United States v. Larry Smith
2016 U.S. App. LEXIS 5017
5th Cir.2016Background
- Between Aug–Dec 2010, Smith, Johnson, and co-conspirators committed a series of Houston bank robberies that escalated from note-robberies to violent takeover robberies.
- Superseding indictment charged Smith with conspiracy, multiple bank-robbery counts, and three § 924(c) firearm counts; charged Johnson with conspiracy, bank robberies, two § 924(c) counts, and a hostage-taking count (later dismissed pretrial).
- Trial lasted four days; a jury convicted both Appellants on all counts. Smith was sentenced to 1,080 months; Johnson to 744 months plus supervised release.
- At trial the government introduced voluminous phone records summarized under Fed. R. Evid. 1006, eyewitness and co-conspirator testimony, DNA evidence (expert: could not positively match Johnson but could not exclude him), and agent testimony recounting investigative statements.
- On appeal Johnson challenged evidentiary rulings (Rule 1006 charts, lay/expert testimony, Confrontation Clause issues) and his § 3B1.4 "use of minor" enhancement; Smith challenged four sentencing enhancements (§ 2B3.1 abduction, § 3B1.4 use of minor, § 2B3.1(b)(3)(A) bodily injury, § 3C1.1 obstruction).
- The Fifth Circuit affirmed convictions and sentences, holding evidentiary rulings were correct or harmless and that sentencing enhancements were supported or harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of phone-summary charts (Rule 1006) | Johnson: charts should be accompanied by underlying records in evidence and a limiting instruction | Government/District Court: Rule 1006 satisfied; underlying records provided pretrial; no limiting instruction required | Affirmed: Admission proper under Rule 1006; precedent forecloses requiring originals or limiting instruction |
| Lay/expert testimony by investigators (glove/DNA statements) | Johnson: Detective Albin and Agent Michalek gave speculative/expert testimony beyond lay scope and misstated DNA evidence | Government: testimony was within scope (redirect tied to cross) and any error harmless given overwhelming evidence | Affirmed: Redirect comparison proper; any Michalek error harmless due to overwhelming evidence |
| Confrontation Clause (admission of cooperator statements via agent) | Johnson: Agent Michalek’s recounting of out-of-court statements violated Crawford/Bruton | Government: Some declarants testified at trial; other statements were not offered for truth but to explain investigatory steps | Affirmed: No Crawford/Bruton violation—Turner testified; other statements not admitted for truth or were non-incriminating/harmless |
| Use-of-minor § 3B1.4 enhancement (Johnson & Smith) | Johnson/Smith: enhancement requires defendant’s personal use; mere association or co-conspirator’s foreseeable use insufficient; minor was only present or marginally involved | Government: evidence shows active roles (getaway driver) and recruitment/assignment by Smith; Johnson directed certain robberies and split proceeds | Affirmed: Enhancement supported for Count 10S (Johnson) and Count 12S (Smith); any erroneous application to Count 14S harmless to Guidelines range |
| Abduction enhancement § 2B3.1(b)(4)(A) (Smith) | Smith: forced movement within bank is not movement to "another location" so enhancement inapplicable | Government: Fifth Circuit treats forced movement within bank (e.g., to vault) as sufficient | Affirmed: forced movement within bank qualifies as abduction under circuit precedent |
| Bodily-injury enhancement § 2B3.1(b)(3)(A) (Smith) | Smith: injuries were minimal and not "significant" as defined | Government: PSR described bruising, scratches, hair loss, pain—sufficient under circuit law | Affirmed: minor but identifiable injuries meet the enhancement standard in this circuit |
| Obstruction enhancement § 3C1.1 (Smith) | Smith: PSR relied on uncorroborated informant hearsay; insufficient evidence | Government: PSR allegations supported by informant report | Affirmed (harmless): even if erroneous, removing enhancement would not change Guidelines range |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause requires opportunity for cross-examination of testimonial statements)
- Bruton v. United States, 391 U.S. 123 (co-defendant confessions and confrontation limits)
- United States v. Valencia, 600 F.3d 389 (Rule 1006: underlying records need not be admitted into evidence)
- United States v. Williams, 264 F.3d 561 (summary charts meeting Rule 1006 are evidence and no limiting instruction required)
- United States v. Miller, 607 F.3d 144 (standard of review for Guidelines interpretations and factual findings)
- United States v. Molina, 469 F.3d 408 (minor must play active role for § 3B1.4 enhancement)
- United States v. Robinson, 654 F.3d 558 (upholding § 3B1.4 where evidence supported inference defendant directed a minor)
- United States v. Garcia-Gonzalez, 714 F.3d 306 (harmless error for Guidelines calculation when correction would not change range)
- United States v. Washington, [citation="500 F. App'x 279"] (Fifth Circuit treats forced movement within bank as "abduction" for § 2B3.1 enhancement)
- United States v. Jefferson, 258 F.3d 405 (examples of bodily-injury enhancement for identifiable injuries)