United States v. Smith , 43 F. App'x 529 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4890
ANASTASHA SMITH,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4089
RAYMOND MCGEE, a/k/a Raymond
Washington,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-00-668(DWS))
Submitted: March 12, 2002
Decided: April 1, 2002
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. SMITH
COUNSEL
John H. Hare, Assistant Federal Public Defender, Columbia, South
Carolina; Cameron Bruce Littlejohn, Jr., Columbia, South Carolina,
for Appellants. Stacey Denise Haynes, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Anastasha Smith appeals her conviction by a jury of unarmed bank
robbery and conspiracy to commit unarmed bank robbery, in violation
of 18 U.S.C.A. §§ 371, 2113(a) (West 2000), and her seventy-one
month sentence. Raymond McGee appeals his jury conviction of
unarmed bank robbery and conspiracy to commit unarmed bank rob-
bery and his 240-month sentence. Their attorneys jointly filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967),
addressing the issues of whether the district court violated the rule of
completeness as to a statement made by Smith, improperly penalized
Smith for her silence at sentencing, and erred in a jury instruction.
McGee filed a pro se supplemental brief raising additional issues. We
affirm.
The first issue raised on behalf of Smith in the Anders brief is
whether the district court erred in determining that the rule of com-
pleteness did not require the introduction into evidence of omitted
portions of Smith’s oral statement made to an FBI agent, which was
redacted to remove references implicating McGee. Because the rule
of completeness as codified in Fed. R. Evid. 106 applies only to writ-
ings or recorded statements and not to conversations, the rule of com-
pleteness is inapplicable to Smith’s oral statement. United States v.
Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996). Therefore, the district
UNITED STATES v. SMITH 3
court did not abuse its discretion in overruling Smith’s objection to
the exclusion from evidence of the contested portions of her state-
ments.
The next argument presented on behalf of Smith in the Anders brief
is that the district court held Smith’s silence against her at the sen-
tencing hearing, in violation of Mitchell v. United States, 526 U.S.
314, 328-30 (1999) (holding that a defendant who pleads guilty
retains the Fifth Amendment privilege against self-incrimination
through the sentencing proceeding "with regard to factual determina-
tions respecting the circumstances and details of the crime," but
refraining from deciding whether a defendant’s silence at the sentenc-
ing hearing "bears upon the determination of a lack of remorse."). At
the sentencing hearing, Smith opted not to make a statement. Counsel
stated Smith was remorseful. In commenting on Smith’s sentence, the
district court explicitly stated, "I did not decide to go up in this range
because of anything that was said or wasn’t said." (R. 44, Tr. 10-11.)
Instead, the district court clearly based Smith’s sentence on the evi-
dence and the presentence report. Thus, the district court did not
improperly consider Smith’s silence.
The final issue raised as to both Smith and McGee in the Anders
brief is that the district court erred by instructing the jury over defense
counsel’s objection, "[t]herefore, the testimony of a single witness
which produces in your minds belief in the likelihood of truth beyond
a reasonable doubt is sufficient for the proof of any fact and would
justify a verdict in accordance with that testimony, even though a
number of witnesses may have testified to the contrary." (R. 48, Tr.
6-7.) We review the content of a jury instruction for abuse of discre-
tion. See United States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995).
Contrary to Smith and McGee’s assertion, this instruction did not
impermissibly lessen the Government’s burden of proof. Moreover,
the district court instructed the jury numerous times that the Govern-
ment had to prove the charges against the defendants beyond a rea-
sonable doubt. Thus, we conclude that the district court did not abuse
its discretion in giving this jury instruction.
McGee raises numerous additional issues in his pro se supplemen-
tal brief, including a blanket argument that counsel was ineffective
during trial as to the issues raised in his brief and for failing to raise
4 UNITED STATES v. SMITH
the issues on appeal.* McGee’s next claim relates to an unopposed
motion by the Government, made during trial, to modify the indict-
ment to charge the lesser included offenses of unarmed bank robbery
and conspiracy to commit unarmed bank robbery in violation of
§§ 371 and 2113(a). We reject McGee’s contentions that the district
court erred in granting the Government’s motion and that the amend-
ment deprived the district court of subject matter jurisdiction. See
Fed. R. Crim. P. 31(c); United States v. Gaddis, 424 U.S. 544, 550
(1976); United States v. Whitley, 759 F.2d 327, 331 (4th Cir. 1985).
Moreover, indicting McGee for armed bank robbery and conspiracy
to commit armed bank robbery in violation of §§ 371, 2113(a), (d),
put him on notice he could be convicted of the lesser-included
offenses of unarmed bank robbery and conspiracy to commit unarmed
bank robbery, in violation of §§ 371, 2113(a). See United States v.
Cobb, 905 F.2d 784, 790-91 (4th Cir. 1990) (recognizing sufficiency
of indictment is governed by practical concerns). Furthermore, the
amendment narrowed the charges and lessened the potential maxi-
mum punishment, rather than broadening the charges. McGee
presented no evidence demonstrating that he was surprised or preju-
diced by the amendment or was prevented from presenting a full
defense, and the amendment of the indictment did not expose McGee
to double jeopardy. See United States v. Fletcher, 74 F.3d 49, 53 (4th
Cir. 1996). Finally, the lack of objection to the indictment and failure
to raise the issue on appeal do not amount to ineffective assistance of
counsel that is conclusively demonstrated by the record sufficient to
be considered on direct appeal.
McGee also attacks the sufficiency of the evidence to support his
convictions and counsel’s failure to raise the issue on appeal. We
review a jury verdict for sufficiency of the evidence by determining
whether there is substantial evidence, when viewed in the light most
favorable to the Government, to support the verdict. Glasser v. United
States, 315 U.S. 60, 80 (1942). In determining whether the evidence
*Claims of ineffective assistance of counsel may not be raised on
direct appeal unless the record conclusively demonstrates counsel’s rep-
resentation was ineffective. United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). Accordingly, to the extent we decline to consider such claims
in this proceeding, McGee may present them in an appropriate motion
for post-conviction relief.
UNITED STATES v. SMITH 5
in the record is substantial, we examine whether there is evidence a
reasonable finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc). We must consider circumstantial as well as direct evidence and
allow the Government the benefit of all reasonable inferences from
the facts proven to those sought to be established. United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Our reversal of a con-
viction on grounds of insufficient evidence is confined to cases in
which the prosecution’s failure is clear. United States v. Jones, 735
F.2d 785, 791 (4th Cir. 1984). After a review of the evidence
presented at trial, we conclude that the Government presented suffi-
cient evidence supporting McGee’s convictions for his involvement
in the bank robbery. Additionally, McGee’s claim of ineffective assis-
tance of counsel for failing to pursue this claim on appeal is not con-
clusively supported by the record, and, thus, is not reviewable in this
appeal.
Next, McGee complains that references to McGee in Smith’s state-
ment to the FBI agent were replaced with references to "a friend" and
"the friend," in violation of his rights under the Confrontation Clause,
as articulated in Bruton v. United States, 391 U.S. 123, 126 (1968)
(holding that a defendant’s Sixth Amendment right to cross-examine
witnesses against him is violated when the defendant is inculpated by
an out-of-court statement by a non-testifying co-defendant that is
admitted at their joint trial). In Richardson v. Marsh, 481 U.S. 200(1987), however, the Supreme Court held the Confrontation Clause is
not violated by the admission of a non-testifying co-defendant’s con-
fession that has been redacted to eliminate the defendant’s name and
any reference to his existence where a limiting instruction is given,
even though the statement is incriminating to the defendant when it
is linked with other evidence introduced at trial. Id. at 211; see also
United States v. Vogt, 910 F.2d 1184, 1191-92 (4th Cir. 1990) (hold-
ing that a co-defendant’s confession is admissible when it is redacted
to replace the defendant’s name with a symbol or a neutral pronoun).
Because McGee did not object at trial to the admission of Smith’s
redacted statement or request a limiting instruction, our review is for
plain error. See United States v. Olano, 707 U.S. 725, 732-37 (1993).
We conclude that Smith’s statement, standing alone, could not be
6 UNITED STATES v. SMITH
fairly understood to incriminate McGee. In addition, even assuming
the admission of Smith’s statement without a limiting instruction con-
stituted Bruton error, the error did not affect McGee’s substantial
rights because other overwhelming evidence established McGee’s
guilt. See Harrington v. California, 395 U.S. 250, 254 (1969) (hold-
ing that an alleged Bruton violation is subject to harmless error
review). Furthermore, because the redacted statement conformed with
Bruton and Richardson, the record does not conclusively show coun-
sel’s performance fell below a reasonable standard for consideration
of McGee’s claim of ineffective assistance of counsel on appeal.
McGee also argues the district court erred when it denied Smith’s
motion to sever the trials. We review the trial court’s decision to sever
for abuse of discretion. See United States v. Brooks, 957 F.2d 1138,
1145 (4th Cir. 1992). Because co-conspirators should be tried
together and McGee failed to make the requisite strong showing of
prejudice, we conclude that the district court did not abuse its discre-
tion in refusing to sever the trials. Moreover, McGee’s trial counsel
was not ineffective for declining to set forth a separate motion to
sever or an objection to the denial of Smith’s severance motion. Id.McGee next contends prosecutorial misconduct violated his rights
to due process and a fair trial. We find no such misconduct. Further-
more, we find the record does not conclusively show that defense
counsel was ineffective during these proceedings in regard to the
prosecutor’s conduct.
McGee claims he was denied his right to present a defense when
the district court sustained the Government’s objection to a question
about fingerprints posed to the FBI agent based upon hearsay and fail-
ure to lay a proper foundation. We conclude that the evidentiary rul-
ing was not an abuse of the trial court’s discretion. See Bostian, 59
F.3d at 480 (providing the standard of review). Further, although
counsel could have resumed his line of questioning after laying the
proper foundation, the record does not conclusively show he was inef-
fective in failing to do so.
Finally, McGee contends that Pritchard’s presence in the court-
room during testimony of other witnesses violated the court’s seque-
stration order, and he should not have been allowed to testify. No
UNITED STATES v. SMITH 7
objection was made to Pritchard’s testimony; therefore, our review is
for plain error. Olano, 507 U.S. at 732-37. We find no such error.
McGee presents no evidence that Pritchard discussed the prior testi-
mony or that his testimony was tainted by hearing the testimony of
other witnesses. United States v. Cropp, 127 F.3d 354, 363 (4th Cir.
1997). Moreover, the record does not conclusively demonstrate coun-
sel’s representation was ineffective in his handling of this matter.
As required by Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. We therefore affirm
Smith’s and McGee’s convictions and sentences. This court requires
that counsel inform their clients, in writing, of their right to petition
the Supreme Court of the United States for further review. If either
or both clients request that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move in this
court for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on the clients. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED