United States v. LauryUnited States v. Laury
- Reporters:
- , ,
- Before:
- Goldberg, Smith, Emilio M. Garza
EMILIO M. GARZA, Circuit Judge:
Defendant Felmon Lakeith Laury appeals his conviction for robbery of a bank by force and violence and by intimidation, in violation of
I
On December 19, 1988, at approximately 12:15 p.m., an armed man entered Planters National Bank in Rosebud, Texas. The robber was wearing a pair of light-colored jeans, Puma tennis shoes, and a dark bandanna across his face. From atop a teller‘s counter, the robber demanded that the bank employees give him all of their
FBI agents received a tip from a confidential informant (“CI“) that, according to one of Laury‘s friends, Laury robbed a bank in Rosebud, Texas in December 1988. In addition, the CI stated that Laury had recently purchased a number of expensive items, even though he was unemployed. The CI also stated that Laury was using an alias and identified Laury‘s place of residence. Based on the CI‘s information, FBI agents obtained a search warrant for Laury‘s residence.1 Executing the search warrant, FBI agents seized a pair of light-colored jeans, a blue bandanna, a bag containing $189.60 in dimes, a pair of Puma tennis shoes, numerous purchase receipts, and a photograph of Laury displaying large sums of money. A special agent in the FBI laboratory compared the shoe print impression left by the robber with the tennis shoes found in Laury‘s apartment, and found that the two shared common
Laury was subsequently indicted for robbery by force and violence and by intimidation, in violation of
At sentencing, the district court arrived at a total offense level of 26, and a criminal history category of VI. The district court denied Laury‘s objection to a two-point increase in his offense level for obstruction of justice. The district court
II
Laury appeals his conviction and sentence, contending that:
- the district court erroneously submitted an aiding and abetting instruction to the jury;
- the prosecution improperly suggested that he and his witnesses should have come forward sooner with his alibi, depriving him of a fair trial;
- the evidence was insufficient to sustain the jury verdict;
- the prosecutor misstated the testimony of witnesses, depriving him of a fair trial;
- the district court erred in adding two points to his offense level for obstruction of justice;
- the district court abused its discretion in upwardly departing from the guidelines;
- the district court erred in denying his motion to suppress evidence seized from his residence; and
- the district court erred in denying his motion to suppress statements he made to FBI agents after his arrest.
III
A
Laury first alleges that the district court erred in instructing the jury that, under
“The standard of review of a defendant‘s claim that a jury instruction was error is `whether the court‘s charge, as a whole, is a correct statement of the law and whether it clearly instructs jurors as to the principles of law applicable to the factual issues confronting them.‘” United States v. Ojebode, 957 F.2d 1218, 1228 (5th Cir. 1992) (quoting United States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990)), cert. denied, 1993 U.S. LEXIS 1313 (Feb. 22, 1993). The court “`may not instruct the jury on a charge that is not supported by the evidence.‘” Id. (quoting United States v. Ortega, 859 F.2d 327, 330 (5th Cir. 1988)). After reviewing the record, we conclude that the aiding and abetting charge was supported by the evidence. Laury testified that he did not rob Planters National Bank. See Record on Appeal, vol. 5, at 319. The bank vice-president testified that he felt that the bank robber must have had an accomplice. See Record on Appeal, vol. 5, at 63-64. The record shows that: (1) Laury expended large amounts of
Even assuming the district court erred in submitting the aiding and abetting instruction, the error was harmless. See
B
Laury claims that his rights to due process and against self-incrimination were violated because (1) the prosecution used his silence to impeach him at trial by suggesting that he should have come forward sooner with his alibi, and (2) the prosecution suggested that Laury‘s alibi witnesses should have come forward sooner with his alibi. At trial, Laury and his alibi witnesses testified that Laury was at his cousin‘s birthday party in Dallas on the date of the robbery. Neither Laury nor the witnesses told authorities about the alibi prior to trial.
1
The alleged improper comments occurred during the prosecutor‘s cross-examination of Laury and in his closing argument:
Q: When did you call Mr. Farnsworth or Mr. Seale or anybody in the FBI and say, “Wait a minute, you‘ve got the wrong guy, here‘s what really happened“? When did you do that?
A: At no time.
Q: When did you call the FBI, Mr. Seale, Mr. Farnsworth or the United States Attorney‘s office and say, “It
couldn‘t have been me on December the 19th, 1988, because I was at a birthday party“? When did you do that? A: I called the FBI agent))
Q: Did you call him and tell him that you were somewhere else on that day?
A: I just told him that I didn‘t commit no robbery.
Q: But you didn‘t tell him where you were, you didn‘t tell him about your alibi?
A: No, sir, and they didn‘t ask.
Q: Waited until you get to court and that‘s when you‘re going to have it all come out?
A: Well, I feel like this, sir))
Q: I‘m not asking you how you feel, sir, just answer my question.
A: Repeat your question, sir.
Q: You‘ve been sitting where for the last several months?
A: Here in jail.
Q: And you‘d rather sit in jail than tell the FBI the truth, is that right?
A: Well, actually since I‘ve been sitting in jail, there hasn‘t no FBI came to see me and))
Q: You didn‘t call them and tell them you had this alibi?
A: I told my attorney.
Record on Appeal, vol. 5, at 327. In his closing argument, the prosecutor stated:
When you look at all of the evidence, when you take everything together, . . . and you couple all of that together with the tennis shoes from the unbiased expert and you listen to the people that wanted to give him an alibi and couldn‘t remember who all was at the party, what everybody else was wearing, and didn‘t even remember))remember when Miss Cooper said that))that [Laury] came and got her in the middle of the party and then left. None of the other witnesses said [Laury] left, said he was there all the time. Yeah, they couldn‘t remember that. They didn‘t tell the FBI he had an alibi. He doesn‘t tell the FBI he has an alibi, there‘s no talk.
Id. at 373.
a
We first address whether any prosecutorial comment aimed at Laury‘s pre-arrest silence was improper. There is no constitutional violation where the prosecution uses pre-arrest silence to impeach a criminal defendant because “no governmental action [has] induced [the defendant] to remain silent.” Jenkins v. Anderson, 447 U.S. 231, 240, 100 S. Ct. 2124, 2129-30, 65 L. Ed. 2d 86 (1980); see also United States v. Collins, 972 F.2d 1385, 1408 n.48, 1409 & n.50 (5th Cir. 1992), petitions for cert. filed, (U.S. Dec. 4, 1992) (No. 92-6813) and 61 U.S.L.W. 3446 (U.S. Dec. 7, 1992) (No. 92-964); United States v. Cardenas Alvarado, 806 F.2d 566, 572 (5th Cir. 1986). Therefore, any constitutional claim that the prosecution improperly commented on Laury‘s pre-arrest silence has no merit.
b
Insofar as the prosecutor‘s comments may be construed as commenting on Laury‘s failure to come forward with his alibi
In Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 610, 49 L. Ed. 2d 91 (1976), the Court held that the due process clause prohibits impeachment of a defendant‘s exculpatory story by using the defendant‘s immediate post-arrest, post-Miranda warnings silence.6 Id. at 619, 96 S. Ct. at 2245. Doyle involved two defendants who, subsequent to their arrest and Miranda warnings, declined to make a statement.7 See id. at 611-14, 96 S. Ct. at 2241-43. At trial, the defendants presented an alibi that they had not previously disclosed to authorities. See id. at 613, 96 S. Ct. at 2242. On cross-examination, the prosecutor questioned the defendants about their failure to disclose their alibi to the police following their arrest. See id. at 2243 & n.5, 96 S. Ct. at 613, 614 & n.5, 615 (The Court held that the cross-examination violated the due process clause.). “The Court‘s conclusion in [Doyle] was based on the
However, in Anderson v. Charles, 447 U.S. 404, 100 S. Ct. 2180, 65 L. Ed. 2d 222 (1980), a defendant voluntarily gave a statement to the police, after arrest and Miranda warnings, and then told a different story at trial. Id. at 405-09, 100 S. Ct. at 2180-83. There the Court held that the prosecutor could properly question the defendant about his prior inconsistent statements. See id. at 409, 100 S. Ct. at 2183. In Anderson, the defendant, charged with murder, gave the police a post-arrest statement describing the location from which he had stolen the victim‘s car. See id. at 405, 100 S. Ct. at 2180. At trial, however, the defendant testified that he had stolen the car from a different location. See id. On cross-examination, the prosecution asked the defendant why he had not previously disclosed the latter version of events, thereby suggesting that this latter version was a recent fabrication. See id. at 405-06, 100 S. Ct. at 2181. The Court held that Doyle did not prohibit the prosecutor‘s cross-examination because “`[t]he questions were not designed to draw meaning from silence [as in Doyle], but to elicit an explanation for a prior inconsistent statement.‘” Id. at 409, 100 S. Ct. at 2182.
Although “`virtually any description of a defendant‘s silence following arrest and a Miranda warning will constitute a Doyle
The alternative tests for determining whether a prosecutor‘s or witness‘s remarks constitute comment on a defendant‘s silence are whether the “manifest intent” was to comment on the defendant‘s silence or, alternatively, whether the character of the remark was such that the jury would “naturally and necessarily” construe it as a comment on the defendant‘s silence. Both the intent of the prosecutor and the character of the remarks are determined by reviewing the context in which they occur, and the burden of proving such intent is on the defendant.
Id. at 381 (citations omitted) (footnotes omitted).
Although Laury made post-arrest statements to FBI agents, he did not discuss his whereabouts during the robbery.8 Therefore, nothing Laury told the FBI agents was inconsistent with his trial testimony that he was at a party on the date of the bank robbery. The prosecutor did not comment on what Laury told FBI agents, but on what he did not tell them. Jurors would naturally and necessarily view the prosecutor‘s line of questioning on cross-examination, as well as his statement in closing argument, as an
Despite any improper prosecutorial comments on Laury‘s immediate post-arrest silence, the record contained sufficient evidence of Laury‘s guilt. See discussion supra part III.A. Therefore, the prosecutor‘s error was not substantial or so prejudicial that Laury‘s trial lacked the fundamental elements of justice. The prosecutor‘s comments did not constitute plain error.
c
The prosecutor‘s comments were also aimed, in part, at Laury‘s failure to come forward with his alibi while he was in jail prior
2
Laury seeks relief based on other instances of alleged prosecutorial misconduct. Laury claims that the prosecutor violated his due process rights by cross-examining his alibi witnesses on their failure to come forward sooner with his alibi, and by commenting on the alibi witnesses’ silence in his closing argument.12 Because Laury did not object to the prosecutor‘s
Q: Well))
A: I was in the state penitentiary myself.
Q: Well, we‘ll get to that in a minute. But how long have you known that he‘s been charged with this bank robbery?
A: I just))I was in the penitentiary when I found out what he was in there for. They just told me he went to report and they locked him up, that‘s all I know about this.
Q: Well, how many times have you talked to him since he‘s been here in Waco, Texas?
A: I talked to him on))talked to him and his girlfriend on the phone.
Q: Well, how many times?
A: One or two times. I don‘t keep up with no phone calls.
Q: Well, over the last period of time))how long have you known that he‘s been charged with this crime?
A: I‘m telling you I was in the penitentiary, came home and found out he was in here.
Q: Well, when did you get out of the penitentiary?
A: I got out of the penitentiary in May.
Q: In May of when?
A: `91.
Q: And so you‘ve known since May of `91 that he was charged with it?
A: Yeah, I‘ve known it since then.
Q: Okay. And when did you go to the FBI and tell them it couldn‘t have been him because he was at this birthday party?
A: I haven‘t talked to a FBI or city official or county or nobody.
Q: You didn‘t tell anybody.
A: I haven‘t talked to nobody.
Id. at 208-09. The prosecutor also asked Annette Curry about her failure to come forward with Laury‘s alibi:
Q: When did you call the police and tell them that it couldn‘t have been [Laury] that did this robbery because he was with you?
A: Who called the police?
Q: Did you?
A: No.
Q: You hadn‘t ever called the police or the FBI?
A; No.
Q: Well, how long have you known he‘s been charged with this crime?
A: When the lawyer))I guess the DA or whoever he is))came over to the apartment to talk to me that day.
Id. at 218. In addition, the prosecutor in his closing argument commented on the witnesses’ silence: “[The alibi witnesses] didn‘t tell the FBI that [Laury] had an alibi.” Id., vol. 5, at 373.
C
Laury argues that the evidence was insufficient to sustain the jury‘s verdict because the prosecution only presented circumstantial evidence, and never produced a witness that could
After reviewing the record, we find that it contains an abundance of evidence pointing to guilt. See discussion supra part III.A. Accordingly, no manifest miscarriage of justice has been shown in finding Laury guilty of robbery.
D
Laury alleges that the prosecutor mischaracterized the testimony of his witnesses, depriving him of his constitutional right to a fair trial. Because Laury failed to object to the prosecutor‘s comments at trial, we review the statements for plain error. See United States v. Davis, 831 F.2d 63, 66 (5th Cir. 1987).
Laury argues that the prosecutor, in his closing argument, improperly inferred that Dinky admitted that Laury owned the Puma tennis shoes seized from his apartment. In closing argument, an attorney may “assist the jury in analyzing, evaluating, and applying the evidence.” United States v. Morris, 568 F.2d 396, 401 (5th Cir. 1978). Accordingly, “[a]n attorney may state to the jury the inferences and conclusions he wishes them to draw” as long as they are based on the evidence. Davis, 831 F.2d at 66; see also Morris, 568 F.2d at 401 (During closing argument, an attorney has a “right to state his contention as to the conclusions that the
Laury also claims that the prosecutor mischaracterized the testimony of his witnesses by stating that they testified that Laury had been present at his cousin‘s party the entire time, even though Dinky testified that Laury left the party to pick her up. See Record on Appeal, vol. 5, at 372-73 (“[R]emember when [Dinky] said that))that [Laury] came and got her in the middle of the party and then left. None of the other witnesses said [Laury] left, said he was there all the time.“). Although the prosecutor was correct that none of these witnesses testified that Laury had left the party, he misstated these witnesses’ testimony, because no one
E
Laury next contends that the district court erred in adding two points to his base offense level for obstruction of justice.17 See
The district court found that Laury obstructed justice by testifying untruthfully as to the source of the money he spent))in excess of $26,000 in cash))following the date of the bank robbery. It is proper for the district court to enhance a defendant‘s sentence for obstruction of justice where the defendant committed perjury by giving false testimony at trial. See United States v. Dunnigan, 1993 U.S. LEXIS 1779, at *11-*17 (Feb. 23, 1993) (upholding obstruction of justice enhancement where district court disbelieved defendant‘s trial testimony that she was not involved in a conspiracy); United States v. Goldfaden, 959 F.2d 1324, 1331 (5th Cir. 1992) (upholding obstruction of justice adjustment where defendant gave perjurious testimony); United States v. Velasquez-Mercado, 872 F.2d 632, 636 (5th Cir.) (upholding two-point adjustment where district court found that defendant committed perjury, because it disbelieved defendant‘s claim at sentencing that he did not have a leadership role in recruiting undocumented aliens), cert. denied, 493 U.S. 866, 110 S. Ct. 187, 107 L. Ed. 2d 142 (1989). In Dunnigan, the Supreme Court defined perjury as follows: “A witness testifying under oath or affirmation [commits perjury under section 3C1.1] if the witness gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory.” Id., 1993 U.S. LEXIS at *14. The Supreme Court also stated that if a defendant objects to an obstruction of justice enhancement resulting from the defendant‘s trial testimony, the district court must review the evidence and “make independent findings necessary to establish a willful impediment to or obstruction of justice, or an attempt to do the same, under the perjury definition we have set out.” Id. at 16. In making its findings it is preferable for the district court to make a separate and clear finding on each element of the alleged perjury. Id. It is sufficient, however, if the district court “makes a finding of
In his post-arrest statement, Laury claimed that he had obtained the money from two jobs, and that both Dinky and her grandmother had given him some of the money. See Record on Appeal, vol. 4, at 185-86 (direct examination of Agent Farnsworth). Laury told Agent Farnsworth that he had no other source of income. See id. at 185, 188. At trial, however, Laury stated for the first time that he had obtained most of the money by robbing a drug dealer of $19,000. See id., vol. 5, at 292. In finding that Laury committed perjury, and thereby obstructed justice, the district court stated: “Obviously if the jury‘s verdict means anything, then Mr. Laury did commit perjury when he testified, and I believe the jury‘s verdict means exactly what it found.” Record on Appeal, vol. 6, at 6 (transcript of sentencing proceeding).20 In addition, the court found that “[i]f the jury had been convinced that [Laury]
The district court also found that Laury obstructed justice by lying to the probation officer preparing the presentence report about a prior arrest and conviction. A defendant‘s offense level may be enhanced where the defendant “furnish[es] material falsehoods to a probation officer in the course of a presentence report or other investigation for the court.”
F
Laury next claims that the district court erred in upwardly departing from the sentencing guidelines. The district court sentenced Laury to 175 months imprisonment, 25 months above the sentencing guidelines maximum.22 A departure from the sentencing guidelines will be upheld if (1) the district court provided acceptable reasons for the departure, and (2) the extent of the departure was reasonable. United States v. Fields, 923 F.2d 358, 361 (5th Cir.), cert. denied, ___ U.S. ___, 111 S. Ct. 2066, 114 L. Ed. 2d 470 (1991).
That a defendant‘s criminal history category does not adequately reflect the seriousness of a defendant‘s past criminal conduct “is a factor not taken into account by the Guidelines and is a permissible justification for upward departure.” United States v. Geiger, 891 F.2d 512, 514 (5th Cir. 1989) (emphasis added) (upholding upward departure where defendant‘s criminal
Given Laury‘s past criminal convictions, the district court did not clearly err in finding that Laury‘s criminal history category did not adequately reflect the seriousness of his criminal history. Furthermore, because Laury‘s criminal history points (20) were well above the minimum required (13) to place him in a category of VI, and the district court gave adequate reasons for its upward departure, the district court did not abuse its discretion in upwardly departing from the sentencing guidelines.
Laury‘s challenge to the extent of the district court‘s departure is equally unavailing. Because the departure was within the statutory limit, see
G
Laury contends that the district court erred in denying his motion to suppress the evidence obtained from the search of his apartment. Laury contends that the affidavit in support of the search warrant did not establish probable cause because: (a) the affidavit was based on conclusory statements and unreliable hearsay; (b) the affidavit did not establish a nexus between Laury‘s home and the instrumentalities and evidence of the robbery; and (c) the information provided by affiant Agent Garcia and the CI was stale. We disagree.
The Supreme Court in Leon held that evidence obtained by officers in objectively reasonable good-faith reliance upon a search warrant is admissible, even though the warrant was unsupported by probable cause. See Leon, 468 U.S. at 922-23, 104 S. Ct. at 3420; Satterwhite, 980 F.2d at 320. Where a warrant is supported by more than a bare bones affidavit,23 an officer may rely in good faith on the warrant‘s validity. Id.; Pigrum, 922 F.2d at 252. We review de novo the reasonableness of an officer‘s reliance
Laury first claims that the warrant was not supported by probable cause because it was based solely upon a bare bones affidavit. We disagree. The affidavit shows that eyewitnesses to the robbery provided a description of the robber which was similar to Laury‘s.24 See Record on Appeal, vol. 1, at 157-58. The affidavit also states:
A confidential source who has provided reliable information in the past to local law enforcement officers and whose information has culminated in three arrests and three convictions furnished the following information to which he had access:
- A personal friend of Felmon Lakeith Laury stated that Laury robbed a bank in Rosebud, Texas during December, 1988.
- Felmon Lakeith Laury is unemployed and has been for some time. However, in late December, 1988, Laury purchased a 1982, two-door, white Lincoln Continental with a tan “convertible look” vinyl top. He also purchased a yellow Chevrolet Z.28 Camaro for his girlfriend. Around Christmas, 1988, Laury went to Houston with another black male and purchased expensive clothes, and had a $1,500 stereo installed in his car.
Laury also gave some of his friends $100 each as a Christmas gift. - Felmon Lakeith Laury is currently using an alias of Walter Ray Nicholson.
- Felmon Lakeith Laury was raised in the Calvert, Texas area near Rosebud, Texas and frequently travels to that area.
- Felmon Lakeith Laury currently lives with his girlfriend DeShannon “Dinky” Cooper at the Estell Village Apartments, 5938 Highland Village Drive, Apartment #D, Dallas, Texas. Laury has lived there since December, 1988.
Id. at 157. The CI‘s statements provided the magistrate with ample facts, not conclusions, for finding that there was a fair probability that Laury robbed a bank.
Laury further alleges the government is attempting to put flesh on an otherwise bare bones affidavit by the use of unreliable hearsay. Laury avers that Agent Garcia and the CI had no personal knowledge of the robbery, and that the CI did not reveal the underlying facts and circumstances of how he obtained the information.
An affidavit may rely on hearsay))information not within the personal knowledge of the affiant, such as an informant‘s statement))as long as the affidavit presents a “`substantial basis for crediting the hearsay.‘” Gates, 462 U.S. at 242, 103 S. Ct. at 2334 (quoting Jones v. United States, 362 U.S. 257, 269, 80 S. Ct. 725, 735, 4 L. Ed. 2d 697 (1960)); see also Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); Satterwhite, 980 F.2d at 321. In determining whether an informant‘s report is credible, we examine the informant‘s veracity
The affidavit adequately demonstrated the CI‘s veracity. The veracity of an informant is often assessed from the accuracy of previous tips. See United States v. Barbin, 743 F.2d 256, 259 (1984). Agent Garcia stated that the CI in the past had furnished reliable information to local law enforcement officers leading to three arrests and three convictions. These statements sufficiently established the CI‘s veracity. See United States v. McKnight, 953 F.2d 898, 905 (5th Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 2975, 119 L. Ed. 2d 594 (1992) (assertion that informant in the past had given true and reliable information sufficiently established veracity); Barbin, 743 F.2d at 256 (veracity was established where informant in the past had given information resulting in several arrests and convictions); United States v. Almas, 507 F.2d 65, 66 n.1 (5th Cir. 1975) (veracity established where informant had provided information leading to four arrests and four convictions).
The affidavit also sufficiently demonstrated the CI‘s basis of knowledge. “An informant‘s basis of knowledge can . . . be established by a particularly detailed tip.” United States v. Jackson, 818 F.2d 345, 349 (5th Cir. 1987). The CI knew where Laury lived, the name of Laury‘s girlfriend, Laury‘s use of an alias, and where Laury was raised. Furthermore, the CI knew with specificity expenditures that Laury made in December 1988. In addition, the affidavit stated that an FBI agent had verified the residence of Laury‘s girlfriend. While the source of the CI‘s information was not disclosed, nor how the information was obtained, the detailed facts given were of such a nature, in light of the surrounding circumstances, that the magistrate could have reasonably concluded that the CI obtained the information in a reliable manner. Therefore, the CI‘s tip, given his past accuracy and the detailed information he furnished, provided the magistrate with a substantial basis for crediting the CI‘s statements.
Laury also claims that the affidavit was based on unreliable double hearsay because some of the CI‘s statements were based on information given to the CI by an unidentified personal friend. See Record on Appeal, vol. 1, at 157. Laury argues that the affidavit failed to establish the personal friend‘s veracity and basis of knowledge. Although it is true that the affidavit did not establish the personal friend‘s veracity, we are not precluded from determining that a substantial basis existed for crediting the personal friend‘s statement. See Gates, 462 U.S. at 232, 103 S. Ct. at 2329 (“A deficiency in [either veracity or basis of knowledge] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.“); see also Satterwhite, 980 F.2d at 322 (“Where an informant‘s report is not based on personal knowledge, but rather on the information of a second individual, we must determine whether a substantial basis exists for crediting the second individual‘s information.” (citing Spinelli v. United States, 393 U.S. 410, 410, 89 S. Ct. 584, 593 (1969) (White, J., concurring)).
First, the personal friend did more than merely state that Laury had robbed a bank. The personal friend correctly identified Rosebud as the place of the robbery and December 1988 as the month and year the robbery took place. This is even more significant because both the CI and Laury lived in Dallas: it is unlikely that the CI would know about, and implicate Laury in, a bank robbery in the distant town of Rosebud. Second, the personal friend‘s statements were corroborated by the CI‘s statements. “`It is enough . . . that [c]orroboration through other sources of information reduced the chances of a reckless or prevaricating tale,’ thus providing a `substantial basis for crediting the hearsay.‘” Id. at 322-23 (quoting Gates, 462 U.S. at 244-45, 103 S. Ct. at 2335). The CI stated that Laury was raised near Rosebud and frequently traveled to that area. The CI‘s statement corroborates the personal friend‘s claim that Laury robbed a bank by connecting Laury to the area of the bank robbery. Therefore, the affidavit provided the magistrate with a substantial basis for crediting the personal friend‘s statement.
Laury further alleges that the affidavit was totally lacking in indicia of probable cause because it did not establish a nexus between Laury‘s home and the instrumentalities and evidence of the
The instrumentalities and evidence of the crime were not found at the scene of the crime.25 Furthermore, Agent Garcia stated in the affidavit that, based on his training, experience, and participation in the investigation of over 200 bank robberies, “[i]ndividuals who commit bank robberies tend to keep evidence and instrumentalities of their robberies in their personal possession, as well as their homes.” Record on Appeal, vol. 1, at 160. Therefore, the affidavit furnished the magistrate with enough information to conclude that there was a nexus between Laury‘s home and the instrumentalities and evidence of the robbery. See United States v. Pace, 955 F.2d 270, 277 (5th Cir. 1992) (Where agent stated in affidavit that individuals who cultivate marijuana routinely conceal evidence of the crime in their homes, court held:
Laury also contends that the information supporting the search warrant was stale. “[T]he amount of delay which will make information stale depends upon the particular facts of each case, including the nature of the criminal activity and the type of evidence sought.” Freeman, 685 F.2d at 951. “`A mechanical count of days is of little assistance in [the] determination.‘” Id. (quoting United States v. Hyde, 574 F.2d 856, 865 (5th Cir. 1978)). The FBI agent stated in his affidavit that individuals who commit bank robberies tend to keep instrumentalities and evidence of the offense in their homes and that “investigations [that he has] conducted have revealed that often this evidence and instrumentalities of these crimes are kept for long periods of time, up to and including a period of several years.” Record on Appeal, vol. 1, at 160. Also, less than two months elapsed from the date of the robbery to the issuance of the warrant. Therefore, it was reasonable for the magistrate to conclude that the information forming the basis of the warrant was not stale. See
H
Lastly, Laury argues that the district court erred in denying his motion to suppress incriminating statements made after his arrest because he did not voluntarily waive his Miranda rights. After holding a hearing on Laury‘s motion to suppress, the district court held that Laury made a voluntary and intelligent waiver of his rights after receiving Miranda warnings. “`[I]n reviewing a trial court‘s ruling on a motion to suppress based on live testimony at a suppression hearing, the trial court‘s factual findings must be accepted unless clearly erroneous, or influenced by an incorrect view of the law . . . .‘” United States v. Ibarra, 965 F.2d 1354, 1356 (5th Cir. 1992) (en banc) (equally divided court) (quoting United States v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th Cir.), cert. denied, 495 U.S. 923, 110 S. Ct. 1957, 109 L. Ed. 2d 319 (1990)); see also United States v. Cagle, 849 F.2d 924, 924 n.1 (5th Cir. 1988) (citing United States v. Maldonado, 735 F.2d 809, 814 (5th Cir. 1984)). Furthermore, the evidence must be viewed in the light most favorable to the party that prevailed below. Id. (quoting Muniz-Melchor, 894 F.2d at 1433-34; Cagle, 849 F.2d at 924 n.1 (citing Maldonado, 735 F.2d at 814). Defendants may waive their Miranda rights provided that they
IV
For the foregoing reasons, we AFFIRM.
Notes
Laury, who was not present during the execution of the search warrant, called the FBI‘s office upon learning of the search, and denied robbing the bank. Laury‘s uncontradicted testimony on direct examination was as follows:
A: I wanted to know what [the search] was about, and I called the FBI station that same day and I asked them))Well, I identified myself and told them who I was, and they told me they were looking for me for a bank robbery.
Q: Okay.
A: And I told them, “I‘m not a bank robber.” I told them, “I‘m a thief, I don‘t rob banks.”
Q: Okay.
A: I don‘t know how to rob a bank.
Q: Okay.
A: So he stated to me, “Well, if you didn‘t do it, [Laury], you know who did it.” And I told him I don‘t, you know, and I left that there.
Record on Appeal, vol. 5, at 308.
The Court stated:
Silence in the wake of these [Miranda] warnings may be nothing more than the arrestee‘s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person‘s silence to be used to impeach an explanation subsequently offered at trial.
Doyle, 426 U.S. at 617-18, 96 S. Ct. at 2244-45 (citation omitted).
Laury told FBI agents: (1) he was the only man living in his apartment; (2) he lived with his girlfriend, Dinky; (3) he owned the men‘s clothing in the apartment; (3) when and where he purchased the items described in purchase receipts; (4) he purchased the items with money that he obtained from two jobs, Dinky, and Dinky‘s grandmother; (5) he was in Calvert, Texas a few days before Christmas; and (6) he did not rob Planters National Bank.
The arresting officer, Agent Farnsworth, stated on direct examination that Laury did not make any statements concerning his whereabouts on the date of the robbery. See Record on Appeal, vol. 4, at 187-88 (In response to the prosecutor‘s question, “Did [Laury] give you any kind of alibi or any excuse or any place that he was on December the 19th of 1988,” Agent Farnsworth stated, “No sir. He just simply denied that he had robbed that bank.“).
Ethel Curry, Henry Lee Laury, and Annette Curry were Laury‘s alibi witnesses. One alleged instance of prosecutorial misconduct arose out of the prosecutor‘s cross-examination of Ethel Curry:
Q: [W]hen he was arrested and charged with this crime, did you go to the police and tell them that it couldn‘t have been him because he was at a birthday party?
A: No.
Q: When was the first time that you told))went and told the police or the FBI that it couldn‘t have been him because he was at this birthday party?
A: I didn‘t. They came by my house.
Record on Appeal, vol. 4, at 199-200. Laury also claims that the prosector made improper comments during his cross-examination of Henry Lee Laury:
Q: Mr. Laury, when did you go to the police and tell them that [Laury] couldn‘t be guilty of this case, that he had an alibi?
A: I didn‘t never talk to no police.
Q: Well, do you know))how long has he been arrested and charged with this?
A: I don‘t know how long he‘s been arrested and charged, because I wasn‘t here.
See United States v. Johns, 734 F.2d 657, 664-665 (11th Cir. 1984). In Johns, the defendant argued that the prosecutor improperly commented on the failure of his alibi witness to come forward sooner with his alibi. See id. at 663. The court stated: “That anyone, defendant or witness, fails to present a defendant‘s alibi to law enforcement at the earliest time possible has some logical negative reflection on the credibility of the alibi defense.” Id. (emphasis added). In holding that the prosecutor‘s comment did not amount to misconduct the court stated:
The [issue] is whether for some policy reasons we should not allow the prosecutor to present otherwise admissible evidence to the jury. For example, when a defendant does not tell police his alibi, we prohibit such argument for Miranda reasons. See Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). We find no similar policy that would prevent our allowing the prosecutor to attack an alibi witness’ credibility by pointing out that he did not come forward until trial.
Id. at 664-65 (emphasis added).
Dunnigan, 1993 U.S. LEXIS at *16-*17.The court finds that the defendant was untruthful at trial with respect to material matters in this case. The defendant denied her involvement when it is clear from the evidence in the case as the jury found beyond a reasonable doubt that she was involved in the conspiracy alleged in the indictment, and by virtue of her failure to give truthful testimony on material matters that were designed to substantially affect the outcome of the case, the court concludes that the false testimony at trial warrants an upward adjustment by two levels.