USA v. Paul Thomas

Filing

REVISED PUBLISHED OPINION FILED. [6680756-2] [09-40989]

USA v. Paul Thomas ase: 09-40989 C

Document: 00511306466 Page: 1 Date Filed: 11/30/2010

Doc. 0

REVISED NOVEMBER 30, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit

N o . 09-40989

FILED
November 24, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. P A U L EDWARD THOMAS; DERRICK VAN HODGES,

D e fe n d a n t s - Appellants

A p p e a ls from the United States District Court fo r the Eastern District of Texas

B e fo r e CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges. L E S L I E H. SOUTHWICK: H a lf - b r o t h e r s Paul Edward Thomas and Derrick Van Hodges were c o n v ic t e d of numerous counts of conspiracy, bank robbery, and weapons p o s s e s s io n . Both challenge the sufficiency of the evidence, the district court's d e c is io n to try them jointly, and one part of the computation of their sentences. Thomas alone argues that several search warrants were invalid, while Hodges a r g u e s the existence of juror bias and that his sentence constitutes cruel and u n u s u a l punishment. We AFFIRM.

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No. 09-40989 S T A T E M E N T OF FACTS B e t w e e n 2005 and 2007, two men committed a series of armed bank r o b b e r ie s across eastern Texas. The bank robberies were executed in the same g e n e r a l manner. Two men arrived at each bank wearing clothing that covered t h e ir skin, hair, and faces; the robbers brandished weapons and ordered c u s t o m e r s to lie on the floor; the shorter man jumped over the counter and c o lle c t e d money from the cash drawers; the taller man stood guard in the lobby; a n d the pair escaped in a recently-stolen vehicle, which they later abandoned for a n o t h e r vehicle. Each robbery was completed within two minutes. On September 27, 2007, Derrick Van Hodges was arrested in Tyler, Texas o n a state warrant. The basis for the warrant was DNA evidence linking Hodges t o a glove dropped during a bank robbery in Henderson, Texas. When arrested, H o d g e s had in his possession a $10 bait bill taken a week earlier during the r o b b e r y of a bank in Crockett, Texas. Four more bait bills were found during a s u b s e q u e n t search of storage units rented by Paul Edward Thomas and T h o m a s 's mother (who is also Derrick Van Hodges' mother). A sixth bait bill was fo u n d in a child's bedroom at Thomas's residence. T h o m a s and Hodges were named in an 18-count indictment charging them w it h conspiracy, bank robbery, and weapons offenses related to the following b a n k robberies: 1. December 5, 2005 - Kelly Tyler Federal Credit Union, Tyler, Texas; 2. November 3, 2006 - Bank of America, Henderson, Texas; 3. June 22, 2007 - Austin Bank, Troup, Texas; 4. July 6, 2007 - Bank of America, Lufkin, Texas; and 5. September 21, 2007 - Citizen's National Bank, Crockett, Texas. Thomas and Hodges were jointly tried before a jury and convicted on each c o u n t . Thomas received a sentence of 1,392 months and Hodges received a s e n te n c e of 1,435 months. Each filed a timely notice of appeal. 2

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No. 09-40989 D IS C U S S IO N I. Sufficiency of the Evidence T h o m a s and Hodges argue the government presented insufficient evidence id e n tify in g them as the bank robbers. T h o m a s argues that no witness, DNA sample, weapon, or other piece of e v id e n c e put him "at the scene of any of the banks." He contends the

g o v e r n m e n t 's case rests upon a pair of shoes, a .380 cartridge, a hat, and four b a it bills. Thomas claims the evidence against Hodges was much stronger and im p lie s that Thomas was found guilty by association. Hodges presents similar arguments, challenging the lack of eyewitness id e n tific a t io n ; weapons and ammunition "so common as to appear anywhere in t h e country"; and DNA testing that was "weak in some instances." He argues t h a t his repeated DNA matches were "happenstance" because he "was in the b u s in e s s of selling old clothes." He contends the bait bill found in his wallet one w e e k after a bank robbery was also "happenstance." B o t h defendants preserved the challenge to sufficiency by moving for j u d g m e n t of acquittal at the close of the government's case-in-chief and at the e n d of trial. See United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008). W e review the denial of a motion for judgment of acquittal de novo. United S ta te s v. Clayton, 506 F.3d 405, 412 (5th Cir. 2007). "[W]e view the evidence and t h e inferences drawn therefrom in the light most favorable to the verdict, and w e determine whether a rational jury could have found the defendant guilty b e y o n d a reasonable doubt." Id. (citation omitted). Jurors are "free to choose a m o n g reasonable constructions of the evidence" in order to arrive at a verdict. Id. (citation omitted). We apply this standard of review to direct and

c ir c u m s t a n t ia l evidence. Id. "We do not evaluate the weight of the evidence or t h e credibility of the witnesses." United States v. Solis, 299 F.3d 420, 445 (5th C ir . 2002) (citation omitted). 3

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No. 09-40989 A. Evidence as to each offense

W e will discuss later the evidence that demonstrated the robberies were c o n d u c t e d similarly. We begin by summarizing the specific evidence introduced fo r each bank, then subdividing further to show the specific evidence, if any, a g a in s t each defendant. 1. K e lly Federal Credit Union ­ Tyler, Texas

A fte r the robbery of the Kelly Federal Credit Union outside of Tyler, police fo u n d the abandoned getaway vehicle approximately two and a half miles from t h e credit union. Its motor was still running. Inside the vehicle were a pair of t e n n is shoes and one live round of .380 caliber ammunition. On the ground o u ts id e the vehicle was a t-shirt. The vehicle had a damaged steering column in d ic a tin g that it had been operated without its key. Its owner confirmed that it had recently been stolen from a fenced lot four miles from the credit union. a. Evidence as to Thomas

T h o s e who stole the getaway vehicle gained access to the lot in which it w a s stored by cutting a padlock on a gate. The vehicle owner testified that he t h o u g h t the padlock was sturdy and would have to have been cut using "some v e r y large bolt cutters." Several pairs of bolt cutters were found in Thomas's s t o r a g e units. In addition, the .380 cartridge found in the vehicle was made by t h e same manufacturer as .380 cartridges later found in Thomas's storage units. The government presented evidence that the rounds were manufactured in the s a m e batch of 100,000 cartridges. N u c le a r DNA analysis was performed on the tennis shoes found inside the g e t a w a y vehicle. Thomas could not be excluded as a contributor to the DNA on t h e tennis shoes.1 The probability that the DNA came from an African-American o t h e r than Thomas was 1 in 1,274 (left shoe) and 1 in 883 (right shoe).

Most of the items analyzed contained several DNA profiles. When we note that one of the defendants could not be excluded, that means the other defendant was excluded.

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No. 09-40989 b. Evidence as to Hodges

N u c le a r DNA analysis was performed on the t-shirt found outside the g e t a w a y vehicle. Hodges could not be excluded as a contributor. The probability t h a t the DNA on the t-shirt came from an African-American other than Hodges w a s 1 in 966.2 million. 2. B a n k of America ­ Henderson, Texas

B a n k security photos showed that the robbers brandished what appeared t o be an assault rifle with a distinctive banana clip and a small caliber pistol. Upon their exit, the robbers fired two shots into the bank parking lot. The police r e c o v e r e d one empty cartridge casing from the bank parking lot. T h e robbers then drove less than a quarter-mile and abandoned the g e t a w a y vehicle in a grocery store parking lot. The getaway vehicle was found w it h its engine running and a damaged steering column. Police learned it had r e c e n tly been stolen from a church five miles west of Henderson. Inside the g e t a w a y vehicle was a second empty cartridge casing. It matched the empty c a s in g found in the bank parking lot. A n eyewitness testified that on the morning of this robbery, he saw in the g r o c e r y store lot a black man wearing a cap run in front of the getaway vehicle a n d into the woods, then return and get into a white four-door older-model car. The white car was then driven west. A n o t h e r eyewitness, who had heard about a bank robbery in progress over a police scanner, stepped outside of his office to observe traffic. He saw a white fo u r -d o o r sedan run a stop sign and then almost hit another vehicle. A black m a n wearing a light-colored skull cap was driving and had a black passenger. The car was headed west. That eyewitness's office security camera captured an im a g e of the car; a still photo from that camera was introduced into evidence. a. Evidence as to Thomas

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No. 09-40989 S e v e r a l months after this robbery, a gun case containing an assault rifle, a banana clip, a .25 caliber pistol, and ammunition was discovered in the woods a p p r o x im a t e ly 40 miles from Henderson, Texas. The government suggested these could be the same weapons used in the bank robbery because: (1) another w it n e s s testified that the gun case "looked like" and "appeared to be" the gun c a s e stolen from his storage unit in Tyler, Texas, and (2) other items stolen from t h is same witness were later discovered in Thomas's storage units. A firearms e x p e r t from the FBI confirmed that the recovered assault rifle and handgun lo o k e d similar to those used in the bank robbery but could not determine c o n c lu s iv e ly that they were the actual weapons used. T h e driver of the fleeing vehicle wore a light-colored skull cap. The

g o v e r n m e n t introduced a picture of Thomas wearing a white skull cap, and in t r o d u c e d skull caps seized in Thomas's storage units. b. Evidence as to Hodges

P o lic e discovered a cotton glove in the woods by the grocery store parking lo t . Nuclear DNA analysis could not exclude Hodges as a contributor to the DNA o n the glove. The probability that the DNA came from an African-American o t h e r than Hodges was 1 in 228.7 billion. T h e government introduced a photograph of Hodges' wife's vehicle parked in front of Hodges' home. It was allegedly "very similar" to the vehicle fleeing t h e bank robbery as captured by the security camera. The jury was invited to c o m p a r e the photos for a potential connection to Hodges. 3. A u s tin Bank ­ Troup, Texas

T h e robbers fled this bank robbery in a stolen Chevrolet Blazer, which was fo u n d running and displayed damage to the steering column. Police found a b la c k hat inside the Blazer. The evidence as to each defendant is similar. The day after the bank r o b b e r y , a state trooper stopped Hodges for speeding. Hodges was driving a 6

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No. 09-40989 r e n t e d Dodge; his only passenger was Thomas. The trooper noticed both men h a d large rolls of cash on them, and both gave vague explanations about heading t o Houston to see family. After the Dodge was returned to the rental company, la w enforcement removed the tires and compared the treads to prints left in the m u d next to the abandoned Blazer. The treads matched the prints. These were n o t rare tires, however, and there was no proof that those specific tires left the p r in ts . A hair found inside the hat was analyzed using mitochondrial DNA t e s t in g . Thomas could not be excluded as the source. The probability that the h a ir came from an African-American other than Thomas was 1 in 385. An FBI fo r e n s i c examiner testified that 1 in 385 was the most significant match a v a ila b le for the African-American population, given the FBI's database. Thomas and Hodges, though, have the same mother and therefore have id e n tic a l mitochondrial DNA. This evidence thus cannot link a particular

d e fe n d a n t to this getaway vehicle. The jury was fully informed of Thomas and H o d g e s ' relationship and this feature of mitochondrial DNA. Thomas argued t h a t he could not have provided the hair in question because he is bald; t h e r e fo r e , he alleged, this evidence properly implicated only Hodges. S e p a r a te ly , in its discussion of this robbery during closing arguments, the g o v e r n m e n t reminded the jury that Hodges is missing a finger on his left hand, t h e n exhorted the jury to "[l]ook at these photographs and compare for yourself." 4. B a n k of America ­ Lufkin, Texas

I n this robbery, there was evidence that at least three vehicles were b r o k e n into and had their steering columns damaged. At a used car lot four to fiv e miles from the bank, someone cut the chain to the lot, broke into a car, but d id not take the vehicle. At the same lot, a pickup truck was broken into and s t o le n . The pickup truck was used to travel to and from the bank. It was then

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No. 09-40989 a b a n d o n e d , and a van was used by the fleeing robbers. The van had been stolen fr o m a church parking lot approximately three miles from the bank. a. Evidence as to Thomas

N o DNA or physical evidence linked Thomas to this bank robbery. During c lo s in g arguments, the government highlighted that this robbery required the c a r thief or thieves to cut the chain into the car lot, implying a need for bolt c u tt e r s . Several pairs of bolt cutters were found in Thomas's storage units. b. Evidence as to Hodges

P o lic e found a cloth head-covering, commonly called a do-rag, inside the a b a n d o n e d van. Hodges could not be excluded as a contributor to the DNA on t h e do-rag. The probability that the DNA came from an African-American other t h a n Hodges was 1 in 6.579 sextillion (21 zeros after the integer). 5. C itiz e n s National Bank ­ Crockett, Texas

I n preparation for this robbery, the bank robbers stole their getaway v e h ic le from a car lot approximately 30 to 35 miles south of Crockett. As with t h e previous robbery, they accessed the car lot by cutting the chain link and then b r o k e into multiple vehicles in an attempt to find an operable vehicle. The g e t a w a y vehicle was found approximately a half-mile from the bank, with d a m a g e to the steering column. a. Evidence as to Thomas

T h e bank had mixed a number of $10 bait bills into the money taken d u r in g this robbery. Four of these bait bills were discovered during the search o f Thomas's storage units. A fifth bait bill was found in a child's room during a s e a r c h of Thomas's house. b. Evidence as to Hodges

H o d g e s had one of the bait bills in his wallet when he was arrested a p p r o x im a t e ly one week after this robbery. B. Analysis of the evidence 8

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No. 09-40989 T h e strength of the evidence against each defendant varies from offense t o offense. The DNA evidence and bait bills constitute sufficient evidence

a g a in s t Thomas to sustain convictions relating to the first and fifth bank r o b b e r ie s , and sufficient evidence against Hodges to sustain convictions relating t o the first, second, fourth, and fifth bank robberies. We also find sufficient e v id e n c e to sustain Thomas and Hodges' convictions for conspiracy. T h o m a s 's complaints about the nuclear DNA evidence are unpersuasive. The fact that the probabilities implicating Thomas are less overwhelming than t h o s e implicating Hodges ­ e.g., one out of several hundred or one thousand, r a t h e r than one in one sextillion ­ does not mean they are statistically in s ig n ific a n t or somehow unreliable. Thomas has not presented any evidence t h a t the DNA results are not statistically significant. W e now consider whether the government presented sufficient evidence t o sustain Thomas's convictions relating to the second, third, and fourth r o b b e r ie s , and Hodges' convictions relating to the third robbery. Without overwhelming direct evidence on these counts, the jury must have con sid ered the circumstantial evidence against Thomas and Hodges, then drawn a n inference that they were the bank robbers in each robbery. "Inferences and p r e s u m p t io n s are a staple of our adversary system of factfinding. It is often n e c e s s a r y for the trier of fact to determine the existence of an element of the c r im e ­ that is, an `ultimate' or `elemental' fact ­ from the existence of one or m o r e `evidentiary' or `basic' facts." County Court of Ulster Cnty., N.Y., v. Allen, 4 4 2 U.S. 140, 156 (1979). In this case, the element requiring inferences to be d r a w n is identification. O n appeal, "[a]ll reasonable inferences from the evidence must be c o n s t r u e d in favor of the jury verdict." United States v. Martinez, 975 F.2d 159, 1 6 1 (5th Cir. 1992) (citation omitted). "Circumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially 9

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No. 09-40989 w h e n corroborated by moral coincidences, be sufficient to constitute conclusive p r o o f." Id. (internal quotation marks and citation omitted). Inferences can also be drawn from pattern evidence. Where "the

g o v e r n m e n t presents circumstantial evidence of an ongoing pattern of similar t r a n s a c t io n s , the jury may reasonably infer from the pattern itself that evidence o t h e r w is e susceptible of innocent interpretation is plausibly explained only as p a r t of the pattern." United States v. Kington, 875 F.2d 1091, 1100 (5th Cir. 1 9 8 9 ). In light of "the pattern of dealing suggested by the government's

e v id e n c e ," a jury may reasonably conclude that "the only plausible explanation o f the evidence was the government's theory." Id. at 1106. I n the present case, the government presented a substantial amount of e v id e n c e that the bank robberies were executed in the same manner: a getaway v e h ic le was stolen in a particular way; there were always two robbers; clothing c o v e r e d the robbers' exposed skin; weapons were brandished; the shorter man ju m p e d the teller counter; the robbers were in and out within two minutes; and t h e still-running getaway vehicle was soon abandoned for another vehicle. F o r each robbery, the government introduced into evidence security photos a n d videos, which in banks are sometimes a collection of still photos. The photo a n d video evidence allowed the jury to consider whether the bank robbers looked a n d acted similarly in each robbery. This evidence also enabled the jury to d e t e r m i n e whether the execution of each bank robbery was so identical as to p e r m it an inference that the bank robbers in each were the same. This evidence m a y have permitted the jury to identify a bank robber who was missing a finger. T h e government introduced other evidence implicating Thomas. Included w e r e items seized from Thomas's storage units, such as bank bags, clothing s im ila r to that worn by the bank robbers, a police scanner, a newspaper clipping a b o u t the bank robberies, large bolt cutters, and other tools useful for stealing g e t a w a y vehicles. The government also called the property manager of Thomas's 10

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No. 09-40989 s t o r a g e units to testify. She said Thomas's monthly rent payments were

u n u s u a l: he always paid with $100 bills. A fte r the close of evidence, the jury was instructed on drawing inferences fr o m the evidence. The instruction is not challenged. [W ]h ile you should consider only the evidence, you are p e r m it t e d to draw such reasonable inferences from the testimony a n d exhibits as you feel are justified in the light of common e x p e r ie n c e . In other words, you may make deductions and reach c o n c lu s io n s that reason and common sense lead you to draw from t h e facts which have been established by the evidence. In considering the evidence you may make deductions and r e a c h conclusions which reason and common sense lead you to m a k e , and you should not be concerned about whether the evidence is direct or circumstantial. D ir e c t evidence is the testimony of one who asserts actual k n o w le d g e of a fact, such as an eye witness. Circumstantial e v id e n c e is proof of a chain of events and circumstances indicating t h a t something is or is not a fact. The law makes no distinction between the weight you may g iv e to either direct or circumstantial evidence. T h e jury was also instructed to consider separately the evidence for each c o u n t and each defendant: A separate crime is charged against both Defendants in each c o u n t of the superseding indictment. Each count and the evidence p e r t a in in g to it should be considered separately. The case of each D e fe n d a n t should be considered separately and individually. The fact you may find one or more of the accused guilty or not g u ilt y of any crimes charged should not control your verdict as to a n y other crime or any other Defendant. Now, you must give s e p a r a t e consideration to the evidence as to each Defendant. T h e s e instructions informed jurors that they could not, for example, p u n is h Thomas for a robbery for which the government presented inadequate 11

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No. 09-40989 e v id e n c e . We presume that the jury followed these instructions. See United S ta te s v. Tomblin, 46 F.3d 1369, 1390 (5th Cir. 1995). While separate consideration of any one piece of circumstantial evidence ­ such as bolt cutters found in one of Thomas's storage units ­ would not be in c r im in a t in g alone, the circumstantial evidence must be viewed in light of the p a t t e r n evidence. Jurors "may reasonably infer from the pattern itself that e v id e n c e otherwise susceptible of innocent interpretation is plausibly explained o n ly as part of the pattern." Kington, 875 F.2d at 1100. In the present case, a r e a s o n a b le inference from the evidence is that Thomas and Hodges committed a ll five bank robberies. T h e government's evidence is weakest as to Thomas's convictions relating t o the fourth bank robbery. His co-conspirator, Hodges, is tied to that robbery b y DNA evidence, and the probability that the DNA sample from that robbery c a m e from an African-American other than Hodges was 1 in 6.579 sextillion. The jury could reasonably infer that Hodges had the same partner in the first, s e c o n d , third, and fifth bank robberies, and that he did not acquire a new p a r tn e r for the fourth robbery who behaved identically to Thomas. V ie w in g all the evidence in the light most favorable to the verdict, we c o n c lu d e that "a rational jury could have found the defendant[s] guilty beyond a reasonable doubt." Clayton, 506 F.3d at 412. II. District Court's Denial of a Severance Before trial, Thomas filed a motion for relief from prejudicial joinder and H o d g e s filed a motion for severance. Neither claimed they had been improperly jo in e d but rather that they would be unduly prejudiced if tried together. Their m o t io n s were denied. Hodges re-urged his motion after Thomas's closing

a r g u m e n t , seeking a mistrial. It was denied. T h o m a s now argues the jury could not distinguish the defendants because s e v e r a l witnesses referred to Derrick Hodges as "Derrick Thomas" and one 12

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No. 09-40989 o ffic e r initially identified Hodges in the courtroom by pointing to Thomas, before c o r r e c t in g himself. Thomas contends the evidence against him was so weak that t h e blurring of his identity with Hodges' resulted in Thomas being found guilty b y association. Thomas claims he would not have been convicted in a separate t r ia l where there would not have been confusion or evidence spillover. Hodges complains that Thomas's attorney attempted to save his client by h ig h lig h t in g in closing argument that strong DNA evidence linked Hodges, not T h o m a s , to the robberies. Hodges claims that pointing out another defendant's c u lp a b ilit y was a mutually antagonistic defense and wrongfully permitted T h o m a s 's attorney to become a second prosecutor. Like Thomas, Hodges also a r g u e s that confusion in identifying the defendants requires reversal. It is the rule, not the exception, "that persons indicted together should be t r ie d together, especially in conspiracy cases." United States v. Pofahl, 990 F.2d 1 4 5 6 , 1483 (5th Cir. 1993). Still, if a joint trial would prejudice a defendant, d is t r ic t courts may sever the defendants' trials. Fed. R. Crim. P. 14(a). The denial of motions for a severance and a mistrial are reviewed for an a b u s e of discretion. United States v. Mitchell, 484 F.3d 762, 775 (5th Cir. 2007). "[J]oint defendants face a heavy burden in demonstrating to a district court that a n t a g o n is tic defenses warrant granting a severance motion. The burden is c o r r e s p o n d in g ly heavier when, on appeal, they seek to demonstrate that the d is t r ic t court abused its discretion by declining to do so." United States v. D a n ie ls , 281 F.3d 168, 177 (5th Cir. 2002). T o demonstrate an abuse of discretion, "the defendant bears the burden o f showing specific and compelling prejudice that resulted in an unfair trial, and s u c h prejudice must be of a type against which the trial court was unable to a ffo r d protection." Mitchell, 484 F.3d at 775 (internal quotation marks and c it a t io n omitted). A defendant is entitled to a reversal on this issue only if he id e n tifie s specific events during trial and demonstrates that these events caused 13

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No. 09-40989 h im substantial prejudice. United States v. Lewis, 476 F.3d 369, 384 (5th Cir. 2 0 0 7 ). Even when there is some risk of prejudice, limiting instructions will g e n e r a lly prevent actual harm to a defendant: E v e n if there were some risk of prejudice here, the district c o u r t gave the very limiting instructions that the Supreme Court h a s approved as usually sufficient to cure this character of p r e ju d ic e : (1) that the jury must consider the evidence separately a n d independently for each defendant and each charge; (2) that the g o v e r n m e n t 's burden was to prove each defendant's guilt beyond a r e a s o n a b le doubt; (3) that no inferences must be drawn from a d e fe n d a n t 's exercise of the right to silence; and (4) that statements b y the lawyers, including opening and closing arguments, are not e v id e n c e . D a n ie ls , 281 F.3d at 178. These limiting instructions were given in this case. W e conclude there was no abuse of discretion in the denial of these m o t io n s . The identification confusion argued by Thomas and Hodges did not a m o u n t to substantial prejudice or result in an unfair trial. Mostly, the few in s t a n c e s of confusion consist of Hodges' being referred to occasionally as " D e r r ic k Thomas." This is in part explained by the fact that Hodges was also k n o w n as "Derrick Thomas." This fact was explained to the jury. Any remaining e r r o r s of identification were clarified contemporaneously. T h o m a s argues that the evidence against him was weaker than the e v id e n c e against Hodges, but "the jury might have attributed greater knowledge t o him of his brother's actions than in fact was the case, simply because they w e r e brothers." United States v. Partin, 552 F.2d 621, 641 (5th Cir. 1977). This a r g u m e n t is implicitly premised on a codefendant's right to maximize his o p p o r t u n it y for acquittal. There is no such right, though. "A defendant cannot c la im prejudice from failure to sever merely because his likelihood of acquittal is not as great in a joint trial as in a separate trial." Id. (internal quotation m a r k s and citation omitted). 14

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No. 09-40989 H o d g e s also argues that a mistrial should have been declared as a result o f statements Thomas's attorney made in closing argument. Thomas's attorney s o u g h t to convince jurors of the weakness of the evidence against his client by h ig h lig h t in g the more substantial evidence against Hodges: N o w , the other thing that's significant about this, what type of hair w a s it that was tested that [the government] claimed came back to P a u l Thomas? . . . A head hair. Paul Thomas is bald as a cue ball a n d he always has been. Now, you tell me of the two identical DNA m a t c h e s , whose hair fragment was on here? Derrick Hodges. The -t h a t 's what the DNA evidence shows. H o d g e s did not immediately object. He moved for a mistrial at the end of T h o m a s 's closing argument, complaining that Thomas's counsel had several t im e s "pointed at our client on every item of DNA evidence." A defendant who fails to object immediately to part of a counsel's a r g u m e n t and instead waits until the argument has concluded fails to preserve t h e issue for appeal. United States v. Soto, 591 F.2d 1091, 1101 (5th Cir. 1979). We conclude that Hodges' delay in making this objection makes our review only fo r plain error. Id. T h is argument of Thomas's counsel lent credence to the government's DNA e v id e n c e against Hodges. On the other hand, argument of counsel is not

e v id e n c e and is not to be considered as such by the jury. United States v. Mota, 5 9 8 F.2d 995, 1000 (5th Cir. 1979). In the present case, the judge instructed the ju r y "that any statements, objections or arguments made by the lawyers are not e v id e n c e ." Such instructions generally cure any prejudice from counsel's

s t a t e m e n t s . See, e.g., Soto, 591 F.2d at 1101. T h e r e are other reasons that convince us there was no plain error. First, t h e joint trial complied with the principle "that persons indicted together should b e tried together, especially in conspiracy cases." Pofahl, 990 F.2d at 1483. Second, "Rule 14 leaves the determination of risk of prejudice and any remedy

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No. 09-40989 t h a t may be necessary to the sound discretion of the district courts." Zafiro v. U n ite d States, 506 U.S. 534, 541 (1993). Third, the trial court was entitled to c o n s id e r not only the prejudice to Hodges, but also "the government's interest in ju d ic ia l economy and . . . the ways in which it can lessen the prejudice by other m e a n s ." United States v. Crawford, 581 F.2d 489, 491 (5th Cir. 1978). Fourth, t h e trial court gave multiple appropriate limiting instructions to the jury that c u r e d any prejudice. See United States v. Matthews, 178 F.3d 295, 299 (5th Cir. 1 9 9 9 ). Fifth, even if Hodges were correct that Thomas presented a mutually a n t a g o n is tic defense, such defenses are not per se prejudicial. Zafiro, 506 U.S. a t 538. For these reasons, the district court did not abuse its discretion in denying s e v e r a n c e and a mistrial. III. Challenge to Deal v. United States B o t h defendants argue that their second or subsequent weapons c o n v ic t io n s under 18 U.S.C. § 924(c)(1)(C)(i) should not have been stacked to c r e a t e sentences totaling over 100 years each. Thomas states that second or s u b s e q u e n t weapons convictions "should not be applied to multiple findings of g u i l t under a single indictment charging an ongoing series of offenses." They a c k n o w le d g e the Supreme Court has rejected their argument. Deal v. United S ta te s , 508 U.S. 129 (1993). We therefore reject it as well. H o d g e s objected at sentencing and preserved his claim on appeal in order t o seek reversal of Deal in the Supreme Court. Thomas's preservation of the is s u e is less clear. At sentencing, Thomas's counsel stated, "Your Honor, given t h e state of the current existing law with regard to stacked sentences, we have n o objection to that calculation." We do not decide whether his challenge to Deal is properly preserved and simply note counsel's statement. IV . Thomas ­ Denial of a Franks Hearing

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No. 09-40989 T h o m a s argues the district court should have held an evidentiary hearing t o investigate errors in the government's affidavits underpinning several search w a r r a n ts . See Franks v. Delaware, 438 U.S. 154 (1978). Thomas moved to s u p p r e s s the evidence obtained from these warrants. Hodges also moved to s u p p r e s s but did not appeal on the issue. A t trial, the government did not specifically contest each alleged in a c c u r a c y but instead argued that Thomas and Hodges had not met their b u r d e n to require an evidentiary hearing or suppression of the evidence. On a p p e a l, the government acknowledges one error in an affidavit and argues that t h e remaining statements challenged by Thomas are peripheral, speculative, or n o t erroneous. T h e district court denied Thomas's motion without an evidentiary hearing, fin d in g that Thomas had "not provided any evidence" that the government's s t a t e m e n t s were deliberately false or made with reckless disregard for the truth. The court added that even if Thomas had made such a showing, the redacted a ffid a v it s would have established probable cause. See United States v. Sibley, 4 4 8 F.3d 754, 757-59 (5th Cir. 2006). W e review for clear error the district court's finding that an affiant's s t a t e m e n t s were not deliberately false or not made with reckless disregard for t h e truth. United States v. Looney, 532 F.3d 392, 395 (5th Cir. 2008). We review d e novo the district court's conclusions of law, which include the decision to deny a n evidentiary hearing under Franks. Sibley, 448 F.3d at 757; United States v. B r o w n , 298 F.3d 392, 396 (5th Cir. 2002). T o succeed, Thomas needed to make a "substantial preliminary showing" t h a t the affiants' statements were deliberately false or made with reckless d is r e g a r d for the truth. Sibley, 448 F.3d at 758. The district court did not c le a r ly err in finding that Thomas did not make the required showing.

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No. 09-40989 O u r analysis of this issue could end here. In a previous decision, though, w e wrote that where the district court continues its analysis to consider whether a search warrant would establish probable cause once the false information was r e d a c t e d , we "would be prudent" to review this conclusion. United States v. C a v a z o s , 288 F.3d 706, 710 (5th Cir. 2002). "A probable cause determination is a practical, common-sense decision as t o whether, given all the circumstances set forth in the affidavit, there is a fair p r o b a b ilit y that contraband or evidence of a crime will be found in a particular p la c e ." Id. at 710 (internal quotation marks and citation omitted). We evaluate p r o b a b le cause by the totality of the circumstances. United States v. Cherry, 50 F .3 d 338, 341 (5th Cir. 1995) (citation omitted). H e r e , after the challenged information is excised, the affidavits reveal p h y s ic a l evidence connecting Hodges to at least two of the robberies; Thomas a n d Hodges matched the general descriptions of the bank robbers; and police had lo n g suspected their involvement in the robberies based on several suspicious e n c o u n t e r s with the half-brothers. We agree with the district court that even a ft e r redacting the challenged information, the affidavits established probable cau se. V. H o d g e s ­ Cruel and Unusual Punishment H o d g e s argues that his 1,435-month sentence constitutes cruel and u n u s u a l punishment in violation of the Eighth Amendment. Specifically, he a c k n o w le d g e s that his 151-month sentence for conspiracy and bank robbery c o n v ic t io n s was "fair," but takes issue with his 1,284-month sentence for the w e a p o n s convictions. Hodges claims that this "life sentence without the

p o s s ib ilit y of parole or early release" is unduly harsh and disproportionate to r e c e n t bank robbery cases in this circuit. p h y s ic a lly harmed in the bank robberies. He points out that no one was

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No. 09-40989 T h e Eighth Amendment "has been read to preclude a sentence that is g r e a t ly disproportionate to the offense, because such sentences are `cruel and u n u s u a l.'" McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir. 1992) (citation o m it t e d ). On review, however, this court does not "substitute its judgment for t h a t of the legislature nor of the sentencing court as to the appropriateness of a p a r tic u la r sentence; it should decide only if the sentence is within the c o n s t it u t io n a l limitations." United States v. Harris, 566 F.3d 422, 436 (5th Cir. 2 0 0 9 ) (internal quotation marks and citation omitted). Thus, "our review of E ig h t h Amendment challenges is narrow," and "successful Eighth Amendment c h a lle n g e s to prison-term lengths will be rare." Id. (internal quotation marks, b r a c k e t s , and citation omitted). W h e n assessing whether a sentence is unconstitutionally disproportionate, t h is court first makes a threshold comparison of the gravity of the offense a g a in s t the severity of the sentence. McGruder, 954 F.2d at 316. Only if we d e t e r m in e that the sentence is "grossly disproportionate to the offense" will we c o m p a r e Hodges' sentence to sentences for similar crimes in this and other ju r is d ic t io n s .2 Id. H o d g e s ' sentence was not grossly disproportionate to the offenses he c o m m it t e d . The jury found that he robbed a bank with a weapon, then robbed fo u r more banks, again with a weapon. Each robbery was a "crime of violence." 1 8 U.S.C. § 924(c). The 1,284-month portion of the sentence he challenges is b a s e d on the five convictions for use of a firearm during a crime of violence. See id . The sentences assessed for these five convictions were all mandatory

The test in McGruder is based on this court's interpretation of Harmelin v. Michigan, 501 U.S. 957 (1991). Hodges alleges in his reply brief that the McGruder court misinterpreted the seven opinions in Harmelin, and supports this by citing to a Wikipedia entry for Harmelin. The McGruder court, however, explicitly stated it was following Justice Kennedy's opinion in Harmelin when it devised the test for assessing disproportionality claims. Hodges' argument is meritless.

2

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No. 09-40989 m in im u m s ; the last four were 25-year mandatory minimums assigned to repeat w e a p o n s offenders. Id. T h e 1,284-month portion of the sentence was the result of a Congressional d e c is io n to establish mandatory minimum sentences for certain weapons o ffe n s e s . See id. As the Supreme Court has written in a three-strikes case, the d e f e n d a n t 's "sentence is a long one. But it reflects a rational legislative

ju d g m e n t , entitled to deference, that offenders who have committed serious or v io le n t felonies and who continue to commit felonies must be incapacitated." Ewing v. California, 538 U.S. 11, 30 (2003). For these reasons, Hodges' sentence does not constitute cruel and unusual p u n is h m e n t in violation of the Eighth Amendment. V I. Hodges ­ Juror Bias H o d g e s argues that juror misconduct and bias warrant a new trial or an e v id e n t ia r y hearing on the juror's impartiality. He claims a juror knew him b e fo r e trial, did not disclose the relationship during voir dire, and made biased s t a t e m e n t s during trial to Hodges' sister-in-law. Hodges did not raise this issue w it h the district court until shortly after the jury issued its verdict. A party seeking a new trial for juror misconduct must "first demonstrate t h a t a juror failed to answer honestly a material question on voir dire, and then fu r t h e r show that a correct response would have provided a valid basis for a c h a lle n g e for cause." United States v. Ortiz, 942 F.2d 903, 909 (5th Cir. 1991) (in t e r n a l quotation marks and citation omitted). "The motives for concealing in fo r m a t io n may vary, but only those reasons that affect a juror's impartiality c a n truly be said to affect the fairness of a trial." Id. (internal quotation marks a n d citation omitted). As a result, there must be proof of juror bias. United S ta te s v. Scott, 854 F.2d 697, 698-99 (5th Cir. 1988). A defendant may show either actual or implied juror bias. "Actual bias e x is t s when a juror fails to answer a material question accurately because he is 20

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No. 09-40989 b ia s e d ." United States v. Bishop, 264 F.3d 535, 554 (5th Cir. 2001) (citation o m it t e d ). This is shown through admission or factual proof. Id. Juror bias may a ls o be implied in "extreme circumstances," as in "when the juror is employed by t h e prosecuting agency, is a close relative of a participant in the trial, or is s o m e h o w involved in the transaction that is the subject of the trial." Id. W e review the district court's decision to deny a motion for new trial on the b a s is of juror bias for an abuse of discretion. Id. H e r e , the juror did not disclose any relationship with Hodges during voir d ir e . There is no evidence, though, that this was a misrepresentation. Hodges d id not offer evidence that the juror even knew him. Therefore Hodges has not s h o w n actual bias. As for implied bias, the district court found that Hodges' c la im "does not even come close to one of these extreme circumstances" that w o u ld warrant such a finding. Hodges even acknowledges that "the signs

s u g g e s t that [the juror] was favorably disposed to Hodges and felt that he could b e amply fair." The district court did not abuse its discretion in denying Hodges' motion fo r an evidentiary hearing or new trial. T h e defendants' convictions and sentences are AFFIRMED.

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