     Case: 08-40406     Document: 00511059611          Page: 1    Date Filed: 03/23/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 23, 2010

                                       No. 08-40406                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee
v.

KEELON JMAR SENEGAL; BRODERICK WADE YORK,

                                                   Defendants–Appellants




                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 3:06-cr-0008-2


Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
        Keelon Jmar Senegal and Broderick Wade York appeal their convictions
for eight separate counts stemming from a botched bank robbery and a
subsequent attempt to murder a witness, which resulted in multiple consecutive
life sentences for each of them. They allege various errors, including a Brady
violation, improper admission of hearsay statements, insufficiency of the
evidence, partiality of the trial judge, and sentencing violations.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 08-40406   Document: 00511059611    Page: 2   Date Filed: 03/23/2010

                                  No. 08-40406

        For the reasons discussed below, we affirm Senegal and York’s convictions
on all counts.
             I. FACTUAL AND PROCEDURAL BACKGROUND
A.      Factual Background
        1.    The University Federal Credit Union Robbery
        In July 2005, Arthur Winn and John Franklin successfully robbed the
Coastal County Credit Union. Winn and Franklin decided to try their luck
again, and set their sights on the University Federal Credit Union (“UFCU”) in
Galveston, Texas. They recruited Senegal, York, and York’s cousin, DeWayne
Lekeith “Ki-Ki” Joseph, to assist with the heist, although Joseph later backed
out of the scheme.
        The four decided that Winn would steal two cars and serve as the getaway
driver, Franklin would hold open the door to the bank, and Senegal and York
would enter the bank to carry out the robbery. In August 2005, the four drove
a stolen Chevrolet Suburban to the UFCU and commenced the robbery according
to their assigned roles. Senegal and York obtained almost $10,000 from the
bank tellers, and then ran back to the Suburban.
        Once inside the Suburban, a dye pack that one of the tellers had slipped
into the money bag exploded. At that moment, the Suburban stopped running.
The four abandoned the Suburban and continued their escape in a stolen Buick
that Winn had parked nearby as a backup getaway vehicle.
        Because they feared that someone had followed them, they decided to ditch
the Buick and continue fleeing in Franklin’s personal Chevrolet Impala. The
four parked the Buick close to where Franklin had left his car, and waited for
him to retrieve it and return for them. Franklin, still scared that someone had
followed him, never picked up the others.
        While Winn, Senegal, and York waited for Franklin, Winn saw Tony
Mason drive past. Winn, who knew Mason from his days in a street gang,

                                        2
   Case: 08-40406   Document: 00511059611     Page: 3   Date Filed: 03/23/2010

                                 No. 08-40406

flagged Mason, and Mason agreed to drive the three to Winn’s mother’s house.
While en route, York began to discuss the botched robbery, and Winn quickly
instructed him to be quiet. Upon arriving at Winn’s mother’s house, Senegal
gave Mason a handful of money from the UFCU robbery.
      2.    Senegal and York’s Possession of a Lorcin Pistol
      A few days after the UFCU robbery, Senegal told his cousin, Jasmine
Epps, about his involvement. Around this time, Epps witnessed Senegal with
a silver gun while visiting Senegal’s girlfriend, Tesse Rolland. Epps saw Senegal
and Rolland playing with the firearm before Rolland took the gun into her
bedroom. Rolland testified to the grand jury that she saw York give the gun to
Senegal. At trial, however, Rolland recanted and testified that she knew nothing
about the weapon.
      Police officers seized the firearm while arresting Epps at Rolland’s
apartment sometime later for an unrelated crime, and identified the weapon as
a Lorcin pistol. Upon her release, Epps called Senegal at Rolland’s apartment,
at which point Senegal cursed and shouted at Epps because he did not want her
to tell the police about his participation in the UFCU robbery. Epps later
identified the recovered Lorcin pistol as the same one she observed Senegal and
Rolland playing with shortly after the UFCU robbery.
      3.    The Attempted Murder of Tony Mason
      York began to fear that the police would associate him with the UFCU
robbery and decided to seek help from Joseph. York discussed the botched
robbery with Joseph, detailing the various ways he believed the police could tie
him and the others to the crime. Later, Senegal and York heard that the police
had arrested Mason for traffic warrants. Fearing that Mason would implicate
them in the UFCU robbery, Senegal and York contacted Joseph again to discuss
killing Mason.



                                       3
   Case: 08-40406     Document: 00511059611     Page: 4    Date Filed: 03/23/2010

                                  No. 08-40406

      In late September 2005, Joseph, Senegal, and York drove a stolen Jeep
Cherokee while searching for drug dealers to rob. According to Joseph, at some
point during the drive, York started to get upset with him. Joseph asked that
the two let him out of the Jeep, and Senegal and York complied.
      After leaving Joseph, Senegal and York drove to Mason’s house, donning
bandanas over their faces. Senegal, with his gun drawn, approached Mason
while Mason worked on his car. When he attempted to fire, however, his gun
jammed. York decided to try with his weapon, and successfully shot Mason once.
Mason fled into the courtyard of his apartment building, but fell after a short
distance. York approached Mason to shoot him a second time, but his gun also
jammed before he could fire another round. Mason stood up and continued his
escape, and eventually the paramedics found him. Mason remained in a coma
for nearly a month, but survived.
      4.    The Robbery of Adrian DeVault
      Later that evening, Senegal and York approached Adrian DeVault while
DeVault sat in his car in an apartment parking lot. They pulled their weapons
and demanded DeVault’s valuables, securing a chain, a black Movado watch, a
white gold diamond bracelet, and about $350 in cash.           They also ordered
DeVault out of the car and tried to steal it, but failed when they could not get the
car into gear. DeVault returned fifteen minutes later to find his car where he
had left it, still running with the keys in the ignition. DeVault drove back to his
house, and upon arrival, found a .38 revolver that one of the robbers had left
inside the vehicle.
      DeVault did not report the robbery to the police, but a detective contacted
him about a month later. DeVault corroborated the detective’s account of the
robbery, and turned over the firearm. At trial, Winn identified the firearm as
the same one that York carried during the UFCU robbery, and a Texas



                                         4
   Case: 08-40406      Document: 00511059611         Page: 5     Date Filed: 03/23/2010

                                      No. 08-40406

Department of Public Safety expert testified that the bullet extracted from
Mason’s body matched the firearm recovered from DeVault’s car.
       The morning after the Mason shooting and the DeVault robbery, York met
with Joseph. During their conversation, York reported the successful robbery
and the unsuccessful attempt on Mason’s life. York also showed Joseph the
black Movado watch they had stolen.
       A few days after the robbery, one of the robbers pawned a black Movado
watch and a gold bracelet. Later, DeVault accompanied a law enforcement
officer to the pawn shop and identified the pawned items as those stolen from
him. An employee of the pawn shop produced pawn slips for the items with
Senegal’s signature.
       Some time after the Mason shooting, Winn and York ended up in the same
jail cell.1 While there, York discussed the Mason shooting with Winn in great
detail, and stated that he shot Mason with the same .38 revolver he had used in
the UFCU robbery. A few days after the initial conversation, York told Winn
about the DeVault robbery, describing their failure to steal the car and how they
inadvertently left a gun in the vehicle.
       5.     The Texas City Arrest of York and Joseph
       In early October 2005, Texas City Police officers arrested York and Joseph
in a stolen Buick.2 Inside the car, officers found a .357 bulldog snub nose
revolver that belonged to York, and a Colt .45 firearm that belonged to Senegal.
At trial, Joseph identified Senegal’s Colt .45 as the same weapon that jammed
during the unsuccessful attempt on Mason’s life.




       1
       It is not clear from the record why the two were arrested or how they came to be in
the same cell.
       2
         Joseph testified that Senegal accompanied him and York the night of their Texas City
arrest, but evaded capture by the authorities.

                                             5
     Case: 08-40406   Document: 00511059611     Page: 6    Date Filed: 03/23/2010

                                   No. 08-40406

B.      Procedural Background
        A federal grand jury charged Senegal and York with eight counts. These
counts included (1) conspiracy to commit bank robbery in violation of 18 U.S.C.
§§ 371 and 2113(a), (d); (2) aiding and abetting each other in robbing a bank by
force and violence in violation of 18 U.S.C. §§ 2113(a), (d), and 2; (3) aiding and
abetting each other in carrying, using, and brandishing one or more firearms
during and in relationship to a crime of violence—bank robbery—in violation of
18 U.S.C. §§ 924(c)(1)(A) and 2; (4) aiding and abetting each other in possessing
a Lorcin firearm while both were felons in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(4), (e), and 2; (5) conspiracy to tamper with a witness by attempting to kill
him in violation of 18 U.S.C. § 1512(k); (6) aiding and abetting each other in an
attempt to kill a witness with the intent to prevent the communication by the
witness to law enforcement relating to the possible commission of a federal
offense in violation of 18 U.S.C. §§ 1512(a)(1)(C) and 2; (7) aiding and abetting
each other in carrying, using, and brandishing a firearm during and in
relationship to a crime of violence—tampering with a witness—in violation of 18
U.S.C. §§ 924(c)(1)(A) and 2; and (8) aiding and abetting each other in possessing
a .38 special caliber pistol while both were felons in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), (e), and 2.
        Senegal and York pled not guilty and proceeded to a joint trial. The
Government introduced the testimony of Winn and Franklin, who both pled
guilty and agreed to cooperate; Joseph; Mason, who identified Senegal as one of
his assailants; Epps; Rolland; one of the tellers working at the UFCU on the day
of the robbery; a landscape supervisor who followed the four after the UFCU
robbery; DeVault; an employee of the pawn shop whom Senegal encountered
when selling the stolen goods from the robbery; an expert who opined that the
bullet recovered from Mason’s body matched the gun left in DeVault’s car;
security photos from the UFCU robbery; and DNA evidence linking articles of

                                         6
   Case: 08-40406        Document: 00511059611         Page: 7      Date Filed: 03/23/2010

                                        No. 08-40406

clothing left in the vehicles used in the UFCU robbery to Senegal and York.
Senegal and York asserted that not a single witness told the truth, and raised
various objections to the Government’s evidence implicating them in Mason’s
shooting.
       1.       Objections to Winn’s Testimony
       Before Winn testified, the district court heard arguments outside the
presence of the jury to ascertain the substance of Winn’s testimony regarding the
conversations he had with York while in jail. Senegal argued that allowing
Winn to testify would violate Senegal’s right to confront York under Bruton v.
United States, 391 U.S. 123 (1968). 3 The district court overruled Senegal’s
objection, finding that the statements were “integral to and a part of the entire
conspiracy,” and were thus covered by Federal Rule of Evidence 801(d)(2)(E).4
       Once the jury returned, Winn testified that York stated that when the
police arrested him and Joseph in Texas City, he possessed several firearms.
This information went beyond Winn’s proffer outside the presence of the jury.
Senegal and York immediately moved for a mistrial, arguing that Winn’s
statement about the weapons alluded to evidence of other crimes, and that the
Government violated Federal Rule of Evidence 404(b) by not disclosing their
intent to introduce this testimony. The district court denied the motion.
       2.       Objections to Joseph’s Testimony
       Senegal and York also vigorously objected to the testimony of Joseph in its
entirety. The Government did not disclose its intent to call Joseph as a witness
until three days before trial.            During Joseph’s direct examination, the
Government asked him about his role as a paid informant with the Federal


       3
        Bruton held that a codefendant’s confession that implicated a defendant at a joint trial
violated the defendant’s Sixth Amendment Confrontation Clause right, and constituted
reversible error. 391 U.S. at 136–37.
       4
           Senegal does not appeal this ruling on Bruton grounds.

                                               7
   Case: 08-40406   Document: 00511059611      Page: 8    Date Filed: 03/23/2010

                                  No. 08-40406

Bureau of Investigation (“FBI”). Joseph responded that he had cooperated with
the FBI as an undercover informant since his Texas City arrest two years
earlier, and that the FBI paid him approximately $1,500 for his work on matters
not related to Senegal and York’s case. Senegal and York immediately objected,
and the district court heard arguments outside the presence of the jury.
      Senegal and York argued that they had inquired about whether the
Government had made any agreements with any of their witnesses, and that the
Government had not disclosed Joseph’s work for the FBI. The Government
responded that it had no agreement with Joseph, and that although Joseph had
worked for the FBI for two years, he had not provided any information for
compensation in Senegal and York’s case.
      The FBI case agent for whom Joseph worked informed the district court
that (1) Joseph had provided information as to narcotics trafficking and violent
street gang activity; (2) Joseph participated in routine, ongoing investigations;
(3) the FBI had made no specific promises to Joseph regarding mitigation of
sentencing or dropping of charges that would suggest a compromise of
impartiality; (4) most of the money paid to Joseph went to buying a cell phone
so that FBI agents could keep in touch with him, and the rest went to financing
Joseph’s controlled purchases; (5) Joseph had not worked on any case related to
any of the parties or witnesses who had testified for the Government in Senegal
and York’s case; and (6) Joseph had made no offer to “adjust or alter, modify, add
to or delete from any testimony regarding facts about which he ha[d] personal
knowledge in order to secure a conviction of any kind.”
      In response, Senegal and York requested the financial records
documenting Joseph’s compensation from the Government. The district court
denied this request, stating that Senegal and York could question Joseph about
his finances on cross-examination. Finding that Senegal and York suffered no
undue prejudice from the Government’s late disclosure of Joseph’s financial

                                        8
   Case: 08-40406     Document: 00511059611       Page: 9    Date Filed: 03/23/2010

                                    No. 08-40406

relationship with the FBI, the district court permitted Joseph to testify. When
Joseph testified about the Texas City arrest, Senegal and York objected again,
arguing that the Government had not given them prior notice as to that portion
of Joseph’s testimony. The district court overruled the objection.
      3.     Actions of the District Court
      Mason testified at trial, and although he identified Senegal as one of his
assailants, he could not identify the other attacker.            In response to this
testimony, Senegal and York called the officer who questioned Mason while
paramedics tended to his gunshot wound. The officer testified that Mason, while
being treated, stated that he did not know who shot him.
      On cross-examination, the officer testified as to Mason’s obvious extreme
pain. After the Government concluded its cross-examination, the district court
judge asked the officer whether gunshot wound victims suffer from shock that
affects their perception and ability to communicate. The officer responded “I’m
assuming it can, yes sir.” Mid-way through the trial, the district court judge also
stated to the jury “I’ve never had a hung jury in 17 years and you ain’t going to
be the first.”
      4.     Sentencing
      Three days later, at the end of a six-day trial, the jury returned a guilty
verdict against both Senegal and York on all eight counts. Senegal and York
both received (1) 60 months for Count 1; (2) 300 months for Count 2; (3) life for
Count 3; (4) 240 months for Count 5; (5) 240 months for Count 6; and (6) life for
Count 7. Senegal received 360 months for Count 4 and 360 months for Count 8,
while York received 120 months for Count 4 and 120 months for Count 8.5 The
district court ordered that Counts 1, 2, 4, 5, 6, and 8 were to run concurrently,


      5
        After the jury’s verdict but before sentencing, Judge Samuel B. Kent, who had
presided over the trial, recused himself from this case. Judge Hayden Head took over the
presiding role, and sentenced Senegal and York.

                                           9
     Case: 08-40406   Document: 00511059611     Page: 10    Date Filed: 03/23/2010

                                   No. 08-40406

followed by Count 3’s life term to run consecutive to Counts 1, 2, 4, 5, 6, and 8,
and Count 7’s life term to run consecutive to the other seven. Senegal and York
timely appealed.
                                II. DISCUSSION
        We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
Senegal and York allege that numerous constitutional, evidentiary, and
statutory violations occurred during their trial and sentencing. We address each
of their arguments in turn.
A.      Brady Challenge as to Joseph’s Status as a Paid Informant
        Senegal and York argue that the Government violated the Supreme
Court’s disclosure rule from Brady v. Maryland, 373 U.S. 83 (1963), when it
failed to inform them that Joseph received payment for his work as an informant
in unrelated cases. We review allegations of Brady violations de novo. United
States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006).
        To prove their alleged Brady violation, Senegal and York must show that
“‘(1) the prosecution did not disclose the evidence; (2) the evidence was favorable
to the defense; and (3) the evidence was material—i.e., there is a reasonable
probability that if the [G]overnment had disclosed the evidence, the result of the
proceeding would have been different.’” United States v. Fernandez, 559 F.3d
303, 319 (5th Cir. 2009) (quoting United States v. Infante, 404 F.3d 376, 386 (5th
Cir. 2005)). “A ‘reasonable probability of a different result’ is shown when the
suppression ‘undermines confidence in the outcome of the trial.’” Graves v.
Dretke, 442 F.3d 334, 340 (5th Cir. 2006) (quoting Kyles v. Whitley, 514 U.S. 419,
434 (1995)).
        Senegal and York have not met their burden of proving a Brady violation.
We have held that “there can be no due process violation ‘[i]f the defendant
received the material in time to put it to effective use at trial.’” United States v.
Martinez, 151 F.3d 384, 391 (5th Cir. 1998) (quoting United States v. McKinney,

                                         10
     Case: 08-40406   Document: 00511059611    Page: 11   Date Filed: 03/23/2010

                                  No. 08-40406

758 F.2d 1036, 1049–50 (5th Cir. 1985)) (alteration in original). Therefore, the
Government need not necessarily disclose Brady material prior to trial. See
McKinney, 758 F.2d at 1049 (refusing to impose a pre-trial disclosure rule based
on Brady). This is true even though evidence “was not disclosed as early as it
might have and, indeed, should have been.” Id. at 1050.
        If the Government delays revealing evidence, “the inquiry is whether the
defendant was prejudiced by the tardy disclosure.” Id. Because Senegal and
York received information about Joseph’s history as a paid informant with
enough time to impeach him during cross-examination, they did not suffer
prejudice. Therefore the Government did not “suppress” Joseph’s informant
status in violation of Brady.
        Additionally, we cannot say that Joseph’s status as a paid informant in
other cases was material.       Although the Supreme Court has held that
impeachment evidence “falls within the Brady rule,” United States v. Bagley, 473
U.S. 667, 676 (1985), had the Government’s tardy disclosure prevented Senegal
and York from cross-examining Joseph about his informant status, we would
still have confidence in the verdict. Although Joseph gave damning testimony,
the Government introduced abundant evidence of Senegal and York’s guilt
through other means, as discussed inter alia.
B.      Hearsay Challenges as to Rolland, Franklin, Winn, and Joseph’s
        Testimony
        Senegal, but not York, argues that the district court improperly admitted
the following hearsay statements: (1) Rolland’s testimony that she overheard
Senegal and York plan to murder Mason; (2) Franklin’s testimony that he talked
with Senegal and York about killing Mason; (3) Winn’s testimony about the
conversation between Winn and York in jail in which York admitted his
involvement in the Mason shooting; and (4) unspecified portions of Joseph’s
testimony. We review “evidentiary rulings on a heightened abuse of discretion


                                        11
  Case: 08-40406       Document: 00511059611         Page: 12     Date Filed: 03/23/2010

                                       No. 08-40406

basis,” but “[e]ven an abuse of discretion may not merit reversal if the
error . . . was harmless.” United States v. Franklin, 561 F.3d 398, 404 (5th Cir.
2009). A hearsay challenge is non-constitutional, and “[n]on-constitutional trial
error is harmless unless it had substantial and injurious effect or influence in
determining the jury’s verdict.” Id. (quoting United States v. Simmons, 374 F.3d
313, 320 (5th Cir. 2004)) (internal quotation marks omitted).
       Federal Rule of Evidence 801(d)(2)(E) states that “[a] statement is not
hearsay if [it is] . . . a statement by a coconspirator of a party during the course
and in furtherance of the conspiracy.” In order to satisfy Rule 801(d)(2)(E),
“[t]he [G]overnment must prove by preponderance of the evidence ‘(1) the
existence of a conspiracy, (2) the statement was made by a co-conspirator of the
party, (3) the statement was made during the course of the conspiracy, and (4)
the statement was made in furtherance of the conspiracy.’” United States v.
Delgado, 401 F.3d 290, 298 (5th Cir. 2005) (quoting United States v. Robinson,
367 F.3d 278, 291–92 (5th Cir. 2004)). “The conspiracy that forms the basis for
admitting the coconspirators’ statements need not be the same conspiracy for
which the defendant is indicted.” United States v. Elashyi, 554 F.3d 480, 503
(5th Cir. 2008) (quoting Delgado, 401 F.3d at 299) (internal quotation marks
omitted).6
       1.     Rolland’s Testimony
       Senegal argues that the district court should have barred as hearsay
Rolland’s testimony regarding Senegal and York’s conversations about planning
to attack Mason.        He alleges that the conversations did not further any



       6
         Senegal argues that because some of the statements were not made to coconspirators,
the district court abused its discretion by admitting them under Rule 801(d)(2)(E). Nothing
in the rule suggests that a member of the conspiracy must report the statement in order to
satisfy the rule, and we have held that the Government satisfies the rule even when the target
of a murder conspiracy testifies as to statements made by coconspirators. See Robinson, 367
F.3d at 291–92.

                                             12
  Case: 08-40406      Document: 00511059611        Page: 13    Date Filed: 03/23/2010

                                     No. 08-40406

conspiracy, but amounted only to “idle chatter.” Cf. United States v. Cornett, 195
F.3d 776, 782 (5th Cir. 1999) (“‘Mere idle chatter’, [sic] even if prejudicial and
made among co-conspirators, is not admissible under Rule 801(d)(2)([E]).”)
(citing United States v. Means, 695 F.2d 811, 818 (5th Cir. 1983)).
      At trial, Rolland testified explicitly that she did not overhear any
conversation between Senegal and York in which they discussed their plan to
kill Mason. Senegal’s argument seems to refer to the Government’s introduction
of Rolland’s grand jury testimony in which she reported overhearing Senegal and
York plotting their attack. The district court, however, instructed the jury that
it could only consider Rolland’s grand jury testimony for impeachment purposes,
and not as substantive evidence as to any of the charged counts. Senegal’s
argument, therefore, entirely lacks merit.
      2.     Franklin’s Testimony
      Senegal argues that any discussion among Franklin, Senegal, and York
regarding the Mason shooting occurred after the conspiracy to murder Mason
ended, and therefore does not fall under Rule 801(d)(2)(E). Any statements
made by Senegal to Franklin implicating himself in Mason’s shooting are,
however, admissible as an admission of a party opponent under Federal Rule of
Evidence 801(d)(2)(A), which provides that “[a] statement is not hearsay
if . . . [it] is offered against a party and is . . . the party’s own statement, in either
an individual or a representative capacity.”
      Additionally, Senegal misstates the record. Although Franklin testified
that Winn informed him after Mason’s shooting that Senegal and York had
committed the attack, Franklin also testified to a conversation between himself,
Senegal, and York before the shooting, in which Senegal and York discussed
their desire to kill Mason, and in which Franklin advised them against doing so.
Because the Government has shown that (1) a conspiracy between Senegal and
York to kill Mason existed; (2) Senegal and York, as the coconspirators, made the

                                           13
  Case: 08-40406     Document: 00511059611    Page: 14    Date Filed: 03/23/2010

                                 No. 08-40406

challenged statements; (3) Senegal and York made many of the statements
during the course of the conspiracy; and (4) Senegal and York made the
statements in furtherance of the conspiracy, we find that the district court did
not abuse its discretion by admitting most of Franklin’s testimony. See Delgado,
401 F.3d at 298. We also find that admission of any of Franklin’s statements
that reported conversations that occurred after the Mason shooting was
harmless beyond a reasonable doubt.
      3.       Winn’s Testimony Concerning his Jailhouse Conversation
               with York
      Senegal argues that the district court erred by allowing the Government
to introduce Winn’s testimony regarding York’s jailhouse conversations with
Winn because these conversations occurred well after the conspiracies to rob the
UFCU and to silence Mason ended, and therefore do not meet the strictures of
Rule 801(d)(2)(E). Senegal’s argument is not without merit, as we have noted
that “[t]here can be no furtherance of a conspiracy that has ended.” United
States v. Nall, 437 F.2d 1177, 1182 n.5 (5th Cir. 1971).          Because these
conversations occurred after the conclusion of all the relevant conspiracies, the
district court abused its discretion by admitting them.
      The Government has, however, proved that this error was harmless
beyond a reasonable doubt. Even without Winn’s testimony, the Government
produced overwhelming evidence of Senegal’s involvement in Mason’s shooting.
This evidence included (1) Mason’s identification of Senegal as one of the
attackers, (2) Franklin’s testimony, (3) Joseph’s testimony, and (4) the evidence
tying the bullet extracted from Mason to the gun York left in DeVault’s car,
combined with Senegal’s signature on the pawn slips for the items stolen from
DeVault. We cannot say that the district court’s error had a “substantial and
injurious effect or influence in determining the jury’s verdict.” Franklin, 561
F.3d at 404.


                                       14
     Case: 08-40406   Document: 00511059611      Page: 15   Date Filed: 03/23/2010

                                    No. 08-40406

        4.    Joseph’s Testimony
        Senegal does not clearly state which part of Joseph’s testimony he finds
objectionable. The only questionable testimony involved Joseph’s conversation
with York in which York implicated Senegal in Mason’s shooting after it had
taken place. Although this particular part of Joseph’s testimony does not satisfy
the coconspirator exception to the hearsay rule, most of his testimony does, as
it either reported the substance of conversations with Senegal, thereby satisfying
Rule 801(d)(2)(E) as an admission by a party opponent; or reported conversations
occurring before Mason’s shooting where York and Senegal discussed killing
Mason, thereby satisfying Rule 801(d)(2)(E) as a statement by a coconspirator.
Based on the abundance of admissible evidence, we find that any error in
admitting portions of Joseph’s testimony was harmless beyond a reasonable
doubt.
C.      Evidentiary Challenges to the District Court’s Admission of
        Evidence Relating to the DeVault Robbery and the Texas City
        Arrest
        Senegal and York argue that the district court violated Federal Rule of
Evidence 404(b) by allowing various witnesses to testify about Senegal and
York’s involvement in two unindicted crimes: the DeVault robbery and the Texas
City arrest. We review evidentiary rulings for abuse of discretion, subject to
harmless error review. United States v. Crawley, 533 F.3d 349, 353 (5th Cir.
2008).
        Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith,” but “[i]t may . . . be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident . . . .” In order to satisfy Rule 404(b), the
Government must, “upon request by the accused . . . provide reasonable notice



                                          15
  Case: 08-40406     Document: 00511059611      Page: 16   Date Filed: 03/23/2010

                                     No. 08-40406

in advance of trial, or during trial if the court excuses pretrial notice on good
cause shown, of the general nature of any such evidence it intends to introduce
at trial.” F ED. R. E VID. 404(b).
      In United States v. Beechum, we established a two-part test for the
admission of an “extrinsic offense” under Rule 404(b). 582 F.2d 898, 911 (5th
Cir. 1978) (en banc). “First, it must be determined that the extrinsic offense
evidence is relevant to an issue other than the defendant’s character.” Id. Upon
satisfaction of the first prong, “the evidence must possess probative value that
is not substantially outweighed by its undue prejudice and must meet the other
requirements of [R]ule 403.” Id.
      We have also held that “Rule 404(b) is only implicated when the offered
evidence is extrinsic; evidence intrinsic to the charged offense does not implicate
the rule.” Crawley, 533 F.3d at 353–54. If we conclude that the additional
crimes are intrinsic to any of the charged offenses, then “‘consideration of [their]
admissibility pursuant to Rule 404(b) [is] unnecessary.’”        United States v.
Powers, 168 F.3d 741, 749 (5th Cir. 1999) (quoting United States v. Garcia, 27
F.3d 1009, 1014 (5th Cir. 1994)) (some alteration in original). “‘Other acts’
evidence is intrinsic when it is inextricably intertwined with the charged offense,
when both acts are part of the same criminal episode, or when the ‘other act’ was
a necessary preliminary step toward the completion of the charged crime.”
Crawley, 533 F.3d at 354 (citing United States v. Sumlin, 489 F.3d 683, 689 (5th
Cir. 2007)).
      1.       The DeVault Robbery
      The district court did not err when it allowed the Government to introduce
testimony about the DeVault robbery. Rule 404(b) allows the Government to
admit evidence of prior bad acts to prove identity, and the evidence recovered
from the DeVault robbery tends to prove the identity of Senegal and York as



                                         16
  Case: 08-40406    Document: 00511059611       Page: 17   Date Filed: 03/23/2010

                                  No. 08-40406

Mason’s attackers. The Government informed Senegal and York of their plan
to introduce evidence of the DeVault robbery, in compliance with Rule 404(b).
      The Government has also satisfied Beechum’s two-pronged test. The
DeVault robbery and the evidence surrounding it were “relevant to an issue
other than the defendant’s character”; namely, the identity of Mason’s
assailants. Beechum, 582 F.2d at 911. Additionally, the probative value of the
evidence gathered from the DeVault robbery far surpassed the prejudice alleged
by Senegal and York, who argue that the evidence concerning the DeVault
robbery implies that they habitually commit armed robberies, which could lead
a jury to believe that they possessed firearms and committed other armed crimes
habitually. The district court did not abuse its discretion by admitting testimony
about the DeVault robbery.
      2.     The Texas City Arrest
      In contrast, we find that the district court abused its discretion by allowing
the Government to introduce evidence of Senegal and York’s Texas City arrest.
The Government argues that the Texas City arrest is intrinsic because the police
recovered a .45 caliber firearm that Joseph testified was the same one that
Senegal misfired while attempting to kill Mason. This connection, however, is
too attenuated for us to conclude that the offenses were inextricably intertwined.
See Crawley, 533 F.3d at 354 (citing Sumlin, 489 F.3d at 689). Likewise, the
Government cannot justify admitting this evidence as extrinsic under Rule
404(b) because it did not give Senegal and York any “reasonable notice in
advance of trial, or during trial” about its intent to introduce the evidence. F ED.
R. E VID. 404(b).
      The district court’s error in admitting this testimony, however, was
harmless beyond a reasonable doubt. As discussed above, the Government
introduced abundant admissible evidence of Senegal and York’s guilt on all
counts. In addition to this overwhelming evidence, the district court gave the

                                        17
     Case: 08-40406    Document: 00511059611          Page: 18     Date Filed: 03/23/2010

                                       No. 08-40406

jury a cautionary instruction before admitting evidence of both the DeVault
robbery and the Texas City arrest.             See Crawley, 533 F.3d at 355 (“Even
assuming, therefore, that admission of the extrinsic evidence posed a risk of
undue prejudice, that risk was greatly minimized by the court’s limiting
instruction.”). We find that Senegal and York have not demonstrated reversible
error.
D.       Sufficiency of the Evidence Challenge as to York’s Conviction for
         Aiding and Abetting Senegal’s Possession of a Lorcin Pistol
         York, but not Senegal, appeals his conviction under Count 4, which
charged him with aiding and abetting Senegal’s possession of a Lorcin pistol
while Senegal was a convicted felon.               York argues that because Rolland,
Senegal’s girlfriend, recanted her grand jury testimony and refused to testify at
trial that York brought the Lorcin pistol to her house, the Government has not
produced sufficient evidence to convict York of aiding and abetting Senegal’s
possession of the weapon. Although the Government impeached Rolland with
her grand jury testimony under Federal Rule of Evidence 607, Rolland never
adopted those statements at trial, and the district court limited the jury’s
consideration of Rolland’s grand jury testimony to use for impeachment purposes
only.7
         The jury found York guilty of the charge in Count 4, and our “review of the
sufficiency of the evidence is ‘highly deferential to the verdict.’” Elashyi, 554
F.3d at 491–92 (quoting United States v. Gulley, 526 F.3d 809, 816 (5th Cir.
2008)).      We ask “‘whether the evidence, when reviewed in the light most
favorable to the [g]overnment with all reasonable inferences and credibility


         7
         See Gower v. Cohn, 643 F.2d 1146, 1153 n.11 (5th Cir. 1981) (“Where a limiting
instruction is given, the jury may consider the prior inconsistent statement only as
impeachment, and not as substantive evidence.”); see generally United States v. Dennis, 625
F.2d 782, 795–96 (8th Cir. 1980) (“Whether to admit [prior inconsistent statements] as
substantive evidence or to limit their use to impeachment is within the broad discretion of the
trial court.”).

                                              18
     Case: 08-40406   Document: 00511059611     Page: 19    Date Filed: 03/23/2010

                                  No. 08-40406

choices made in support of a conviction, allows a rational fact finder to find every
element of the offense beyond a reasonable doubt.’” Id. at 492 (quoting Gulley,
526 F.3d at 816) (alteration in original).
        Although the jury could not consider Rolland’s grand jury testimony as
evidence of York’s guilt, the Government produced other evidence as to York’s
participation in Senegal’s possession of the Lorcin pistol. Specifically, Winn
identified the Lorcin pistol as the weapon Senegal used and brandished during
the UFCU robbery, and security photographs taken during the UFCU robbery
showed York near Senegal while Senegal brandished the weapon. Considering
this evidence “in the light most favorable to the [g]overnment with all reasonable
inferences and credibility choices made in support of a conviction,” we cannot say
that no rational fact finder could find York guilty beyond a reasonable doubt of
aiding and abetting Senegal’s possession of the Lorcin pistol.         Id. (quoting
Gulley, 526 F.3d at 816) (alteration in original).         We thus affirm York’s
conviction on Count 4.
E.      Challenge to the District Court’s Statements
        Senegal and York argue that the district court judge exhibited “manifest
partiality” that deprived them of their constitutional right to a fair trial. After
the officer who responded to the Mason shooting testified that Mason could not
identify his assailants immediately after the attack, the district court judge
asked the officer whether gunshot wound victims suffer from shock that affects
“their judgment, their perception, [and] their ability to communicate.” The
officer responded “I’m assuming it can, yes sir.” Senegal and York argue that
the district court asked this question in an attempt to undermine the defense.
        Senegal and York also allege bias in the district court judge’s statement
that “I’ve never had a hung jury in 17 years and you ain’t going to be the first.”
They argue that this statement implied that the jury need not partake in any
true, good faith deliberation over Senegal and York’s guilt.

                                        19
  Case: 08-40406    Document: 00511059611       Page: 20    Date Filed: 03/23/2010

                                  No. 08-40406

      When faced with a complaint that a judge’s misconduct gives the
appearance of partiality, we must “determine whether the judge’s behavior was
so prejudicial that it denied the defendant a fair, as opposed to a perfect, trial.”
United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994) (citing United States
v. Williams, 809 F.2d 1072, 1086 (5th Cir. 1987)).         “To rise to the level of
constitutional error, the district judge’s actions, viewed as a whole, must amount
to an intervention that could have led the jury to a predisposition of guilt by
improperly confusing the functions of judge and prosecutor.” Id. (citing United
States v. Samak, 7 F.3d 1196, 1197–98 (5th Cir. 1993)). When considering the
challenged remarks, we must also place them in the “proper context by viewing
the totality of the circumstances, considering factors such as the context of the
remark, the person to whom it is directed, and the presence of curative
instructions,” and before we may reverse, “[t]he totality of the circumstances
must show that the trial judge’s intervention was quantitatively and
qualitatively substantial.” United States v. Saenz, 134 F.3d 697, 702 (5th Cir.
1998) (quoting Bermea, 30 F.3d at 1569) (internal quotation marks omitted).
      We find that the district court’s limited questioning of the officer was not
inappropriate. Federal Rule of Evidence 614(b) allows the district court to
“interrogate witnesses, whether called by itself or by a party,” and we have held
that “[a] federal district judge may comment on the evidence, question witnesses,
bring out facts not yet adduced, and maintain the pace of the trial by
interrupting or setting time limits on counsel.” United States v. Wallace, 32 F.3d
921, 928 (5th Cir. 1994) (citing United States v. Hawkins, 661 F.2d 436, 450 (5th
Cir. 1981)). We find that the district court’s de minimus examination of the
officer did not prejudice either Senegal or York.
      Viewing the entirety of the district court’s comments to the jury is
illustrative. The district court’s statement reads:



                                        20
     Case: 08-40406   Document: 00511059611      Page: 21    Date Filed: 03/23/2010

                                    No. 08-40406

        Look, my expectation is that we’re going to finish the record
        tomorrow and that we will very likely argue the case and submit it
        to you for deliberations. Whether you reach a verdict tomorrow or
        spend the rest of your lives doing it is your business. I’ve never had
        a hung jury in 17 years and you ain’t going to be the first. So get
        some rest, be refreshed. Be ready to go. This is hard work. And
        when it comes to your turn to be judges of the facts, you’re gong [sic]
        to see what I’m talking about. It is hard work. So be ready to go.
        Thank you for your attention.
Senegal and York’s argument that the district court implied that the jury need
not seriously deliberate their guilt or innocence is entirely baseless. In context,
the district court’s statement implored the jury to prepare to take their job very
seriously, and suggested that they should take as much time as necessary to
reach the correct result.      The record does not suggest that this comment
prejudiced Senegal or York in the least. Even when combined, the district
court’s actions do not rise to the level of reversible error.
F.      Challenge to the District Court’s Sentence
        On appeal, Senegal, but not York, argues that the district court erred in
several ways when it imposed his sentence. He did not, however, make any
objections to his sentence before the district court, and we thus review for plain
error. To prove plain error, Senegal “must show (1) there was error, (2) the error
was plain, (3) the error affected his substantial rights, and (4) the error seriously
affected the fairness, integrity or public reputation of judicial proceedings.”
United States v. Clark, 582 F.3d 607, 616 (5th Cir. 2009) (quoting United States
v. Jackson, 549 F.3d 963, 975 (5th Cir. 2008)) (internal quotation marks
omitted). Even if Senegal satisfies all the elements of plain error review, “the
decision to grant relief is entirely discretionary.” Id. (citing United States v.
Olano, 507 U.S. 725, 735–36 (1993)).




                                          21
  Case: 08-40406    Document: 00511059611     Page: 22    Date Filed: 03/23/2010

                                  No. 08-40406

      1.    Consecutive Sentences under 18 U.S.C. §§ 924(c)(1)(A) and
            924(e)
      Senegal argues that the district court erred by imposing consecutive
sentences for his convictions under 18 U.S.C. § 924(e), which prohibits being a
felon in possession of a firearm and carries a fifteen-year mandatory minimum
sentence, and 18 U.S.C. § 924(c)(1)(A), which imposes an additional, yet shorter,
mandatory minimum punishment for possessing a firearm while committing a
crime of violence. Senegal cites the Second Circuit’s decision in United States v.
Whitley, which held that the text of § 924(c)(1)(A) “exempt[ed the defendant]
from the consecutive ten-year minimum sentence for discharging a firearm
because he is subject to the higher fifteen-year minimum sentence provided by
section 924(e).” 529 F.3d 150, 158 (2d Cir. 2008). He acknowledges that we have
allowed a district court to impose consecutive sentences for violations of
§ 924(c)(1)(A) and a statute with a longer minimum mandatory sentence, see
United States v. Kyles, 304 F. App’x 268, 269–70 (5th Cir. 2008) (per curiam)
(unpublished); United States v. Collins, 205 F. App’x 196, 197–98 (5th Cir. 2006)
(per curiam) (unpublished), but contends that Whitley proves that the district
court imposed a sentence that is “plainly excessive.”
      Although the Second Circuit’s reasoning applies to Senegal’s situation, he
cannot demonstrate plain error. After Senegal filed his brief in this case, we
adopted, in a published opinion, the reasoning and holding set forth in Collins.
See United States v. London, 568 F.3d 553, 564 (5th Cir. 2009). London binds
our analysis, and precludes Senegal’s claim that the district court plainly erred
when making this sentencing determination.
      2.    Double Jeopardy
      Senegal also argues that because the jury found him guilty of violating 18
U.S.C. § 924(e) for being a felon in possession of a firearm, and 18 U.S.C.
§ 924(c)(1)(A) for possessing a firearm while committing a crime of violence, and


                                       22
  Case: 08-40406    Document: 00511059611       Page: 23   Date Filed: 03/23/2010

                                  No. 08-40406

both offenses involved the same firearm, his convictions violate the Double
Jeopardy Clause.     Senegal cites United States v. Medellin-Torres for the
proposition that “convictions and sentences, which were based on possession of
the same weapon, are multiplicitous and violate double jeopardy.” 293 F. App’x
354, 354–55 (5th Cir. 2008) (per curiam) (unpublished). Both Medellin-Torres
and the case it relies on, United States v. Munoz-Romo, 989 F.2d 757 (5th Cir.
1993), addressed defendants convicted for multiple violations of 18 U.S.C.
§ 922(g), which prohibits certain classes of individuals from possessing firearms
and whose subsections “differ[] only in [their] requirement that the offender
have a certain ‘status’ under the law.” Munoz-Romo, 989 F.2d at 759 (internal
quotation marks omitted).
      Senegal’s argument is without merit. In Munoz-Romo, we held that “the
language and structure of Section 922(g) disclose Congress’s clear intent not to
impose cumulative punishments when the same incident violates two
subdivisions of subsection (g),” in part, because “[t]he two subdivisions at issue
here are found in a single subsection of a statute that prescribes a single penalty
for all of those subdivisions.” Id. (emphases added). We also noted that “the
statute’s structure indicates that Congress sought ‘only to bar the possession of
firearms by certain types of persons that it considered dangerous,’ and not to
punish persons ‘solely for having a certain status under the law.’” Id. (quoting
United States v. Winchester, 916 F.2d 601, 605–06 (11th Cir. 1990). We held that
Congress did not intend that “a convicted felon who is also a fugitive from
justice, a drug addict, a mental defective, and an illegal alien, could be sentenced
to five consecutive terms of imprisonment for the same incident, namely, the
possession of a firearm.” Id. (quoting Winchester, 916 F.2d at 607) (emphasis
added) (internal quotation marks omitted).
      We do not have any of the same concerns in this case. Senegal received
separate sentences for being a felon in possession of a firearm and for possessing

                                        23
  Case: 08-40406      Document: 00511059611         Page: 24     Date Filed: 03/23/2010

                                      No. 08-40406

a firearm while committing a crime of violence.              The two offenses punish
different incidents, and both sections enumerate distinct penalties. Compare 18
U.S.C. § 924(e), with 18 U.S.C. § 924(c)(1)(A). That Senegal used the same
weapon during the course of committing both offenses is irrelevant; while his
conviction under § 924(e) imposed a punishment for possessing a firearm while
having the status of a felon, his conviction under § 924(c)(1)(A) punished his use
of a firearm. We hold that Senegal’s convictions for violations of 18 U.S.C.
§§ 924(e) and 924(c)(1)(A) do not violate the Double Jeopardy Clause.
         3.    Apprendi/Booker
         Senegal argues that the district court improperly applied a sentence
enhancement based on its finding that Mason suffered life-threatening injuries
from the shooting. Senegal asserts that without that finding, the district court
would not have calculated his Federal Sentencing Guidelines range as 360
months to life for Counts 3 and 7,8 and that because the jury did not make the
determination as to the extent of Mason’s injuries, his sentence violates the rules
set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v.
Booker, 543 U.S. 220 (2005).            Because the district court had statutory
authorization to impose a life sentence for these two Counts, Senegal’s argument
fails.
         Apprendi held that “any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 530 U.S. at 490. Once the jury’s findings establish
the statutory maximum, however, the district court can make findings as to



         8
         Senegal’s argument regarding the district court’s determination that Mason suffered
life-threatening injuries does not appear relevant to Count 3, which charged Senegal with
carrying, using, and brandishing a firearm during the UFCU robbery in violation of 18
U.S.C. §§ 924(c)(1)(A) and 2. Because § 924(c)(1)(A) gave rise to both counts, the following
analysis applies equally to both, although Senegal’s reasoning seems relevant only to Count
7.

                                            24
  Case: 08-40406     Document: 00511059611       Page: 25    Date Filed: 03/23/2010

                                   No. 08-40406

additional information that would cause it to impose a higher or lower sentence
within the statutorily authorized range. See Booker, 543 U.S. at 233 (“We have
never doubted the authority of a judge to exercise broad discretion in imposing
a sentence within a statutory range. . . . For when a trial judge exercises his
discretion to select a specific sentence within a defined range, the defendant has
no right to a jury determination of the facts that the judge deems relevant.”). We
have held that “[p]ost-Booker, a district court may sentence a defendant on facts
not established by either a guilty plea or jury verdict, as long as the [facts] ha[ve]
been proven by a preponderance of the evidence.” United States v. Valles, 484
F.3d 745, 760 (5th Cir. 2007) (citing United States v. Valdez, 453 F.3d 252, 264
(5th Cir. 2006)(citation omitted)).
      The statute giving rise to Counts 3 and 7 provides that using a firearm
during a crime of violence results in penalties “in addition to the punishment
provided for such crime of violence.” 18 U.S.C. § 924(c)(1)(A). Specifically,
§ 924(c)(1)(A) instructs the district court to impose “not less than 5 years” for
using or carrying a firearm, “not less than 7 years” for brandishing a firearm,
and “not less than 10 years” for discharging a firearm. We have held that “in the
absence of a statutory maximum penalty, the maximum penalty when a term of
not less than a certain number of years is provided, means that the maximum
is life imprisonment.” United States v. Sias, 227 F.3d 244, 247 (5th Cir. 2000).
      Because § 924(c)(1)(A) has no maximum penalty, the district court had
statutory authorization to impose life sentences on Senegal for Counts 3 and 7.
The district court concluded that Mason suffered permanent or life threatening
injuries, looked to the advisory Federal Sentencing Guidelines, and applied the
four level increase authorized under § 2A2.1(b)(1)(A). This increase resulted in
a recommended sentence of 360 months to life, and the district court did not
plainly err by choosing a sentence at the upper limit of the suggested range. See
United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (“A

                                         25
  Case: 08-40406     Document: 00511059611    Page: 26   Date Filed: 03/23/2010

                                 No. 08-40406

discretionary sentence imposed within a properly calculated guidelines range is
presumptively reasonable.” (citing United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006))).
                             III. CONCLUSION
      Senegal and York have not demonstrated any meritorious reason for
disturbing either their convictions or their sentences. For the reasons discussed
above, we affirm their convictions in their entirety.
      AFFIRMED.




                                       26
