USA v. Torenda Whitmore, et al

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USA v. Torenda Whitmore, et al

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 15, 2010 N o . 09-60400 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. T O R E N D A WHITMORE, also known as Torenda Brooks, also known as Tory; E D D I E JAMES PUGH, IV, also known as Stretch; BARRON LECOUR B O R D E N , also known as Bam, D e fe n d a n t s - Appellants

A p p e a ls from the United States District Court for the Southern District of Mississippi N o . 1:08-CR-130-3

B e fo r e JONES, Chief Judge, and KING and HAYNES, Circuit Judges. H A Y N E S , Circuit Judge:* A p p e lla n t s Torenda Whitmore, Eddie Pugh, and Barron Borden were c h a r g e d and convicted under a seven count indictment for the kidnapping and m u r d e r of Byron McCoy and the kidnapping and serious injury of Rahaman

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 09-60400 M o g ille s .1 They now appeal, raising numerous challenges to their convictions a n d sentences. We AFFIRM. I. FACTUAL AND PROCEDURAL BACKGROUND V ie w e d in the light most favorable to the verdict, the record establishes t h e following facts. On October 8, 2008, Mogilles and McCoy went to Pugh's New O r le a n s home to purchase marijuana. Pugh shared the home with his mother a n d his girlfriend, Whitmore. Mogilles and McCoy had come by earlier in the d a y , but Pugh turned them away after telling Mogilles that he feared McCoy was a police officer. Upon returning to Pugh's house to again attempt to purchase d r u g s , Mogilles entered with Pugh while McCoy stayed in Mogilles's SUV out fr o n t. Mogilles walked onto the back patio to smoke when he saw Borden arrive c a r r y in g a bag with what appeared to be a baseball bat hanging out of it. Moments later, Mogilles was struck in the head and knocked unconscious. Whitmore later told police she observed Mogilles lying on the patio pleading a ft e r he was assaulted. As Mogilles lay stunned, Pugh motioned for McCoy to c o m e inside. McCoy entered unaware of the assault on Mogilles, and Pugh p u n c h e d him and pulled his pants down to incapacitate him. McCoy was then s u b d u e d by one or more blows to the head. Pugh and Borden bound both McCoy and Mogilles with telephone wire and lo a d e d them into Mogilles's SUV. Mogilles testified that Whitmore saw him as h e was dragged to the car, and she stated in response, "That's f'd up." Mogilles a n d McCoy, both still bound, were placed in the middle seat, with McCoy seated b e h i n d the driver. Borden sat in the rear with a .40 caliber SigArms pistol p o in te d at McCoy's head. Upon leaving, Whitmore followed the SUV in a silver S c io n that was parked in front of the house. Pugh drove the SUV to Mississippi

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The specific charges against each defendant-appellant set forth below.

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No. 09-60400 w h ile Borden kept the pistol pointed at McCoy's head. After crossing the state b o r d e r , Whitmore needed fuel and signaled to the SUV to pull over to stop for g a s . Both cars exited the interstate, Whitmore filled her vehicle, and they both c o n t in u e d to the murder scene. After entering Jackson County, Mississippi, Pugh exited the interstate and t r a v e le d a few miles north to Larue Street. He then pulled the SUV off to the s id e of the road. The Scion stopped behind the SUV. At this time, Borden shot M c C o y in the head. Mogilles broke free from his restraints. After a scuffle, M o g ille s ran into a nearby briar patch. Pugh fired after him, wounding him tw ic e . After escaping, Mogilles observed Whitmore circling the Scion around the b lo c k and "looking around." After avoiding Whitmore, Mogilles flagged down a s c h o o l bus for help. Simultaneously, Elliot Jones, a high school student who was d r iv in g by the area, contacted police to report observing three black males near a n SUV on Larue Road, one of whom was running into the woods while another s h o t at him. Jones also reported seeing a silver Scion behind the SUV. A fte r Mogilles escaped, Pugh and Borden drove the SUV down a dirt road a n d abandoned it. Pugh poured gasoline inside the vehicle and set it on fire with M c C o y 's body still inside, burning himself in the process. He and Borden then fle d through the woods. As they ran, they discarded their phones, keys, and the m u r d e r weapon. They were apprehended under a nearby bridge. W h it m o r e was stopped soon thereafter when Jones returned to the scene a n d alerted police to her vehicle. Jones confirmed it was the vehicle he had seen n e a r the SUV. Jackson County Sheriff's Deputy Tyrone Nelson approached the c a r and questioned Whitmore. According to Nelson, Whitmore stated that she w a s merely lost and kept looking over at the SUV. Based on the reports

r e g a r d in g the Scion, Whitmore was detained for questioning at the police s t a t io n . Once there, Whitmore was interviewed by FBI Special Agent Jerome 3

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No. 09-60400 L o r r a in . Whitmore denied knowing Pugh, Borden, or the victims. Further, she c la im e d she was on her way to Montgomery, Alabama, and had gotten lost. Whitmore later recanted and admitted to having been present at Pugh's house w h e n Mogilles came by to purchase drugs. Further, she admitted seeing

M o g ille s disabled on the back patio pleading and that she knew a confrontation h a d occurred with McCoy. Whitmore then admitted she followed Pugh and B o r d e n to the murder scene. A ll three defendants were charged with conspiracy to kidnap, kidnapping t h a t resulted in the murder of McCoy, and kidnapping that resulted in the injury o f Mogilles. Pugh was charged with being a felon in possession of a firearm and u s in g a firearm during a crime of violence. Borden was also charged with being a felon in possession of a firearm and using a firearm during a crime of violence T h e government presented Mogilles's testimony, Jones's testimony, the p o lic e officers' investigation of the crime scene, Pugh's post-arrest statements, W h it m o r e 's post-arrest statements, the blood found at Pugh's home, Borden's b u r n wounds, and other evidence. Neither Pugh nor Whitmore presented any e v id e n c e . Borden called three witnesses. The jury convicted Pugh and Borden o n all counts. The jury convicted Whitmore on both kidnapping charges on a t h e o r y of aiding and abetting, but acquitted on the conspiracy charge. Whitmore was sentenced to life in prison to be followed by five years of s u p e r v is e d release. Pugh was given a life sentence plus five additional years p lu s three years of supervised release. Borden was also given a life sentence p lu s five additional years plus five years of supervised release. Appellants t im e ly appealed. I I . DISCUSSION A p p e lla n t s appeal their convictions and sentences on a variety of grounds.

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No. 09-60400 A . Denial of Appellants' Motion to Sever A p p e lla n t s claim the district court erred in denying their motion to sever. The court reviews the denial of severance for abuse of discretion. United States v . Mitchell, 484 F.3d 762, 775 (5th Cir. 2007). To demonstrate an abuse of d is c r e t io n in denying the motion for severance, the defendant must show specific a n d compelling prejudice that resulted in an unfair trial, and such prejudice m u s t be of a type against which the trial court was unable to afford protection. Id. Appellants moved to sever based on their inability to challenge Yet, at trial, the

in c r im in a t in g statements made by their co-defendants.

g o v e r n m e n t did not use any of Appellants' words, testimony, or statements a g a in s t the other appellants. Instead, the government only introduced

s t a t e m e n t s by Whitmore that inculpated Whitmore, statements by Pugh that in c u lp a t e d Pugh, and the government did not enter any statements made by B orden . Neither Borden nor Pugh 2 identify any of their respective

c o -d e fe n d a n t s ' statements that incriminate them in the crime.3 Further, the g o v e r n m e n t offered substantial additional evidence of guilt as to each defendant, in c lu d in g Mogilles's and Jones's eyewitness testimony as well as evidence found in Pugh's home and the SUV. Finally, the district court properly included l i m it in g instructions from the Fifth Circuit Pattern Jury Instructions so as to p r e v e n t any undue prejudice. As such, the district court did not abuse its d is c r e t io n when it denied Appellants' motion to sever. B. Denial of Appellants' Motion for Change of Venue A p p e lla n t s next assert that the district court erred in denying their motion fo r a change of venue due to media coverage of the crime. Specifically,

Whitmore offers no argument on this claim of error. Instead, she advances this claim by way of incorporation under Federal Rule of Appellate Procedure 28(i). The allegedly incriminatory information Pugh cites in his briefing was neither directly incriminatory nor exclusively presented through Whitmore's statements.
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No. 09-60400 A p p e lla n t s argue that a single news story carried on the front-page of one Gulf C o a s t newspaper and dissemination of the story via "electronic media" was s u ffic ie n t to warrant change of venue for their federal trial. We review a district c o u r t's denial of a motion for change of venue for abuse of discretion. United S ta te s v. Parker, 877 F.2d 327, 330 (5th Cir. 1989). "[T]he district court must g r a n t a change of venue when it is satisfied that there exists in the district w h e r e the prosecution is pending so great a prejudice against the defendant [ t h a t he] cannot obtain a fair and impartial trial." Id. (second alteration in o r ig in a l) (internal quotation marks and citations omitted). However, "a change o f venue should not be granted on the mere showing of widespread publicity." Id. Appellants' have failed to demonstrate how the limited media coverage cited in Borden's briefing "was in excess of the sensationalism inherent in the crime o r that pervasive community prejudice resulted from the publicity." Id. at 331. Accordingly, the district court did not abuse its discretion in denying the motion fo r change of venue. C. Denial of Appellants' Motions to Suppress A p p e lla n t s claim the district court erroneously denied their individual m o t io n s to suppress each of their post-arrest statements. Pugh also argues the d is t r ic t court erred in denying his additional motion to suppress the evidence g a in e d from the search of his residence and the medical examination of his body c o n d u c t e d after his arrest. In reviewing a suppression ruling, we examine fa c t u a l findings for clear error and legal conclusions de novo. United States v. C a v a z o s , 288 F.3d 706, 709 (5th Cir. 2002). We "view the evidence in the light m o s t favorable to the party that prevailed in the district court, considering the e v id e n c e offered at the suppression hearing as well as the evidence admitted at t r ia l." United States v. Gonzales, 121 F.3d 928, 938 (5th Cir. 1997). The district c o u r t's denial of the motion to suppress is subject to a harmless error analysis. See United States v. Garcia-Ruiz, 546 F.3d 716, 718 (5th Cir. 2008). 6

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No. 09-60400 1 . The Admission of Appellants' Post-Arrest Statements a . Whitmore's Statements W h it m o r e challenges the trial court's refusal to suppress her post-arrest s t a t e m e n t s , arguing the police lacked probable cause to arrest her when she was d e t a in e d near the scene of the murder. "Probable cause exists when the totality o f facts and circumstances within a police officer's knowledge at the moment of a r r e s t are sufficient for a reasonable person to conclude that the suspect had c o m m it t e d or was committing an offense." United States v. Nunez-Sanchez, 4 7 8 F.3d 663, 666 (5th Cir. 2007) (internal quotation marks omitted). The a r r e s t in g officers had sufficient information under the totality of the c ir c u m s t a n c e s to create probable cause for her arrest. Police had numerous r e p o r t s that a silver Scion like the one Whitmore was driving had been following t h e burnt SUV, and Whitmore was found near the scene of the crime. She also a c t e d suspiciously when stopped and questioned by officers.4 Consequently, W h it m o r e 's arrest was not unlawful, and the district court did not err in denying h e r motion to suppress. b. Pugh's Statements P u g h argues that the district court erroneously failed to suppress his posta r r e s t statements for four reasons: (1) the federal officers violated his Sixth A m e n d m e n t rights by questioning him after he asked for a lawyer; (2) the fe d e r a l officers did not present him in a timely fashion to a judicial officer; (3) t h e federal officers used appeals to religion to secure a confession; and (4) the t o t a lit y of the circumstances justified suppression.

Whitmore makes much of the fact that one of the on-scene officers testified that he did not believe the police had probable cause to arrest her. Nonetheless, we have previously held that "the mere subjective sentiment of the arresting officer or person" is not dispositive in determining the legality of an arrest. United States v. Sealed Juvenile 1, 255 F.3d 213, 219 (5th Cir. 2001).

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No. 09-60400 F ir s t , Pugh claims that his oblique statements to officers suggesting he d e s ir e d counsel were sufficient to trigger his Sixth Amendment rights. Specifically, Pugh argues that he invoked his right to counsel by asking "how he c o u ld go about getting a court appointed attorney . . . ." Pugh's argument is u n a v a ilin g . Under Miranda, a "suspect must unambiguously request counsel." Davis v. United States, 512 U.S. 452, 459 (1994); see also Berghuis v. Thompkins, N o . 08-1470, 2010 U.S. LEXIS 4379, at *19-20 (June 1, 2010) (reaffirming that a suspect must "unambiguously" invoke the Miranda right to counsel and e x t e n d in g that principle to the Miranda right to remain silent). Consequently, t h e district court did not err in refusing to suppress Pugh's statements as he did n o t unequivocally invoke his Sixth Amendment right to counsel. Next, Pugh claims the district court was obliged to suppress his s t a t e m e n t s because he was not timely presented before a judicial officer. In t o t a l, Pugh was held in custody for six days before appearing before a federal m a g is tr a t e judge. The Supreme Court has held that post-arrest statements o b ta in e d outside the six-hour safe harbor created by 18 U.S.C. § 3501(c) should b e suppressed where the delay was unreasonable or unnecessary. Corley v. U n ite d States, 129 S. Ct. 1558, 1571 (2009). However, this obligation does not a r is e until a defendant is subject to a federal arrest. "Until a person is arrested o r detained for a federal crime, there is no duty, obligation, or reason to bring h im before a judicial officer `empowered to commit persons charged with offenses a g a in s t the laws of the United States . . . .'" United States v. Alvarez-Sanchez, 5 1 1 U.S. 350, 358 (1994). Pugh was arrested by state officers for a state offense. Further, Pugh has not offered any evidence to suggest state officials acted in c o llu s io n with federal officials with an aim of depriving him of the right of timely p r e s e n t m e n t . As such, Pugh has not demonstrated that he was deprived of his r ig h t to timely presentment on the federal charges at issue.

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No. 09-60400 T h ir d , Pugh claims that his statements should have been suppressed b e c a u s e the interrogating officers made appeals to his religious beliefs. But an in t e r r o g a t i n g officer's mere reference to religious beliefs does not alone in v a lid a t e a confession. Pugh's reliance on Brewer v. Williams, 430 U.S. 387 (1 9 7 7 ), to claim otherwise is misplaced. Brewer, as recognized by this court in U n ite d States v. Dougall, 919 F.2d 932 (5th Cir. 1990), concerned the use of r e lig io u s beliefs to disregard a defendant's invocation of his right to counsel. Brewer, 430 U.S. at 400-01 (discussing the "Christian burial speech" as a s u r r e p t it io u s interrogation). Pugh never invoked his right to counsel and all a v a ila b le evidence suggests his statements were voluntarily given. As such, the o ffic e r s ' appeals to religious beliefs do not render his statements inadmissible. F in a lly , Pugh claims the totality of the circumstances surrounding his in t e r r o g a t io n require suppression of his statements. None of the evidence cited b y Pugh suggests officers employed coercion so as to make Pugh's statements in v o lu n t a r y . As such, the district court did not err in denying Pugh's motion to s u p p r e s s his post-arrest statements. c . Borden's Statements B o r d e n also claims that his statements to police after his arrest should h a v e been suppressed because he never waived his Miranda rights. The

g o v e r n m e n t does not dispute that Borden's statements were inadmissible. Instead, it argues Borden's claim is meritless because Borden's post-arrest s t a t e m e n t s were never admitted at trial. We agree. Even assuming the district c o u r t erred in denying Borden's motion, any resulting error was rendered h a r m le s s by the fact that the evidence Borden sought to have suppressed was n e v e r introduced. e n tit le d to relief. Because the alleged error was harmless, Borden is not

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No. 09-60400 2 . The Admission of Evidence Taken from Pugh's Home N o evidence in the record supports Pugh's contention that his home was s e a r c h e d before police obtained a warrant. While the record shows that the New O r le a n s Crime Lab was "requested" to conduct a search roughly two hours before a warrant issued, nothing suggests the search itself was conducted at that time. Additionally, the responsible FBI agent affirmatively testified that the search d id not begin until after the warrant was signed. Accordingly, Pugh was not e n tit le d to suppress the evidence obtained from the search of his residence. 3. The Admission of Evidence Regarding Pugh's Medical Examination P u g h also claims the trial court erred in refusing to suppress the results o f a medical examination conducted after his arrest. The examination was in t r o d u c e d as evidence confirming he had suffered burns and linking him to the d e s t r u c t io n of the SUV and McCoy's body. The mere lack of consent to

t r e a t m e n t by a suspect in custody does not, by itself, mandate exclusion, and P u g h 's attempt to invoke the Fourth Amendment protection against bodily in tru s io n s to exclude this evidence is unavailing. Pugh's cited

a u t h o r it y -- W in s to n v. Lee, 470 U.S. 753 (1985)--only concerned intrusions into t h e body and the concomitant possibility for dignitary and privacy-related h a r m s . Here, the disputed evidence consisted of nothing more than a doctor's o b s e r v a t io n s of burns on the surface of Pugh's body. Consequently, the district c o u r t properly refused to suppress the evidence of Pugh's medical examination. D . The Trial Court's Evidentiary Rulings A p p e lla n ts individually and collectively assert three claims of error flowing fr o m the district court's rulings on the evidence admitted at trial. "Generally, c h a lle n g e s to the admission of evidence at trial are reviewed by this court for an a b u s e of discretion, subject to harmless error analysis." United States v.

S te p h e n s , 571 F.3d 401, 409 (5th Cir. 2009) (internal quotation marks omitted). 1. The Admission of the 911 Tape 10

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No. 09-60400 A p p e lla n ts argue that the tape of a 911 call placed by a local firefighter b a s e d upon information received from two unidentified witnesses who did not t e s t ify at trial constituted impermissible double hearsay under Federal Rule of E v id e n c e 805. At trial, the district court prohibited the firefighter from

t e s t ify in g as to the information provided by the unidentified witnesses on the g r o u n d s that the information provided by those individuals constituted hearsay. Whitmore argues that the same objection should have excluded the 911 tape as it contains the same inadmissible hearsay compounded by a second layer of h e a r s a y .5 Nonetheless, even assuming the district court erred, any resulting e r r o r was harmless. The 911 tape identifies the location where the SUV went o ff the road, states that a black male was seen in the vicinity, describes a silver S c io n also in the area, and mentions reports of shots fired. All of this

i n fo r m a tio n was also admitted at trial through a number of other sources, in clu d in g the testimony of Mogilles and Jones. Consequently, Appellants are not e n tit le d to relief on these grounds. 2 . The Admission of the Government's Expert Testimony M a u r e e n Bradley, a Ph.D. in analytical chemistry, offered testimony at t r ia l linking paint chips found at the murder scene to the burned SUV found s o m e distance away. Appellants contend the district court erred in admitting B r a d le y 's testimony on the grounds that there were no studies that established t h e error rate for paint chip matching, Bradley kept no database of paint chip c o m p a r is o n s , and Bradley kept no statistics on the success and error rates of her p a in t chip comparisons. In short, Appellants contend Bradley's testimony was

Appellants' subsidiary argument that the admission of the 911 tape violated the Confrontation Clause is foreclosed by Supreme Court precedent designating the information contained in the tapes as "nontestimonial." See Davis v. Washington, 547 U.S. 813, 822 (2006) ("[S]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.").

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No. 09-60400 c o m p r o m is e d by the fact that she could not satisfy one of the Daubert 6 fa c t o r s -- e s t a b lis h in g an error rate for the applied methodology. Yet, the

g o v e r n m e n t was not required to satisfy every Daubert factor. See United States v . Norris, 217 F.3d 262, 269 (5th Cir. 2000) ("Daubert makes clear that these fo u r factors are non-exclusive and do not constitute a definitive checklist or test." (in t e r n a l quotation marks and citations omitted)). Bradley had testified before a s an expert witness on the same subject matter. She described the development o f a recognized methodology for comparing paint chips and the scientific l i t e r a t u r e associated with the field. Her results were peer-reviewed. Finally, P u g h 's cross-examination made the jury aware of the potential error rate issue u n d e r ly in g Bradley's testimony. As such, the district court did not abuse its d is c r e t io n in admitting Bradley's testimony. 3 . Rule 403 Objections to the Admission of Photos of McCoy A p p e lla n t s contend the court erred by failing to exclude numerous photos o f McCoy's burnt body under Federal Rule of Evidence 403. Specifically,

A p p e lla n t s claim the admission of several photos of McCoy's burnt and bloody h a n d s and back, McCoy's body, and McCoy's head resulted in unfair prejudice a t trial. Under Rule 403, a district court is only required to exclude evidence if i t s prejudicial effect substantially outweighs its probative value. See United S ta te s v. Fields, 483 F.3d 313, 354 (5th Cir. 2007); see also FED. R. EVID. 403. " [W ]e will not lightly second-guess a district court's decision to admit relevant e v id e n c e over a Rule 403 objection. . . . Thus, a district court's decision on Rule 4 0 3 grounds is disturbed `rarely' and only when there has been `a clear abuse of d is c r e t io n .'" Fields, 483 F.3d at 354. Though the disputed photos are admittedly gruesome, the district court's d e c is io n to permit their introduction does not rise to the level a clear abuse of

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Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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No. 09-60400 d is c r e t io n . Appellants concede that at least some of the photos were necessary t o support the testimony of the medical examiner. As such, the prejudicial im p a c t of the introduction of additional photos was thereby diminished. Moreover, as the government argues, the photos were also probative of why the g o v e r n m e n t was able to offer little in the way of physical evidence--it had been b u r n e d along with the body. The photos also corroborated Mogilles's testimony a n d provided evidence of how McCoy had been incapacitated before his death. Consequently, the district court did not clearly abuse its discretion when it c o n c lu d e d that the prejudice created by photos of McCoy's body did not s u b s t a n t ia lly outweigh their probative value. E . Sufficiency of the Evidence W h it m o r e and Borden appeal the district court's denial of their motions fo r judgment of acquittal.7 Where, as here, a sufficiency of the evidence

a r g u m e n t is raised in a timely motion for judgment of acquittal, we "examin[e] t h e evidence and all reasonable inferences drawn therefrom in the light most fa v o r a b le to the verdict, and ask[] whether a rational trier of fact could have fo u n d guilt beyond a reasonable doubt." United States v. Garcia, 567 F.3d 721, 7 3 1 (5th Cir.), cert. denied sub nom. Arriaga-Guerrero v. United States, 130 S. C t . 303 (2009). "`[I]t is not necessary that the evidence exclude every reasonable h y p o t h e s is of innocence or be wholly inconsistent with every conclusion except t h a t of guilt, provided a reasonable trier of fact could find that the evidence e s t a b lis h e s guilt beyond a reasonable doubt.'" Id. (quoting United States v. Bell, 6 7 8 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc)). This standard applies r e g a r d le s s of whether the evidence is direct or circumstantial. United States v. M e r g e r s o n , 4 F.3d 337, 341 (5th Cir. 1993).

Pugh has not raised any such claim on appeal. Consequently, any claim of error regarding sufficiency as to Pugh has been waived. Askanase v. Fatjo, 130 F.3d 657, 668 (5th Cir. 1997) ("All issues not briefed are waived.").

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No. 09-60400 1 . Whitmore W h it m o r e was convicted of kidnapping resulting in death and kidnapping r e s u lt in g in serious injury on a theory of aiding and abetting. Accordingly, the g o v e r n m e n t was required to prove beyond a reasonable doubt that (1) the u n d e r ly in g offense occurred; (2) Whitmore knowingly associated with the c r im in a l venture; (3) she purposefully participated in the criminal activity; and (4 ) she sought by her actions to make the criminal venture succeed. United S ta te s v. Gulley, 526 F.3d 809, 816 (5th Cir.), cert. denied 129 S. Ct. 159 (2008). Whitmore's only contention on appeal is that the government failed to provide e v id e n c e of any "interaction" between Whitmore and Pugh and Borden regarding t h e kidnappings. C o n t r a r y to Whitmore's argument, the government presented sufficient e v id e n c e to permit a reasonable juror to conclude beyond a reasonable doubt she w a s aware of the kidnapping and voluntarily participated in the crime with an a im towards making the venture succeed. The evidence demonstrated that (1 ) Whitmore saw Mogilles lying on the patio of Pugh's home "pleading" after he h a d been assaulted; (2) Whitmore saw Mogilles being taken to the SUV;8 (3 ) Whitmore followed the SUV to the scene of murder thereby allowing Pugh a n d Borden to abandon and burn the vehicle; (4) Whitmore exercised control o v e r the SUV while in transit to the murder scene by making it stop while she p u r c h a s in g gasoline for the Scion; (5) and Whitmore lied about knowing Pugh a n d Borden and why her Scion was in the area when confronted by police only t o later admit that she had been present at the outset of the criminal venture. In response to this evidence, Whitmore cites United States v. Barnett, 197 F.3d

Whitmore vigorously contended at oral argument that evidence in the record contradicts Mogilles's testimony on this point. Regardless, we cannot and will not usurp the role of the jury to make credibility determinations or weigh contradictory evidence. Brennan's Inc. v. Dickie Brennan & Co., 376 F.3d 356, 362 (5th Cir. 2004) ("[T]he court may not make credibility determinations or weigh the evidence, as those are jury functions.").

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No. 09-60400 1 3 8 (5th Cir. 1999), but in that case the defendant never knew of the specific u n d e r ly in g unlawful act. Id. at 146-47. Here, a reasonable juror could conclude b e y o n d a reasonable doubt that Whitmore was aware of the kidnapping that b e g a n in her presence within her home, that her participation in the crime was p u r p o s e fu l, and she sought by her actions to make the criminal venture succeed. Consequently, while the evidence was not overwhelming, it was sufficient to s u p p o r t the jury's verdict. As such, the district court correctly denied

W h it m o r e 's motion for judgment of acquittal. 2 . Borden B o r d e n contends that the district court erred in denying his motion for ju d g m e n t of acquittal because (1) there was no proof he knew the unlawful p u r p o s e or object of the conspiracy and joined in it willfully; (2) there was no p h y s ic a l evidence that he held or fired the murder weapon during the k id n a p p in g ; and (3) the cumulative effect of the trial court's errors was to d e p r i v e of his right to a fair trial. All three claims lack merit, and the district c o u r t correctly denied Borden's motion for judgment of acquittal. A s to the first claim, Borden suggests the government was required to p r e s e n t direct evidence that he "knew the unlawful purpose" when he acted to k id n a p McCoy and Mogilles with Pugh and Whitmore. We have previously held t h a t "[d]irect evidence of a conspiracy is unnecessary; each element may be in fe r r e d from circumstantial evidence." Mitchell, 484 F.3d at 768-69 (internal q u o t a t io n marks omitted). Moreover: "An agreement may be inferred from a `c o n c e r t of action.'" Id. at 769 (internal quotation marks omitted). Consequently, t h e evidence that Borden held the murder weapon to McCoy's head during the k id n a p p in g was sufficient in itself to demonstrate an agreement to participate. A s to the second claim, Borden argues that the government failed to p r e s e n t evidence that Borden had gun powder residue on his hands or that his fin g e r p r in t s were found on the murder weapon, thus the evidence did not 15

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No. 09-60400 s u p p o r t the jury's finding that he used a firearm in the kidnapping. Yet Mogilles t e s t ifie d that he observed Borden with a handgun aimed at McCoy during the k id n a p p in g . We find the jury was free to rely upon the testimony given at trial t o conclude that Borden held the gun on the victims. Garcia, 567 F.3d at 731 (" `A jury is free to choose among reasonable constructions of the evidence.'" (q u o tin g Bell, 678 F.2d at 549 )). Finally, as to the cumulative errors claim, where we find no merit in any o f a defendant's claims of error, his claim of cumulative error must also fail. See U n ite d States v. Moye, 951 F.2d 59, 63 n.7 (5th Cir. 1992). As such, the district c o u r t did not err in denying Borden's motion for judgment of acquittal. D . The Reasonableness of Appellants' Sentences Whitmore and Borden9 advance various procedural and substantive o b je c t io n s to their sentences. In Gall v. United States, 552 U.S. 38 (2007), the S u p r e m e Court set out a bifurcated approach for conducting a sentencing review. An appellate court must first determine whether the district court committed a n y significant procedural error. Id. at 51. If there is no procedural error, we t h e n "consider the substantive reasonableness of the sentence imposed under an a b u s e -o f-d is c r e t io n standard" to the extent it has been raised by the appealing p a r ty . Id. The district court's interpretation or application of the Sentencing G u id e lin e s is reviewed de novo, and its factual findings are reviewed for clear e r r o r . United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 1. Whitmore W h it m o r e 's argument on appeal concerns only whether the district court c o m m it t e d a procedural error; she does not otherwise argue the substantive r e a s o n a b le n e s s of her sentence. Specifically, Whitmore contends the district

Pugh does not assert any claims error regarding his sentence. As such, any challenge to the procedural computation or substantive reasonableness of his sentence has been waived. See Askanase, 130 F.3d at 668.

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No. 09-60400 c o u r t erred (1) by accepting the pre-sentence report's ("PSR") recommendation o f an offense level of 43 for the kidnapping resulting in McCoy's murder; and (2) b y declining to designate her a "minimal participant" under U.S. Sentencing G u id e lin e s Manual § 3B1.2. R e g a r d in g the PSR recommendation, Whitmore claims that she should not h a v e been subject to the higher penalty for kidnapping resulting in death b eca u se McCoy's murder was not reasonably foreseeable under the

c ir c u m s t a n c e s . As discussed above, several pieces of evidence demonstrated not o n ly that Whitmore was an active participant in the kidnappings but, as is r e le v a n t to her sentence, that she was aware that a violent assault on Mogilles a n d McCoy initiated the kidnappings. She saw Mogilles on the ground pleading a ft e r having been hit over the head, and she saw both men dragged to the SUV. Though she may not have seen the murder weapon, the violence she observed b e fo r e the kidnapping was sufficient to permit the district court to conclude that M c C o y 's murder and the injuries to Mogilles were reasonably foreseeable. Accordingly, the district court did not abuse its discretion by adopting the PSR's le v e l 43 recommendation. W it h respect to the "minimal participant" provision, Whitmore claims that she was entitled a sentence reduction because she did not commit any of the p h y s ic a l acts necessary to carry out the kidnappings or the subsequent murder a n d assault.1 0 "Whether [a defendant] was a minor or minimal participant is a fa c t u a l determination that we review for clear error." United States v.

V illa n u e v a , 408 F.3d 193, 203 (5th Cir. 2005). It is not enough that the evidence r e fle c t s that a defendant "[did] less than other participants; in order to qualify

To the extent Whitmore argues in the alternative that the district court "failed to consider" her request to be treated as a "minimal participant," the district court clearly and directly considered and rejected Whitmore's request--a point even Whitmore concedes elsewhere in her brief.

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No. 09-60400 a s a minor participant, a defendant must have been peripheral to the a d v a n c e m e n t of the illicit activity." Id. at 204 (internal quotation marks

o m it t e d ). Whitmore traveled from Louisiana to Mississippi following what the ju r y found she knew to be a kidnapping in progress. Her presence was needed t o provide the "getaway car" and enable Pugh and Borden to burn the evidence o f the crime. It may very well be that her association with Pugh led her into this c r im e which she might otherwise have not committed. However, that fact does n o t require a finding that she was a minimal participant. In light of the facts b e fo r e the district court, we conclude that it did not clearly err in declining to a p p ly the "minimal participant" sentencing reduction. 2 . Borden Borden broadly contends that his sentence is "extremely harsh compared t o the actual crime that was committed" and, thus, substantively unreasonable u n d e r 18 U.S.C. § 3553(a). Borden has failed to articulate which--if any--of the §3 5 5 3 (a ) factors would demonstrate the unreasonableness of his sentence. When a sentence falls within a properly calculated guidelines range, the sentence is p r e s u m p t iv e ly reasonable. See United States v. Medina-Argueta, 454 F.3d 479, 4 8 1 (5th Cir. 2006). Borden's life sentence fell within the properly calculated r a n g e for his convictions. He has offered nothing but naked assertions of excess t o rebut this presumption. Accordingly, we find the district court did not abuse it s discretion in imposing Borden's sentence--particularly in light of the s ig n ific a n t evidence presented to the district court regarding Borden's personal c u lp a b ilit y for a very serious and violent crime. I I I . CONCLUSION F o r the reasons set forth above, the judgment of the district court is A F F IR M E D .

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