                             REVISED
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                          No.    96-20350




                    UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

                                VERSUS

             JOSHUA MAZIQUE BURTON; QUINTON B. CARR

                                            Defendants - Appellants.



          Appeals from the United States District Court
                For the Southern District of Texas
                         October 17, 1997


Before DUHÉ and BARKSDALE, Circuit Judges, and COBB, District
Judge.1

JOHN M. DUHÉ, JR., Circuit Judge:

     Appellants Joshua Burton and Quinton Carr were convicted and

sentenced for conspiracy to commit robbery, in violation of 18
U.S.C. § 371 (“conspiracy”), and for attempted robbery by force,

violence and intimidation, in violation of 18 U.S.C. §§ 2113(a) and

2 (“bank robbery”). On appeal, Appellants contend the Government’s

evidence was insufficient to convict them of either offense and

that the district court erred in adding a six-level increase to



     1
      District Judge of the Eastern District of Texas, sitting by
designation.
their offense levels for “otherwise using a firearm.”      We affirm.

                             BACKGROUND

       On December 21, 1994, two armed men attempted to rob Bank One

in Missouri City, Texas at around 2:30 p.m.      The men were dressed

in grey sweat suits and wore black masks.    They pointed guns at the

bank employees and threatened to kill the employees if they did not

cooperate.     After unsuccessfully attempting to enter the bank

vault, the men abandoned their robbery attempt.      Before leaving,

the robbers threatened to blow up the bank and left two small

packages they removed from a black duffel bag.      The packages were

actually shoe boxes containing road flares, wires and an alarm

clock and could not be detonated.      The only description of the

robbers the bank employees could provide was that the skin around

their eyes not covered by the masks revealed the men were African-

American.

       A witness using the ATM outside the bank saw two men in grey

sweat suits run out of the bank carrying a black duffel bag, enter

a parked blue car, and drive away, apparently driven by a third

man.   Policemen soon arrived and found the car abandoned, with the

motor running, at a nearby car wash.   The car was later determined

to belong to Quinton Carr (“Carr”).       Around midnight on December

22, the morning after the robbery attempt, Carr called the police

and reported the car stolen.

       The Government alleged that Joshua Burton (“Joshua”) and his

cousin, Wilton Burton (“Wilton”), actually entered the bank, and

that Carr (Joshua’s cousin and Wilton’s brother) allowed his car to


                                  2
be used for the getaway and also picked up Joshua and Wilton after

the   robbery.       Wilton      gave    a   statement        to   police    apparently

implicating Joshua and Quinton in the robbery, but recanted that

statement    at   trial,        claiming     he   had    confessed      only   because

policemen were beating him.             After a trial in which the Government

relied     largely    on       circumstantial       evidence,       Appellants       were

convicted on both counts.

                                        ANALYSIS

I.    SUFFICIENCY OF THE EVIDENCE

      In reviewing the sufficiency of the evidence, we view the

evidence and all inferences to be drawn from it in the light most

favorable to the verdict to determine if a rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.      United States v. Broussard, 80 F.3d 1025, 1030

(5th Cir.), cert. denied, 117 S.Ct. 264 (1996). “The evidence need

not exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, and the

jury is free to choose among reasonable constructions of the

evidence.”     United States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.

1994).     The standard of review is the same regardless whether the

evidence is direct or circumstantial.                United States v. Cardenas,

9 F.3d 1139, 1156 (5th Cir. 1993).

      To   establish       a    conspiracy       under   18    U.S.C.    §    371,   the

Government must prove (1) an agreement between two or more persons,

(2) to commit a crime, and (3) an overt act committed by one of the

conspirators in furtherance of the agreement.                       United States v.


                                             3
Gray, 96 F.3d 769, 772-73 (5th Cir. 1996), cert. denied, 117 S.Ct.

1275 (1997). The conspiracy need not be proved by direct evidence,

but agreement may be inferred from circumstantial evidence, such as

concert of action.      United States v. Schmick, 904 F.2d 936, 941

(5th Cir. 1990).       “When the [G]overnment attempts to prove the

existence of a conspiracy by circumstantial evidence, each link in

the inferential chain must be clearly proven.”               United States v.

Galvan, 693 F.2d 417, 419 (5th Cir. 1982).                    Proof of “mere

association”    with   persons     involved      in     criminal   activity   is

insufficient,     by   itself,     to       establish    participation   in   a

conspiracy.     Id. at 420.      Likewise, familial relationships alone

will not support a conspiracy conviction; “[i]nferences drawn from

familial relationships or mere knowing presence, however, may be

combined with other circumstantial evidence to support a conspiracy

conviction.”    Broussard, 80 F.3d at 1031, citing            United States v.

Williams-Hendricks, 805 F.2d 496, 503 (5th Cir. 1986).

     To convict of bank robbery under 18 U.S.C. § 2113(a), the

Government must prove (1) an individual or individuals (2) used

force and violence or intimidation (3) to take or attempt to take

(4) from the person or presence of another (5) money, property or

anything of value, (6) belonging to or in the care, custody,

control, management, or possession (7) of a bank, credit union, or

savings and loan association.           United States v. McCarty, 36 F.3d

1349, 1357 (5th Cir. 1994).

     A person who aids or abets the commission of a crime is

punishable as a principal.         18 U.S.C. § 2.         To prove aiding and


                                        4
abetting,       the   Government   must    show   that   the    defendant   (1)

associated with the criminal venture; (2) participated in the

venture; and (3) sought by action to make the venture succeed.

United States v. Salazar, 66 F.3d 723, 729 (5th Cir. 1995).

     A.       Joshua Burton

               1.   Testimony of Wilton Burton

     Wilton Burton made a videotaped statement to the police in

which he apparently implicated the Appellants in the planning and

commission of the bank robbery.            He testified for the Government

under a grant of both state and federal immunity.                    At trial,

however, Wilton recanted his earlier statement, claiming that he

had made it only because the police were beating and kicking him.

The court allowed a portion of his videotaped statement to be

played before the jury, but only for the purpose of impeachment, to

demonstrate Wilton’s demeanor during the taping.               The substance of

most of Wilton’s statement is not of record; the Government may

thus not rely on it as evidence of Joshua Burton’s guilt.2                  The

Government did try, however, to elicit from Wilton on direct

examination what he told the police.

      At trial, Wilton categorically denied any involvement in or

          2
         In its brief, the Government recites at length facts
allegedly from Wilton Burton’s statement to investigating officers.
We cannot understand, however, how the Government hopes to rely on
this “evidence” as supporting Joshua Burton’s convictions: Wilton
Burton’s statement to the officers is simply not of record. We
also note that the Assistant United States Attorney in this case
improperly referred to the substance of Wilton’s statement in his
closing argument and even invited the jury to consider “parts of
what he said happened that day and recanted.” Such comments were
improper, but, as Appellants did not raise them as error on appeal,
we also do not address them.

                                       5
knowledge of the attempted robbery.3                 He did admit on direct

examination, however, to having made certain admissions to agents

during questioning:

     Q: You told [F.B.I. agent Johnson] you were one of the
     men that walked into the bank?

     A:       Yes.
                                      * * *

     Q: You said Joshua [Burton] was the other man in these
     photographs you looked at? (referring to photographs of
     the robbers taken by bank cameras)

     A:       Yes.

Wilton also admitted to telling police that Carr picked him up at

his cousin Christopher Spooner’s house early on the morning of the

robbery and that they went to see their cousin, Craig Burton;4 that

Wilton, Joshua, Carr, Spooner, and Craig Burton had robbed the

bank; and, that he and Joshua had gone to rob the bank in Carr’s

automobile.          Of course, Wilton denied that these statements were

true; he admitted only that he had made them, but while under

duress.

               2.    Asia Morgan’s Testimony

     The court admitted against Joshua Burton the testimony of Asia

Morgan    regarding       one   conversation   she    overheard   between   her

husband, Christopher Spooner, and Wilton Burton and another she


          3
         The Government later established that Wilton Burton’s
fingerprint was found on one of the fake bomb shoeboxes recovered
from the scene of the robbery.
     4
      Craig Burton is yet another relative of Appellants and was
indicted for the same crimes. At the close of the Government’s
case, however, the court granted Craig Burton’s motion for judgment
of acquittal.

                                        6
herself had with Wilton.      Christopher Spooner is Wilton Burton’s

cousin; Wilton regularly spent the night at Asia and Christopher’s

apartment.

     On appeal, Joshua Burton contends the court erred in admitting

Asia’s testimony because it was hearsay and did not fall within the

“co-conspirator”      exception    of        Federal     Rule    of   Evidence

801(d)(2)(E).5 Before admitting a co-conspirator’s statement under

this Rule, the court must determine by a preponderance of the

evidence (1) that there was a conspiracy involving the declarant

and the non-offering party, and (2) that the statement was made

“during the course and in furtherance of the conspiracy.”               United

States v. Bourjaily, 483 U.S. 171, 175 (1987); United States v.

McConnell, 988 F.2d 530, 533 (5th Cir. 1993).                   In making that

determination, the court may consider the hearsay statements sought

to be admitted.      Bourjaily, 483 U.S. at 181.          Joshua argues that

there was insufficient evidence to find he was a member of the

conspiracy.    He also maintains, in any case, that the statements

testified to by Asia Morgan were not “in furtherance of” the

conspiracy.

     The court found, by a preponderance of the evidence, that

Joshua was a member of a conspiracy including Wilton Burton and

Quinton Carr.     The court made no finding, however, whether the

statements    Asia   testified    to       were   “in   furtherance   of”   the


      5
       “A statement is not hearsay if . . . [t]he statement is
offered against a party and is . . . a statement by a coconspirator
of a party during the course and in furtherance of the conspiracy.”
Fed. R. Evid. 801(d)(2)(E).

                                       7
conspiracy.

     We must first address whether Joshua Burton adequately raised

these issues in the district court.     An appellant must raise an

objection to the admission of evidence at trial such that the issue

is presented to the district court “with sufficient specificity.”

United States v. Maldonado, 42 F.3d 906, 910 (5th Cir. 1995).      A

sufficiently specific objection is necessary at trial so that

“testimony could have been taken, and argument received, on that

issue; and [so that] the district court would have dealt with it.”

Maldonado, 42 F.3d at 912.    If the issue was not adequately raised

at trial, we review only for plain error.         United States v.

Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc).

     Near the beginning of Asia Morgan’s direct examination, the

Government asked her whether she had ever heard Wilton Burton speak

to her husband “about planning a bank robbery.”      At that point,

counsel for Craig Burton and Joshua Burton made the following

objections:

     MR. WILSON: Your Honor, I’d object to any references
     to my client Craig Burton under 801.d2e.

     MS. KAPUNGU:   The same would apply to Joshua Burton.

(emphasis added).   The court did not immediately rule on those

objections;   instead, it instructed the Government to “ask the

question” again. The Government’s questions immediately subsequent

to those objections did not raise any hearsay matters and so there

were no further objections.

     Soon after that exchange, there was a bench conference in

which the AUSA indicated that the Government intended to introduce

                                  8
testimony by Asia regarding a conversation she had had with Wilton

Burton that alluded to the bank robbery and implicated Joshua. The

court then questioned the AUSA as to what evidence the Government

had linking Joshua to the conspiracy involving Wilton Burton and

Quinton Carr.6   When the AUSA informed the court that it intended

to introduce the testimony of F.B.I. Agent Eric Johnson (see

discussion    infra   Part   I.A.4)      that   would   link   Joshua   to   the

conspiracy, the court made the following finding:

     Subject to that evidence coming in and then conditioned
     upon [its] admissibility, I am going to I conclude
     [sic] that Joshua was a member of this same conspiracy
     that I earlier found by a preponderance of the evidence
     existed between Wilton Clyde Burton Junior and Quinton
     Carr.

During this colloquy, counsel for Joshua Burton raised only the

sufficiency of the Government’s evidence linking Joshua to the

conspiracy.    The “in furtherance” requirement of 801(d)(2)(E) was

not mentioned and the court made no findings on that point.

     On   this   record,     we   find    that    Joshua   Burton’s     counsel

adequately objected to Morgan’s testimony on the ground that

sufficient evidence had not been adduced to link Joshua to the

conspiracy.    The issue whether the statements to which Asia Morgan

testified were “in furtherance of” the conspiracy, however, was not

specifically raised.         On appeal, Joshua Burton relies on his

counsel’s objection to Asia Morgan’s testimony “under 801.d2e”;

indeed,   in his brief Joshua Burton claims that “[h]is objection


      6
      The court had previously found, by a preponderance of the
evidence, that a conspiracy existed between Wilton Burton and
Quinton Carr.

                                      9
could not have been more precise.”     In this particular context,

however, that is not the case.

     In Maldonado, the issue was whether defense counsel objected

with sufficient specificity that a police officer’s Terry stop and

patdown search of defendant contravened the Supreme Court’s (then)

recent decision in Minnesota v. Dickerson, 508 U.S. 366 (1993).7

During the patdown, the officer discovered a bulge in defendant’s

boot, reached in and withdrew a rounded, duct-taped package and

opened it;   the package contained heroin.    Counsel objected that

the officer had no “probable cause” to open the package, but did

not cite Dickerson to the court, even though Dickerson had been

decided three and one-half months before defendant’s motion to

suppress was filed.   We determined that the Dickerson issue had not

been adequately raised at trial and therefore reviewed for plain

error.   Maldonado, 42 F.3d at 912.

     Joshua Burton argues that Maldonado resolves the question in

his favor:   counsel in Maldonado did not cite Dickerson to the

district court and therefore forfeited the error based on Dickerson

(i.e., that the officer’s “plain feel” seizure of the heroin

violated Terry because it should have been immediately apparent to

the officer that the package was not a weapon);        by contrast,

Joshua’s trial counsel cited the specific rule and subsection of

    7
     Dickerson held that an officer may lawfully seize contraband
during a Terry search only if the search remains within the bounds
of Terry (i.e., the officer is investigating an object that may
reasonably be a weapon) and the object’s identity as contraband is
“immediately apparent.”    See Maldonado, 42 F.3d at 909, citing
Dickerson, 508 U.S. at 375; see also Terry v. Ohio, 392 U.S. 1, 26
(1968).

                                 10
the Federal Rules of Evidence on which her objection was based.

Therefore, Joshua argues, her objection was sufficiently specific

to bring any issue under 801(d)(2)(E) before the district court.

Joshua, however, exaggerates the “specificity” of trial counsel’s

objection and misapprehends the thrust of Maldonado.

     Under Maldonado, a determination whether an objection was made

with “sufficient specificity” does not hinge on whether counsel

cited a specific case or article in her objection.     Instead, the

touchstone is whether the objection was specific enough to allow

the trial court to take testimony, receive argument, or otherwise

explore the issue raised.   Maldonado, 42 F.3d at 912.8   Certainly,

citing a specific case or article to the court could shed more

light on the substance of an objection.   On this record, however,

more was necessary to bring the “in furtherance” issue before the

district court.

     First, Rule 801(d)(2)(E) contains at least four possible bases

for an objection to proffered co-conspirators’ testimony: that the

declarant was not a co-conspirator; that the party against whom the


      8
       In Maldonado we did indicate that a specific citation to
Dickerson would probably have been sufficient to bring the issue
before the district court. Maldonado, 42 F.3d at 910 (“At no stage
of the suppression process was Dickerson ever cited to the district
court . . .”). That was true in Maldonado, not because citing a
case or rule magically presents a particular issue to the court,
but because in the precise context of Maldonado (an evidentiary
suppression hearing regarding the propriety of a Terry patdown), a
citation to Dickerson would have been sufficiently specific. In
the instant matter, by contrast, a bare-bones citation to rule
801(d)(2)(E) was not sufficient to bring the “in furtherance” issue
clearly before the district court; the discussion of court and
counsel subsequent to that objection, in which no mention was made
of the “in furtherance” issue, shows this to be true.

                                11
statement is offered was not a co-conspirator; that the statement

was not made “in the course” of the conspiracy; that the statement

was not made “in furtherance of” the conspiracy.    See McConnell,

988 F.2d at 533.   A court could entertain an objection to a co-

conspirator’s statement under any of these distinct bases;     the

objection would still, however, be “under 801(d)(2)(E).”      See,

e.g., McConnell, 988 F.2d at 534.

     Second, the fact that the party offering the co-conspirator’s

statement has the burden of establishing that the statement falls

within 801(d)(2)(E), see United States v. Triplett, 922 F.2d 1174,

1181 (5th Cir. 1991), has no bearing on whether an adequate

objection was raised to the proffered evidence.       Whether the

offering party carried its burden or not, if the objecting party

wants to avoid forfeiting its error on appeal it must object with

“sufficient specificity” to allow the trial court to address the

issue.   Maldonado, 42 F.3d at 910, 912.

     Third, and most importantly, the thrust of the objections here

was whether sufficient evidence linked Joshua to the conspiracy and

not whether the statements were “in furtherance of” the conspiracy.

See Maldonado, 42 F.3d at 911 (“Argument presented at the hearing

by Maldonado’s lawyer after the testimony further indicates he was

concerned only with post-removal probable cause.”).     During the

bench conference at which the propriety of Asia Morgan’s testimony

was before the court, the “in furtherance” requirement was not




                                12
mentioned.9

      In sum, then, the objection that the statements to which Asia

testified were not “in furtherance of” the conspiracy was not

adequately raised. We therefore review that point for plain error.

Calverley, 37 F.3d at 162; Fed. R. Crim. P. 52(b).                    On the other

hand, the ground that the Government had not adduced sufficient

evidence linking Joshua Burton to the conspiracy was adequately

raised.        We will thus review the district court’s finding on that

point for clear error.           United States v. Hawkins, 661 F.2d 436, 450

(5th Cir. 1981).

      We first deal with the district court’s finding that the

Government        proved     that     Joshua    Burton   was   a   member     of   the

conspiracy.           The Government called F.B.I. Agent Eric Johnson, who

testified that he found receipts for clothing and a duffel bag in

a   room       that    Joshua   had   recently    vacated.10       Other    witnesses

identified the objects corresponding to the bar codes on those

receipts (grey sweat clothes and a black duffel bag) as “similar”

to those used in the robbery.11            The Government also introduced the

      9
      Additionally, the “801(d)(2)(E)” objection came well before
that bench conference, and in the context of a different
conversation overheard by Asia between her husband and Wilton
Burton.
      10
       Agent Johnson also testified that he found letters in the
room from Joshua to his girlfriend LeJuangela Jones, thus tying the
objects found in the room to Joshua.
          11
        The actual clothes worn and the duffel bag used in the
robbery were not recovered by the Government. Contrary to what the
Government asserted in its brief, witnesses at trial were shown
items that corresponded to the bar codes on receipts found in
Joshua’s former room, and not the actual items.


                                           13
testimony of Ed Burton, the Appellants’ uncle, that while he was

working in the vicinity of the bank on the morning of the robbery

he thought he saw Joshua Burton driving around in Quentin Carr’s

blue Pontiac (the car that was later found abandoned at the car

wash and identified as the one used in the robbery).             Finally, the

court could have relied on Wilton Burton’s testimony that he told

police he and Joshua were the men appearing in the bank photos of

the robbery.

     Given this evidence, we cannot say the district court’s

determination that Joshua was a member of the conspiracy was

clearly erroneous.

     We   next    turn   to   the   question     whether   admission   of   Asia

Morgan’s testimony constituted “plain error” because the statements

to which she testified were not “in furtherance” of the conspiracy

between Joshua Burton, Wilton Burton and Quinton Carr.                 Fed. R.

Crim. P. 52(b); Fed. R. Evid. 801(d)(2)(E).                  We conclude that

allowing her testimony did not constitute “plain error” in that the

error, if any, was not “plain” under current law.

     We follow a four step analysis for “plain error” review:                (1)

there must be an “error,” i.e., a “deviation from a legal rule,”

that has not been waived;           (2) the error must be “plain,” i.e.,

“clear” or “obvious” under current law; (3) the error must “affect

substantial rights,” i.e., it must have affected the outcome of the

proceeding; and, (4) even if the error was “plain” and “affected

substantial      rights,”     the   Court   of    Appeals,    exercising    its

discretion, should correct the error only if the error “seriously


                                       14
affect[s] the fairness, integrity or public reputation of judicial

proceedings.”       United States v. Olano, 507 U.S. 725, 732-737

(1993); United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.

1994) (en banc).

     Since we resolve the question by reference to the second Olano

factor (i.e., that the error here was not “plain”), we assume

without deciding that the district court’s decision to admit Asia

Morgan’s testimony was error.12           By “plain,” the United States

Supreme Court means “clear” or “obvious” under current law. Olano,

507 U.S. at 734; Calverley, 37 F.3d at 162-164.               Thus, we must

examine,   first,    what   Asia   Morgan   testified   to,    and,   second,

determine whether under current law it is “clear” or “obvious” that

such a statement was not “in furtherance of” the conspiracy under

801(d)(2)(E).

     Asia testified that she had a conversation with Wilton Burton

sometime before December 21, the day of the robbery.             During that

conversation, Wilton told her that “it was going to be a nice

Christmas.”     When asked whether Wilton explained to her why it

would be a “nice Christmas,” Asia testified (after refreshing her

recollection from her grand jury testimony):            “He [Wilton] said

that he and his cousin had planned to rob a bank.”            Asia explained

that Wilton was referring to his cousin “Zeaki”;              it had earlier

been established that “Zeaki” was Joshua Burton’s nickname.               See

discussion infra Part I.A.3.

     12
      For purposes of resolving this issue, then, we assume that
the statements to which she was allowed to testify were not “in
furtherance of” the conspiracy.

                                     15
       The requirement that a co-conspirator’s statement be “in

furtherance of” the conspiracy “is not to be construed too strictly

lest the purpose of the exception be defeated.”               United States v.

Broussard, 80 F.3d 1025, 1039 (5th Cir. 1996); United States v.

Lechuga, 888 F.2d 1472, 1480 (5th Cir. 1989).              We have “shunned an

overly literal interpretation of this [phrase].”                Broussard, 80

F.3d at 1039, quoting United States v. Ascarrunz, 838 F.2d 759, 763

(5th Cir.     1988).       “Mere   idle    conversation,”    however,       is   not

considered “in furtherance of” a conspiracy.                 United States v.

Means, 695 F.2d 811, 818 (5th Cir. 1983); United States v. Miller,

664 F.2d 94, 98 (5th Cir. 1981).

       We have found the following statements to be “in furtherance

of” a conspiracy under 801(d)(2)(E):             “a statement that identifies

the role of one co-conspirator to another” (United States v. Magee,

821    F.2d   234,   244    (5th    Cir.       1987));   statements    conveying

“information [that] could have been intended to affect future

dealings between the parties” (United States v. Patton, 594 F.2d

444,    447   (5th   Cir.    1979));       “[p]uffing,    boasts,     and    other

conversation . . . when used by the declarant to obtain the

confidence of one involved in the conspiracy” (Miller, 664 F.2d at

98); “statements which are puffing or boasts, but which are used to

obtain the confidence of the person toward whom the statement is

directed” (United States v. Johnson, 872 F.2d 612, 623 (5th Cir.

1989)).    See also United States v. Smith, 833 F.2d 213, 219 (10th

Cir. 1987) (“[S]tatements that explain events of importance to the

conspiracy in order to facilitate its operation are considered to


                                          16
be in furtherance of the conspiracy.”).

     We cannot, after examining the current law construing the “in

furtherance of” requirement of 801(d)(2)(E), say that the error, if

any, was “plain.”         Given the vague nature and context of the

comments made to Asia by Wilton Burton, we are not prepared to deem

it “plain” under current law that these statements were not “in

furtherance of” the conspiracy.

               3.   Testimony of Ed Burton

     Ed Burton, both Joshua Burton and Quinton Carr’s uncle,

testified that on the morning of December 21, while he was on his

way to work, he thought he saw his nephew Joshua driving Carr’s

vehicle13 in the vicinity of Bank One.       Although Ed had not seen

Joshua in four or five years, he testified that he would have been

able to recognize him.14       Ed called out to his nephew when he saw

him, but received no response.15

     Ed also testified that later that day, around 3:00 p.m., he

saw the same car fleeing the scene of the robbery (he was unable to

identify its occupants at that time, however).           When shown a

picture of the car found abandoned at the car wash, Ed Burton

          13
        Ed Burton initially testified that the car was “green.”
Further testimony established that Ed was not particularly “good on
colors.” He was able to identify the car as the same one depicted
in the photos shown to him of the car wash. The jury could have
reasonably believed, then, that Ed made a mistake when he
originally testified the car was “green” and not “blue.”
     14
           Ed also testified that Joshua’s nickname was “Zeaki.”
          15
        It bears noting here that Rita Gwen, Carr’s girlfriend,
testified that Carr picked her up that same morning in a cream-
colored Lexus;   it was shown that Joshua drove a cream-colored
Lexus. See discussion infra Part I.B.3.

                                     17
identified it as the same car he had seen twice before on the day

of the robbery in the vicinity of Bank One.

            4.   Clothing and duffel bag receipts.

     F.B.I. Agent Eric Johnson testified that on December 23, 1994

he searched a room where Joshua Burton had been staying.16   In the

room, Agent Johnson found three receipts, one from K-Mart and two

from Academy, dated November 30, 1994 (about three weeks before the

robbery).

     An employee of K-Mart testified that the UPC codes on the K-

Mart receipt corresponded to a duffel bag and to a “small, flat

hat.”    When shown photos from the bank robbery, she also stated

that the hats the robbers had pulled down over their faces were

similar to the type indicated by the UPC codes on the receipts.

Other eye-witnesses to the robbery testified that a duffel bag

matching the code on the receipt was similar to the one the robbers

were carrying and from which they took the fake bombs.

     An employee of Academy testified that the SKU numbers on the

Academy receipt corresponded to grey sweat pants, a small sweat

shirt, and a large hooded sweat shirt.         Eye-witnesses to the

robbery identified clothing corresponding to the SKU numbers on the

receipts as similar to clothing worn by the robbers.


    16
      Joshua’s counsel objected to Agent Johnson’s testimony on the
basis that it had not been established that the room was Joshua’s
“residence.”    Agent Johnson testified, however, that before
searching the room he “conducted several computer checks,”
consulted with other investigators, was informed by the owners of
the house that the room had recently been Joshua’s, and, finally
and perhaps most importantly, found letters in the room from Joshua
to his girlfriend, LeJuangela Jones.

                                  18
               5.   Conclusion

       The Government proved that Joshua Burton was seen in the

vicinity of the bank on the day of the robbery driving the car that

was later used in the robbery.                There was also testimony that

Quinton Carr was driving Joshua Burton’s Lexus around that same

time.       The Government introduced receipts found where Joshua had

recently been living;         those receipts corresponded to clothing and

items identified by eye-witnesses as similar to the clothing worn

by the robbers and a bag used by the robbers to carry fake bombs.

There    was    evidence     that    Wilton   Burton,    one    of    Joshua’s    co-

conspirators,       talked    about    planning   the    robbery      with   Joshua.

Finally, Wilton admitted at trial that he had told police that he

and Joshua were the men in the photos of the robbery taken by bank

cameras.       Wilton recanted that statement in the same breath, but

the jury was entitled to believe what he admitted at trial to have

been his earlier version.           The jury also could have relied, along

with    the    other   circumstantial     evidence,      on    Joshua’s      familial

connection      with   the   other    participants      in    the    robbery.     See

Williams-Hendricks, 805 F.2d at 503.

       Based on this evidence, a rational trier of fact could have

found beyond a reasonable doubt that the Government carried its

burden of proof as to Joshua Burton.

       B.     Quinton Carr

               1.   The blue Pontiac.

       Police found a blue Pontiac abandoned, with its engine still

running, in a car wash near the robbery scene.                 The key was in the


                                         19
ignition and the car showed no signs of having been hot wired.

Police found evidence in the car linking it to Quinton Carr,

including an automobile service contract in Carr’s name, Carr’s

medical card, and cards written to Carr by his girlfriend Rita

Gwen.       Ed Burton testified that he saw the car in the vicinity of

the bank both on the morning and the afternoon of the robbery.             See

discussion supra Part I.A.3.

       A police operator testified that she received a call shortly

after midnight on December 22 (the morning after the robbery),

apparently from Carr, reporting his car stolen. Although there was

some    confusion     about   the   interpretation   of    her    report,17   a

reasonable construction of her report was that Carr reported he had

last seen the car at his cousin’s apartment on December 5 but only

realized it had been stolen on December 21.              Christopher Spooner

testified that Wilton Burton told him Carr’s stolen car report was

false.        See   discussion   infra   Part   I.B.2.      Although   Carr’s

girlfriend Rita Gwen testified that the last time she had seen the

car was on December 9 or 10 parked in front of Christopher

Spooner’s house, she told the grand jury that she last saw the car

at Spooner’s as late as December 20.

               2.   Testimony of Christopher Spooner.

       Christopher Spooner is Asia Morgan’s husband.             Wilton Burton

regularly spent the night at their apartment.             Spooner testified

that Wilton spent the night at their apartment on December 20-21


       17
      The Government called the police operator’s supervisor, who
aided in interpreting the stolen car report.

                                      20
and that Wilton left with Carr on the morning of the 21st at 4:30

a.m. Spooner said Wilton and Quinton left in Quinton’s car, but he

did not actually see them getting into the car; he testified,

however, that Quinton’s car was parked in front of his apartment

building on the morning of December 21.

     Spooner testified that he had overheard Wilton and Quinton,

talking “about bank robberies” about two weeks before the actual

robbery:

     Q: Did they both say things in your presence that made
     you understand they were talking about a bank robbery?

     A:    Yes.18

On cross examination, Spooner stated that Wilton and Carr were

“generally speaking” about bank robberies and that they did not

refer specifically to the December 21 robbery.19

         Spooner said that Wilton had not told him that Carr was

involved in the bank robbery.     Wilton, however, did tell Spooner

that they had used Carr’s vehicle in the robbery and had then

abandoned it at a car wash.      Significantly, Wilton told Spooner

that Quinton Carr was going to call the police and report his car

stolen and that the report would be false.

            3.   Testimony of Rita Gwen.


    18
     Spooner also testified that Wilton tried to “bring guns” into
his apartment, but that Spooner asked him to remove them.
    19
      The court then made a finding that the Government had proved,
by a preponderance of the evidence, that there was a conspiracy
between Quinton Carr and Wilton Burton and that the statements made
by Wilton to Spooner were in furtherance of that conspiracy. See
Fed. R. Evid. 801(d)(2)(E). Carr’s counsel did not object to the
court’s ruling and does not raise it as error on appeal.

                                  21
       Rita Gwen, Carr’s girlfriend, testified that Carr spent the

night with her on December 20-21 and left very early on the morning

of December 21, the day of the robbery.        She said he picked her up

around noon that day and that he was driving a cream-colored Lexus.

Other witnesses testified that Joshua Burton drove a cream-colored

Lexus.       Carr took Gwen to pay bills and dropped her off around 1:00

p.m.        She saw Carr again around 3:00 p.m., when he returned to her

place, still driving the Lexus, but this time accompanied by Wilton

Burton.        Wilton apparently remained with her and Carr for the rest

of the day.          Gwen also testified that Carr, at some point that

evening, reported his car stolen; she could not specify whether he

called around 7:00 that evening or between 10 and 11:00 p.m.20      See

also discussion supra Part I.B.1.

                4.   Conclusion

       Our function in reviewing the sufficiency of the evidence is

not to determine “whether the trier of fact made the correct guilt

or innocence determination, but whether it made a rational decision

to convict or acquit.” United States v. Ornelas-Rodriguez, 12 F.3d

1339, 1344 (5th Cir. 1994), quoting Herrera v. Collins, 506 U.S.

390, 402 (1993).         Here, the principle is apposite that “[w]hile

each piece of evidence, viewed independently[,] may have been

susceptible of innocent interpretation . . . the jury reasonably

could have concluded that when examined in the aggregate, the

evidence sufficed to establish . . . guilt.” Ornelas-Rodriguez, 12


       20
      The police operator’s report indicates that the call came in
shortly after midnight. See supra Part I.B.1.

                                      22
F.3d at 1346. (emphasis added).           With that in mind, we find that

the evidence was sufficient for a rational trier of fact to find

Quinton Carr    guilty     beyond    a   reasonable    doubt     of   the   crimes

charged.

     On    appeal   Carr   argues    that     the   Government    presented    no

evidence that he agreed to participate in the robbery.                He contends

the evidence shows he was “merely associated” with members of the

conspiracy and only “aware” of the criminal plan, not that he took

part in it.    Carr also maintains that the jury could not infer from

the use of his car in the robbery, standing alone, that he allowed

the robbers to use it.       Finally, Carr argues that his stolen car

report does not allow the inference that he was aiding and abetting

the robbery;    even if the report was false, according to Carr, the

jury could, “at best,”      infer that Carr was only trying to protect

himself when he discovered the car had been used in a robbery.

     Carr would have us unduly curtail the “responsibility of the

trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts.”           Herrera, 506 U.S. at 401-02, quoting

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).                We decline to

do so.    A rational trier of fact could have found that the evidence

before it established far more than Carr’s “mere association” with

the members of the conspiracy.

         The jury reasonably could have found that the use of Carr’s

vehicle in the robbery, coupled with his sham stolen car report,

established that Carr was associated with the robbery, that he


                                         23
participated in it, and that he “sought by action to make the

venture succeed.”     See 18 U.S.C. § 2.         The jury could have found

this conclusion strengthened by Carr’s appearance, before and after

the robbery, in Joshua Burton’s Lexus.           Certainly there is nothing

illegal in Carr driving Joshua’s car on the day of the robbery, or

in his leaving early that morning with Wilton Burton, or in his

showing up with Wilton soon after the robbery;            but as coincidence

piles upon coincidence, a rational jury is entitled to find that

criminal activity may be afoot. See Ornelas-Rodriguez, 12 F.3d at

1346.

      Finally, a rational jury could have found from Christopher

Spooner’s testimony that Carr and Wilton Burton were planning the

bank robbery in question a mere two weeks before the robbery took

place.   While Spooner’s testimony was vague, the jury did not have

to rely solely on it to find that Carr participated in the

conspiracy.    The jury could also have considered Carr’s familial

and social relationships with the other members of the conspiracy,

and, most importantly, the series of “coincidences” that strongly

connected    Carr   and   his   vehicle   to    the   robbery   itself.     See

Williams-Hendricks, 805 F.2d at 503.

      In sum, we find that a rational jury could have found beyond

a reasonable doubt that the Government carried its burden of proof

as to Carr.

II.   SENTENCING GUIDELINES

      Both   Appellants    argue   that   the    district   court   erred   in

applying a six-point increase to their offense levels pursuant to


                                     24
U.S.   Sentencing    Guidelines     Manual    §    2B3.1(b)(2)(B)(1995)      for

“otherwise using” a firearm.           We review the district court’s

application and legal interpretation of the Sentencing Guidelines

de novo,      United States v. Domino, 62 F.3d 716, 719 (5th Cir.

1995), and its findings of fact for clear error.                United States v.

Hooker, 997 F.2d 67, 75 (5th Cir. 1993).

       The Sentencing Guidelines define “otherwise used” as conduct

that “did not amount to the discharge of a firearm but was more

than brandishing, displaying, or possessing a firearm or other

dangerous weapon.”        U.S.S.G. § 1B1.1, comment. (n.1(g)).           We have

held that making threats while brandishing a firearm constitutes

“otherwise using” a firearm.        United States v. DeLaRosa, 911 F.2d

985, 993 (5th Cir. 1990).

       The “relevant conduct” to which we refer in determining Joshua

Burton’s      Guideline    range   includes       “all   acts    and   omissions

committed, aided, abetted, counseled, commanded, induced, procured,

or willfully caused by the defendant.”            U.S.S.G. § 1B1.3(a)(1)(A).

Testimony at trial showed that the robbers waved guns around during

the robbery and that at least one of them threatened to kill bank

employees if they did not cooperate.          The district court found the

evidence sufficient to show that Joshua was one of the robbers who

entered the bank and that, even if Joshua was not the robber who

threatened the bank tellers’ lives, such conduct was reasonably

foreseeable given the nature of the offense.21              We find that the

         21
         See U.S.S.G. § 1B1.3(a)(1)(B).    That the conduct was
“reasonably foreseeable” and in furtherance of the robbery would
provide an alternate basis for attributing the conduct to Joshua,

                                      25
district court’s findings of fact were not clearly erroneous.

Further, we find that the district court correctly interpreted the

Sentencing Guidelines in applying the six-level increase to Joshua

Burton’s offense level.22

     Regarding Quinton Carr, the “relevant conduct” to which we

refer in determining his Guideline range is, “all reasonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B).23

The district court found that, given the nature of bank robbery,

Carr could have “reasonably foreseen” that a weapon would be used

during the robbery.        Carr argues that the district court’s finding

that he should have “reasonably foreseen” the use of a firearm was

clearly       erroneous;    he   also   argues   that   the   district   court

misapplied the Guidelines by relying on the nature of the offense

to determine “reasonable foreseeability”.           We disagree.

     The Commentary to § 1B1.3 of the Guidelines indicates that in



even if he were not the robber who made the threats. In any case,
the district court’s finding that Joshua did make threats during
the robbery is not clearly erroneous.
         22
       Joshua argues that his conduct warranted only a five-level
increase under U.S.S.G. § 2B3.1(b)(2)(C) for “brandishing.” The
Guidelines define “brandishing” to mean that “the weapon was
pointed or waved about, or displayed in a threatening manner.”
U.S.S.G. § 1B1.1, comment. (n.1(c)). The combination of threats
with the display of firearms, however, has been found sufficient to
constitute “otherwise using” a firearm. See DeLaRosa, 911 F.2d at
993.
    23
     We make a “reasonable foreseeability” determination regarding
Carr because in determining his Guideline range we must refer to
the conduct of others. Such a determination was not necessary for
Joshua since Joshua personally undertook the conduct that
determined his range. See U.S.S.G. § 1B1.3, comment. (n.2).

                                        26
determining the scope of the “jointly undertaken criminal activity”

the    court      may     consider     “any   explicit    agreement      or   implicit

agreement fairly inferred from the conduct of the defendant and

others.”          U.S.S.G.      §    1B1.3,   comment.    (n.2).        Further,   the

Illustrations under § 1B1.3 posit a situation in which “Defendant

C” is the getaway driver in an armed bank robbery in which a teller

is injured:

       Defendant C is accountable for the injury to the teller
       under subsection (a)(1)(B) because the assault on the
       teller was in furtherance of the jointly undertaken
       criminal activity (the robbery) and was reasonably
       foreseeable in connection with that criminal activity
       (given the nature of the offense).

U.S.S.G.     §    1B1.3,      comment.     (illustration    (b)(1)).          (emphasis

added).      See also United States v. Guerrero, 5 F.3d 868, 871 n.7

(5th Cir. 1993).

       We find that the district court reasonably inferred from the

evidence the scope of the criminal activity to which Carr agreed.

The    district       court’s       determination   that,   given     such    criminal

activity, Carr should have reasonably foreseen the use of a firearm

was not clearly erroneous.                 Further, we find that the district

court’s reliance on the nature of the offense to determine whether

the    use   of      a    firearm    was   reasonably    foreseeable      was    not   a

misapplication of the Guidelines.

       We therefore affirm the district court’s application of a six-

level increase to the offense levels of both Appellants.

III.    CONCLUSION

       For     the       foregoing    reasons,     we   AFFIRM   both    Appellants’

convictions and sentences.



                                              27
