                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         March 28, 2003

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk
                       _____________________

                            No. 01-21296
                       _____________________


     UNITED STATES OF AMERICA

                          Plaintiff - Appellee

          v.


     WALTER LYNELL STAPLETON, WAYLAND EARL CRISWELL

                          Defendants - Appellants

_________________________________________________________________

          Appeal from the United States District Court
               for the Southern District of Texas

                        No. H-01-CR-145-3
_________________________________________________________________

Before KING, Chief Judge, and REAVLEY and STEWART, Circuit
Judges.

PER CURIAM:*

     After a jury trial resulting in guilty verdicts for each of

the two defendant-appellants, judgments of conviction for aiding

and abetting in the commission of bank robbery were entered by the

district court.   On appeal, we affirm the judgments of conviction

and sentences for both defendants.

     *
        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that this opinion should not be published and is not precedent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.
                                         I.
                       FACTUAL and PROCEDURAL BACKGROUND
     Along with four other individuals – Toniea Thompson, Charles

Whiting, Zebadiah Comb, and Sidney Tatum – the two defendant-

appellants, Wayland Earl Criswell and Walter Lynell Stapleton, were

named    in   an   indictment      returned    on   February     22,    2001.     The

indictment charged that on April 3, 1997, the six co-defendants

took, by force, violence and intimidation, $39,925 of federally

insured deposits         from   the    First   State     Bank   of   Livingston       in
Shepard, Texas (the “Shepard bank”) in violation of 18 U.S.C.

§§ 2113(a) & (2) (“bank robbery”).1                 Thompson, Whiting and Comb

pled guilty and, pursuant to their plea and cooperation agreements,

testified on behalf of the government in the case against Criswell

and Stapleton.          At the time of trial, all three of these co-

defendants      were    awaiting      sentence;     co-defendant       Tatum    was    a

fugitive.

     The      undisputed    facts     presented     at   trial   reveal    that       at

approximately 2:55 p.m., on April 3, 1997, four African-American

adults wearing black bandanna masks, caps of some sort, work

gloves, long-sleeve windbreakers, dark pants and running shoes,



     1
          In addition to the bank robbery count (count 1), which
all co-defendants were charged with, Toniea Thompson was charged
(in count 2) with possession of a firearm in furtherance of the
bank robbery in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and
Whiting, Stapleton and Comb were charged (in count 3) with
possession of a firearm in furtherance of bank robbery in
violation of 18 U.S.C. § 924(c)(1)(A)(i). The district court
granted Stapleton’s unopposed motion for judgment of acquittal on
count 3. Count 1 is thus the only count relevant to this appeal.

                                          2
entered the Shepard bank, a member of the Federal Deposit Insurance

Corporation, and fired two shots at the bank camera near the doors.

While two of the robbers held the customers inside the bank at

gunpoint, the remaining two leapt over the counter behind the

teller area and emptied the money contained in the drawers into

black duffle bags.   After approximately three minutes, the four

individuals exited the bank and drove off in a stolen Suburban that

had been left running by the bank entrance.     A clip of the bank

video-tape of the robbery introduced into evidence at trial shows

four disguised persons were involved in the bank robbery.

     At trial, largely through the testimony of co-defendants

Whiting, Thompson and Comb, and through the testimony of Bryan

Thorn, a friend of several of the co-defendants who was convicted

of participating in a bank robbery in Dayton, Texas (with Whiting,

Thompson and, allegedly, Criswell) that occurred a month after the

Shepard bank robbery, the government alleged that Criswell came up

with the idea to rob the bank, surveyed the bank with Thompson, and

helped recruit several members of the conspiracy.     Further, the

government alleged that, on the date in question, Criswell (with

Tatum) drove his own car to the bank ahead of Stapleton, Whiting,

Thompson and Comb and was responsible for watching the perimeter of

the bank during the robbery.     As alleged, Stapleton, Whiting,

Thompson and Comb went into the bank, and while Thompson and Comb

held the customers at gunpoint, Stapleton and Whiting jumped over

the teller counter and collected the money.   All six co-defendants

later met at Criswell’s house to split the money – Stapleton,

                                3
Whiting, Thompson and Comb allegedly received between $6-11,000

each, while Criswell and Tatum allegedly received between $2-4,000

each.

     On August 16, 2001, after a four-day jury trial, the jury

returned a verdict of guilty for both defendants.                 Judgments of

conviction were thereafter entered by the district court.                     The

judgments sentenced both defendants to 140-month imprisonment terms

and to 3-year supervised release terms.          The defendants were also

ordered   to   pay   $35,925   in    restitution     and   $100    in   special

assessment.    From these judgments, the defendants raise several

points of alleged error.

                                     II.
                        ANALYSIS OF ALLEGED ERROR
     A.     Prosecutorial Misconduct

     Both   Stapleton    and   Criswell     allege   several      instances   of

prosecutorial misconduct. Specifically, they contend that improper

arguments by the Assistant United States Attorneys (“AUSA”) Michael

Wynne and Jay Hileman prejudiced their substantial rights.

     On review of a charge of prosecutorial misconduct, this court

follows a two-step test, under which it must initially decide

whether the prosecutor made an improper remark.            United States v.

Fields, 72 F.3d 1200, 1207 (5th Cir. 1996).           If it concludes that

an improper remark was made, it must then consider whether the

improper remark “taken as a whole in the context of the entire

case,   prejudicially     affected    the    substantial    rights      of    the


                                      4
defendant.” United States v. Munoz, 150 F.3d 401, 414-15 (5th Cir.

1998) (internal quotation omitted).             In resolving this matter, the

court     assesses   several      factors:      (1)   the     magnitude       of    the

statement’s      prejudice,      (2)    the     effect       of    any   cautionary

instructions given, and (3) the strength of the evidence of the

defendant’s guilt.        Id. (citing United States v. Tomblin, 46 F.3d

1369, 1389 (5th Cir. 1995)).

            1.    AUSA Hileman’s allegedly improper comments

     Neither defendant objected to Hileman’s comments at trial; the

alleged error is thus reviewed for plain error.                    United States v.

Taylor, 210 F.3d 311, 318 (5th Cir. 2000).                  “An error is plain if

it affects the defendant’s substantial rights.” Id. at 311 (citing

United States v. Goff, 847 F.2d 149, 162 (5th Cir. 1988).                  Further,

“under    this   standard,      [the   court]      should    not    exercise       [its]

discretion to correct a forfeited error unless the error ‘seriously

affects    the   fairness,      integrity     or   public     reputation      of    the

proceedings.’” United States v. Smith, 203 F.3d 884, 888 (5th Cir.

2000) (quoting United States v. Gaudin, 515 U.S. 506, 527 (1995)).

     To determine if plain error occurred, the court must view the

statements in the context of the entire record.                    United States v.

Young, 470 U.S. 1, 12 (1985).          Taken in context, the statements by

AUSA Hileman relating to the trial testimony of Thompson are not

improper and do not roam beyond the record because the statements

specifically     relate    to    evidence     that    was     adduced    at    trial.



                                         5
Hileman’s statements are thus not improper, much less “clear” or

“obvious” errors.   United States v. Burton, 126 F.3d 666, 674 (5th

Cir. 1997).

          2.   Wynne’s allegedly improper comments

     The defendants also contend that improper comments made by

AUSA Wynne during his closing argument were designed to cloak his

witnesses in the protective mantle of the United States government.

     The defendants objected to the allegedly improper comments by

Wynne;2 we thus apply harmless error review, under which, reversal

is appropriate if the prosecutor’s remarks exceeded permissible

bounds and the error violated the defendants’ substantial rights.

Young, 470 U.S. at 12 n.10; United States v. Gallardo-Trapero, 185

F.3d 307, 320 (5th Cir. 1999).

     Taken in context, Wynne’s initial comment merely responded to

the defendants’ accusations that he dumped untrustworthy witnesses

on AUSA Hileman in favor of working only with trustworthy witnesses

and was not improper.

     Assuming Wynne’s further comment that he stood behind every

witness that testified is improper in that he “invoked the aegis of

a governmental imprimatur” to bolster the government’s witnesses,

id., taken in context, the remark did not prejudicially affect the

substantial rights of Stapleton and Criswell.        Given what the

     2
          Only Stapleton objected to Wynne’s comments. However,
before trial, the district court ruled that where both defendants
had an identity of interest, the court would deem objections made
by one to apply to both defendants.

                                 6
government refers to as the “strident advocacy” on both sides of

this case, the single comment by Wynne was partially overshadowed

by the defense allegations that Wynne was disassociating himself

from the “untrustworthy” witnesses.              United States v. Fields, 72

F.3d       1200,   1207   (5th   Cir.   1996).     Further,   the   cautionary

instructions given here went far in mitigating any prejudicial

effect because the instructions were made specifically regarding

this comment and directly after the comment was made.3              See, e.g.,

United States v. Duffaut, 314 F.3d 203, 210 (5th Cir. 2002).

Finally, the strength of the evidence of guilt here is strong.

That the evidence (aside from the testimony of participating

witnesses) is largely circumstantial does not change this fact.

The trial consumed four days and involved over twenty witnesses.

In addition to the testimony of the co-defendants and Thorn, the

government proffered corroborating testimony from bank employees,

witnesses, and several law enforcement agents who were involved in

the investigation of the robbery. We conclude that the defendants’


       3
        The district court sustained Stapleton’s objection as to
this comment, and immediately instructed the jury in the
following manner:

       Ladies and gentlemen. It is up to you to decide
       whether you credit the testimony of any one or all of
       the witnesses or any part of the testimony. What the
       government thinks is completely not your concern. His
       comment is stricken, ladies and gentlemen, and the
       Government attorney is instructed that your views about
       the testimony, in terms of your personal beliefs or
       whatever, are not to be discussed.


                                         7
substantive rights were not prejudiced by Wynne’s comments.                 See,

e.g., Gallardo-Trapero, 185 F.3d at 323.

     B.    Sufficiency of the Evidence to Sustain the Jury Verdict

           against Stapleton

     Stapleton      contends   that   the    evidence    is    insufficient   to
sustain   the    verdict   against    him    because    no    non-participating
witness identified him at the scene and no physical evidence placed
him near the bank.       Regarding his sufficiency challenge, Stapleton
preserved this court’s usual standard of review for such claims by
moving for a judgment of acquittal at the close of the evidence.
FED. R. CRIM. P. 29(a); United States v. Pankhurst, 118 F.3d 345, 351
(1997).    Therefore, this court must 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. 1996).
     To   convict    a   defendant    of    bank   robbery    under   18   U.S.C.
§ 2113(a), the government must prove that (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 abetting, the government must show
that the defendant (1) associated with the criminal venture, (2)

                                       8
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).
     From the totality of the evidence, a jury could reasonably
conclude that Stapleton was the fourth individual who entered the
bank with Whiting, Thompson and Comb.   While no non-participating
witnesses could positively identify Stapleton as being one of the
four persons who entered the bank to rob it (likely because these
four individuals carefully concealed their identity behind caps and
bandannas),   Stapleton’s   participation   in   the   robbery   was
established by the testimony of co-defendants Whiting, Thompson and
Comb and by Thorn.   Each identified him as the fourth person who
entered the bank and as one of the persons who jumped over the
counter to retrieve the money.   He was also identified by his co-
defendants as one of the persons who purchased bandannas, gloves
and other items necessary for the crime at the grocery store.    We
must “accept credibility choices that support the jury’s verdict
and may not reweigh the evidence.”   United States v. Guerrero, 169
F.3d 933, 939 (5th Cir. 1999).
     C.   Pre-Indictment Delay
     In the district court, Stapleton filed a motion to dismiss the
indictment due to a pre-indictment delay of four years between the
date of the offense, April 3, 1997, and the date the indictment was
filed, February 22, 2001.
     On review, we uphold the district court’s factual findings
that no actual prejudice resulted from the delay and that no bad
faith purpose on the part of the government was manifest in the


                                 9
delay as not clearly erroneous.                  See, e.g., United States v.
Jimenez, 256 F.3d 330, 345 (5th Cir. 2001) (reviewing the district
court’s factual finding of prejudice for clear error and finding no
due process violation in a five-year pre-indictment delay); United
States v. Crouch, 84 F.3d 1497, 1500 (5th Cir. 1996) (en banc).
     D.     Minor or Minimal Participant Reduction
     United States Sentencing Guidelines Manual (“USSG”) § 3B1.2,
entitled “Mitigating Role” controls reductions in a defendant’s
base offense        level   for    minimal     or    minor   participation    in       an
offense.    USSG § 3B1.2(a) states that “[i]f the defendant was a
minimal    participant      in     any   criminal     activity,   decrease        by   4
levels.”    USSG § 3B1.2(b) states that “[i]f the defendant was a
minor participant in any criminal activity, decrease by 2 levels.”
The guidelines define “minimal” participant as any participant
“whose role is less culpable than the average participant” and “is
plainly among the least culpable of those involved in the conduct
of the group.”         UNITED STATES SENTENCING GUIDELINES § 3B1.2, cmt. 4
(2001).       The    guidelines      define      “minor”     participant     as    any
participant     “whose      role    is    less      culpable   than   the    average
participant but whose role could not be described as minimal.”                     Id.
cmt. 5. The question of participation status is a factual question
reviewable by this court under the clearly erroneous standard.
United States v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995).
     We find sufficient evidence from which the district court
could conclude that Stapleton did not qualify as a “minor” or
“minimal” participant.           In addition to evidence that Stapleton was
one of the four individuals who actually entered the bank, then


                                          10
jumped over the counter, stuffed money in duffel bags and fled the
scene with the money, the evidence reflects that he, Whiting,
Thompson and Comb were paid substantially more money than the other
two co-defendants.         See, e.g., United States v. Leal Mendoza, 281
F.3d 473, 477 (5th Cir. 2002); United States v. Tremelling, 43 F.3d
148, 153 (5th Cir. 1995).
       E.     Extraneous Offense Evidence
       Pre-trial, Criswell filed a motion in limine requesting that
the government “approach the bench to obtain a ruling on the
admissibility or permissibility” before introducing (1) evidence of
Criswell’s prior criminal convictions, (2) evidence of his prior
wrongs,      crimes   or   acts,   (3)   evidence      that   he   had       ever   been
incarcerated, and (4) evidence that he had ever used, possessed,
bought or sold drugs.          The district court preliminarily granted
these requests.       At the pre-trial conference, Criswell’s counsel
also    specifically       requested     that   Whiting       be   precluded        from
testifying that the house where the six co-defendants met after the
robbery was “Wayland’s dope house.”                 While the district court
stated that it recognized this as a “sensitive point,” it did not
make a preliminary ruling on the issue.
       Criswell argues that the government violated FED. R. EVID. 402,
403 and 404(b) in offering “irrelevant, prejudicial, and plainly
inadmissible” evidence in violation of the district court’s order.
       The    district     court   struck     Whiting’s   testimony          regarding

Criswell’s “crack house” and testimony regarding Criswell being on

parole.       In   both    instances,    the    jury    was    given     a    specific

instruction regarding the improper nature of the evidence proffered

                                         11
by the government and was instructed that it could not consider the

evidence in making their verdict determination.    As the references

to Criswell’s “crack house” and Criswell being on parole were the

only references of their kind during the entire four-day trial and

were not the subject of further testimony or argument during trial,

we find that the district court’s instructions cured any resulting

prejudice.   A new trial is not warranted.

       Regarding the government’s use of Rule 404(b) evidence of

Criswell’s involvement in the Dayton bank robbery, because Criswell

failed to object to Thorn’s testimony or the government’s use of

this evidence at trial, the district court’s admission of this

evidence is subject to plain-error review.     Duffaut, 314 F.3d at

209.

       This court has established a two-part test to determine the

admissibility of Rule 404(b) evidence, under which the extrinsic

offense evidence must (1) be relevant to an issue other than the

defendant’s character and (2) must possess probative value which is

not substantially outweighed by undue prejudice.   United States v.

Bentley-Smith, 2 F.3d 1368, 1377 & n.11 (5th Cir. 1993).   As to the

first element, Criswell’s plea of not guilty and the evidence

adduced at trial placed Criswell’s identity at issue.         Thus,

evidence of Criswell’s participation in a similar crime (and

evidence that he played a like role in this crime) went to prove

identity, not to prove the character of Criswell in order to show

action in conformity therewith.       See Duffaut, 314 F.3d at 209

                                 12
(“Similarity of the extrinsic offense to the offense charged is the

standard by which relevancy is measured under Rule 404(b).”).

Regarding the second element, as this court “consistently ha[s]

held that evidence of a defendant’s prior conviction for a similar

crime is   more   probative   than    prejudicial,”    we     hold   that   the

admission of the Rule 404(b) evidence here was not improper.

Taylor, 210 F.3d at 318; see also         United States v. Leahy, 82 F.3d

624, 637 (5th Cir. 1996) (noting that although some danger of

prejudice is always present, “exclusion of extrinsic evidence based

on   its   prejudicial   effect      should    occur   only     sparingly”).

Furthermore, in its charge to the jury, the court instructed that

the jury was “here to decide whether the government has proved

beyond a reasonable doubt that the defendant is guilty of the crime

charged,” and that “[t]he defendant is not on trial for any act,

conduct, or offense not alleged in the indictment.”              This charge

mitigated any prejudicial effect of the evidence of Criswell’s

involvement in the Dayton bank robbery.

     F.    Cumulative Error

     Finally, Criswell argues that the cumulative effect of error

here requires a new trial.        Although Criswell does not point to

errors that should be aggregated, even assuming that error is

manifest in his references to prosecutorial misconduct and the

district court’s admission of extraneous offense evidence, these

few instances of misconduct, taken together, simply do not yield a



                                     13
denial of the constitutional right to a fair trial.             See, e.g.,

United States v. Canales, 744 F.2d 413, 430-31 (5th Cir. 1984).

                             CONCLUSION

     Upon   careful   consideration    of   this   case,   we   AFFIRM   the

judgments of conviction and sentences of the defendants.




                                  14
