vacate the portion of his sentence attributable to

that count (300 months’ imprisonment and $50 of Sephus’ special

assessment) and affirm his sentence under count 1 (life

imprisonment).3

B. Testimony about plans to rob the convenience store

All three appellants contend that the district court erred

when it allowed testimony about the group’s discussion, just

3 We need not remand to the district court for resentencing on count 1 because neither party requests such a remand and we have no doubt that the district court will impose the same sentence even if we do remand for resentencing. See United States v. Hord, 6 F.3d 276, 280 n.8 (5th Cir. 1993).

5 prior to the bank robbery and carjacking, of whether it should

rob a convenience store and murder the store’s patrons instead of

robbing the bank.

This court reviews decisions on the admissibility of

evidence for abuse of discretion. United States v. Fortenberry,

919 F.2d 923, 925 (5th Cir. 1990), cert. denied, 499 U.S. 930

(1991). Even if error is shown, however, it is subject to a

harmless error analysis. United States v. Jimenez Lopez, 873

F.2d 769, 771 (5th Cir. 1989). An error is harmless if the

reviewing court is sure, after viewing the entire record, that

the error did not influence the jury or had a very slight effect

on its verdict. United States v. Rodriguez, 43 F.3d 117, 123

(5th Cir.), cert. denied, 115 S. Ct. 2260 (1995). Harmless error

analysis also includes an inquiry into whether a curative

instruction was given and whether the properly admitted evidence

is overwhelming. United States v. Pace, 10 F.3d 1106, 1116 (5th

Cir. 1993), cert. denied, 114 S. Ct. 2180 (1994).

We need not decide whether the district court abused its

discretion by admitting the “other act” evidence because, even if

we assume that admission of the challenged testimony was error,

the error was harmless. The challenged testimony was a few brief

sentences from two of the group members and probably had no

effect on the jury’s verdict given the overwhelming evidence of

the appellants’ guilt, which included the inculpatory testimony

of six of their codefendants. Moreover, the trial court promptly

provided a limiting instruction admonishing the jury on how it

could use the testimony.

6 C. Sufficiency of the evidence to convict Steven Thomas

Steven Thomas argues that although he “may have” gone into

the bank, there is insufficient evidence to show that he carried

a gun or committed a robbery by force, violence, or intimidation.

Steven acknowledges the testimony of his co-conspirators which

uniformly placed him inside the bank holding a gun but contends

that this testimony is somehow not credible and notes that none

of the bank employees who testified indicated that he entered the

bank or carried a weapon.

In reviewing the sufficiency of the evidence, this court

must determine whether any reasonable trier of fact could have

found that the evidence established guilt beyond a reasonable

doubt. United States v. Martinez, 975 F.2d 159, 160-61 (5th Cir.

1992), cert. denied, 507 U.S. 943 (1993). Reasonable inferences

are construed in accordance with the jury's verdict and the jury

is solely responsible for determining the weight and credibility

of the evidence. Id. at 161. A guilty verdict may rest upon the

uncorroborated testimony of co-conspirators unless the testimony

is facially incredible. United States v. Bermea, 30 F.3d 1539,

1552 (5th Cir. 1994), cert. denied, 115 S. Ct. 1825 (1995). This

court will not substitute its own determination (or that of

Steven Thomas) for that of the jury. Martinez, 975 F.2d at 161.

The uniform testimony of Steven Thomas’ co-conspirators

established that: Steven entered the bank first, carried a gun,

drew the gun once he was inside the bank, and emerged from the

bank’s vault with his arms full of money. The jury obviously

credited this testimony. Steven’s sufficiency argument fails

7 because a rational jury could have found him guilty of the crimes

charged.

D. Sufficiency of the evidence - Sephus’ carjacking conviction

Sephus contends that the Government failed to prove by

sufficient evidence that he “took” a car from the person and

presence of Ruby Parker as required under 18 U.S.C. § 2119.4

Sephus contends that even though he shot Mrs. Parker, he did not

exercise any control over her vehicle or leave in her vehicle

and, thus, did not “take” her car within the meaning of the

statute. Sephus alternatively argues that even if “taking”

requires only the exercise of dominion or control without

asportation (an appreciable change of location of the property),

there was insufficient evidence to show that he exercised

dominion over Mrs. Parker’s vehicle.

Sephus failed to move for a judgment of acquittal.

Therefore, Sephus' sufficiency-of-the evidence claim is

reviewable only to determine whether there was a manifest

miscarriage of justice. See United States v. Laury, 49 F.3d 145,

151 (5th Cir.), cert. denied, 116 S. Ct. 162 (1995). Such exists

only if the record is devoid of evidence pointing to guilt, or

4 Section 2119, the carjacking statute, provides: [w]hoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, . . . . 18 U.S.C. § 2119 (emphasis added).

8 because the evidence on a key element of the offense is so

tenuous that a conviction would be shocking. Id.

As Sephus himself notes, there was testimony that he “was

looking for a car to jack,” he ordered Mrs. Parker out of the

car, and he shot her when she failed to comply. Through his

actions, Sephus deprived Mrs. Parker of her car. The mere fact

that other members of the group physically drove the car away

from his carjacking does not render the conviction “shocking.”

E. Sentencing of Steven and Hashim Thomas

Hashim and Steven Thomas argue that the murder statute under

which they were sentenced, 18 U.S.C. § 1111, is

unconstitutionally vague.5 Section 1111 provides that “[m]urder

is the unlawful killing of a human being with malice

aforethought.” 18 U.S.C. § 1111. Hashim and Steven contend that

the phrase “malice aforethought” is incomprehensible to the

average person, facially fails to provide any guidelines to what

constitutes “malice aforethought,” and leads to erratic

decisions.

Penal statutes must “define the criminal offense with

sufficient definiteness that ordinary people can understand what

conduct is prohibited and in a manner that does not encourage

5 Hashim and Steven were convicted of bank robbery in violation of 18 U.S.C. § 2113 (a) & (d). The applicable sentencing guidelines, found at U.S.S.G. § 2B3.1, provide that if a victim is killed under circumstances that would constitute murder under § 1111 had the killing taken place within the territorial jurisdiction of the U.S., the first degree murder guideline, § 2A1.1, applies. Accordingly, Hashim and Steven were sentenced under § 2A1.1.

9 arbitrary and discriminatory enforcement.” Buckley v. Collins,

904 F.2d 263, 266 (5th Cir.), cert. denied, 498 U.S. 990 (1990)

(alteration in original), (quoting Kolender v. Lawson, 461 U.S.

352, 357 (1983)). Since neither Steven nor Hashim raised the

void-for-vagueness argument below, we review for plain error.

“Void for vagueness simply means that criminal

responsibility should not attach where one could not reasonably

understand that his contemplated conduct is proscribed.” United

States v. National Dairy Prod. Corp., 372 U.S. 29, 32 (1963).

Section 1111 is clear enough that a reasonable person

contemplating a murder in cold blood, such as Sephus’ murder of

Ruby Parker, would understand that his conduct was proscribed.

The Thomases fail to show error, plain or otherwise.

F. Restitution required of Steven Thomas & Hashim Thomas

Appellants Steven and Hashim Thomas argue that the district

court failed to consider their ability to pay restitution when it

entered a restitution order of $126,558.64, payable jointly by

all the participants in the robbery. Hashim also contends that

the court gave no indication of what the factual basis was for

its decision. Steven and Hashim did not challenge the order of

restitution in the district court so we review for plain error.

The sentencing guidelines provide that restitution shall be

ordered for violations of Title 18. U.S.S.G. § 5E1.1 (1994)

(referring the sentencing court to 18 U.S.C. § 3664). Sentencing

judges are accorded broad discretion in ordering restitution and

are not required to make specific findings on each factor listed

10 in § 3664. See United States v. Ryan, 874 F.2d 1052, 1054 (5th

Cir. 1989). The defendant has the burden of proving that he

cannot pay restitution by objecting and requesting specific

findings concerning his ability to pay. United States v. Reese,

998 F.2d 1275, 1281 (5th Cir. 1993); 18 U.S.C. § 3664(d).

Hashim and Steven Thomas have failed to show that the

district court plainly erred by ordering them to pay restitution.

Calverley, 37 F.3d at 162-63. Their only argument is that they

will have bleak employment prospects upon their release. This,

in itself, is not enough to render a restitution order illegal or

plainly erroneous. United States v. Stafford, 896 F.2d 83, 84

(5th Cir. 1990).

Conclusion

Julius Sephus’ indictment for bank robbery under 18 U.S.C. §

2113 (a) and (e) was improperly multiplicitous. The district

court did not err in admitting testimony of the defendants’ plans

to rob a convenience store and kill its customers. The evidence

was sufficient to convict Steven Thomas of bank robbery, use of a

firearm in connection with a crime of violence, and aiding and

abetting and was sufficient to convict Sephus of carjacking even

though he did not move Mrs. Parker’s car. The sentences of

Steven and Hashim Thomas were proper and the order of restitution

was not plain error. Accordingly, we REVERSE Sephus’ conviction

under § 2113 (a) and (e) and the resulting 300 month sentence and

$50 special assessment, AFFIRM Sephus’ life sentence for his

11 conviction under § 2113 (a) and (d), and AFFIRM the convictions

of Steven and Hashim Thomas in all respects.

AFFIRMED in part, REVERSED in part and RENDERED.