     Case: 12-10979   Document: 00512672499    Page: 1   Date Filed: 06/20/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 12-10979                    United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
UNITED STATES OF AMERICA,                                          June 20, 2014
                                                                  Lyle W. Cayce
                                          Plaintiff-Appellee,          Clerk
v.

JOSEPH DEMONT ANDERSON,

                                          Defendant-Appellant.




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


Before STEWART, Chief Judge, and DENNIS and ELROD, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Defendant-Appellant Joseph Demont Anderson (“Anderson”) was
convicted by a jury of aiding and abetting bank robbery.         On appeal, he
challenges his conviction, sentence, and various rulings by the district court.
For the reasons explained herein, we affirm.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      In February 2012, a federal grand jury charged Anderson and Jeremy
Butler (“Butler”) in a one-count indictment with aiding and abetting each other
in the commission of a bank robbery in violation of 18 U.S.C. §§ 2113(a) and 2.
Anderson pleaded not guilty and proceeded to trial where he was the lone
defendant. The evidence presented at trial showed that around 2:15 p.m. on
January 18, 2012, Butler entered a Chase Bank branch in Dallas, Texas
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                                 No. 12-10979
wearing something to cover his face and demanded money from a teller. The
teller placed approximately $6,500 in a bag along with a tracking device.
Butler then exited the bank through the front door, ran around the side of the
bank, and jumped over a fence into someone’s back yard. A witness testified
that Butler appeared to know exactly where he was running after he exited the
bank. Around the time Butler was inside of the bank, a witness who lived in
the neighborhood behind the bank saw a gold Grand Marquis driving slowly
down his street. The witness testified that as the car traveled down his street,
he saw a man—who appeared to have something covering his face—jump over
his neighbor’s fence and enter the Grand Marquis.
      Around the same time, Dallas Police Department received a call for a
bank robbery and officers were immediately dispatched to the area near the
Chase Bank. The bank’s tracking device led officers to a Grand Marquis
occupied by three men. When officers attempted to stop the Grand Marquis,
its occupants—Butler, Teddy Rogers (“Rogers”), and Anderson—exited the
vehicle and ran. The men were eventually apprehended and transported to
the police station for questioning.
      While in custody at the police station, Anderson signed a Miranda
waiver and participated in an interview with a Dallas Police Department
detective and a Federal Bureau of Investigation (“FBI”) agent. The interview
was captured by video and audio recording. During the interview, Anderson
explained, inter alia, that he had no idea that Butler planned to rob a bank.
Anderson stated that he simply agreed to give Butler a ride across town.
According to Anderson, Butler exited his vehicle near the Chase Bank and
when Butler did not return, Anderson and Rogers decided to leave Butler.
Anderson claimed that as he was driving, Butler appeared out of nowhere and
reentered his vehicle. Anderson stated that even after Butler reentered his
vehicle, he was not aware of the fact that Butler had just robbed a bank.
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                                      No. 12-10979
       The government charged Anderson and Butler with aiding and abetting
bank robbery but did not charge Rogers. Prior to his trial, Anderson filed a
motion to suppress “all statements taken from [him] at the time of his arrest
and during custodial interrogation in an interview room.” The district court
denied the motion. After a short trial, the jury convicted Anderson of aiding
and abetting bank robbery. The United States Probation Office prepared a
Presentence Investigation Report (“PSR”) that recommended: (1) that
Anderson be classified as a career offender because his prior burglary
conviction was a crime of violence; (2) that his criminal history category was
IV; (3) that his total offense level was 32; and (4) that his United States
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) range was 210 to 240
months’ imprisonment followed by a term of not more than three years of
supervised release. Anderson objected to the PSR on the grounds that his prior
burglary conviction did not qualify as a crime of violence. The district court
overruled the objection, adopted the PSR’s Guidelines calculation, and
sentenced Anderson to 210 months’ imprisonment followed by a three-year
term of supervised release.         Anderson timely appealed his conviction and
sentence. 1
                                  II. DISCUSSION
                                            A.
       On appeal, Anderson challenges the district court’s denial of his motion
to suppress his interrogation video. “When reviewing the denial of a motion to
suppress, we review findings of fact for clear error and conclusions of law de
novo.” United States v. Jenson, 462 F.3d 399, 403 (5th Cir. 2006) (citation



       1 Anderson filed a motion to supplement the record on March 18, 2014. The
government filed a motion to supplement the record on March 26, 2014. The government
also moved to place its motion to supplement the record under seal. These motions are hereby
granted.
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                                 No. 12-10979
omitted). All facts should be construed in the light most favorable to the
prevailing party. Id. “[A] district court’s determination regarding the validity
of a defendant’s waiver of his Miranda rights is a question of law reviewed de
novo, but this court accepts the factual conclusions underlying the district
court’s legal determination unless they are clearly erroneous.” United States
v. Solis, 299 F.3d 420, 439 (5th Cir. 2002) (citation and internal quotation
marks omitted).
      In order to use an in-custody statement against a defendant at trial, the
government must demonstrate that the defendant was warned of his right to
remain silent and his right to consult with an attorney.        See Miranda v.
Arizona, 384 U.S. 436, 471 (1966).         “When a defendant challenges the
voluntariness of a confession, the government must prove its voluntariness by
a preponderance of the evidence in order for the confession to be admissible as
substantive evidence at the defendant’s criminal trial.” United States v. Bell,
367 F.3d 452, 461 (5th Cir. 2004) (citation and internal quotation marks
omitted). We consider the totality of the circumstances to determine if “the
statement is the product of the accused’s free and rational choice,” and thereby
voluntary. Id. A confession is involuntary if it was derived from “coercive
police conduct” and a causal link exists between that conduct and the
confession. Id.
      Having reviewed the interrogation video and other evidence in the
record, we affirm the district court’s denial of Anderson’s motion to suppress.
Anderson alleges that the coercion at issue in this case began when he was
“roughed-up” at the scene of his arrest.         The evidence in the record
demonstrates that an officer landed on top of Anderson at the end of the foot
chase. Officer Fifield testified that the individual who fell on top of Anderson,
Officer Henderson, pulled his hamstring and accidently fell on top of Anderson
as a result. According to Officer Fifield, Officer Henderson was transported to
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                                 No. 12-10979
Baylor hospital by ambulance as a result of his injury. A finding that Officer
Henderson accidently fell on top of Anderson would not be clearly erroneous.
Furthermore, Officer Henderson was not present during Anderson’s
interrogation and no law enforcement officer insinuated that there would be
further physical contact if Anderson exercised his right to remain silent.
      Next, Anderson alleges that shortly after he was arrested, an officer told
him that he was going to prison for forty years. The district court heard
testimony, outside the presence of the jury, from Anderson and Officer Otto on
the issue of whether such a statement was made. The government impeached
Anderson with his prior felony convictions during his testimony on this issue.
Officer Otto denied making such a statement or hearing any other officer make
such a statement. After assessing the evidence, the district court credited
Officer Otto’s testimony that neither he nor any other officer told Anderson
that he was going to prison for any period of time. Accordingly, we defer to the
district court’s credibility determination and finding that no officer told
Anderson that he was going to prison for forty years. See United States v.
Gibbs, 421 F.3d 352, 356–57 (5th Cir. 2005) (stating that this court should
adhere to the clearly erroneous standard to an even greater extent when a
denial of a motion to suppress is based upon live testimony). Nevertheless,
even if an officer made such a statement to Anderson, it was not made in the
context of his interrogation and discussions about potential prison sentences,
without more, do not generally amount to coercion. See United States v. Rico,
51 F.3d 495, 507 (5th Cir. 1995).      Moreover, no evidence in the record
demonstrates that anyone told Anderson that he would be sentenced to forty
years if he did not agree to waive his Miranda rights.
      Finally, Anderson argues that his will was overborne by the size of the
law enforcement officers and their bombarding him with false accusations.
Even taking Anderson’s characterization of the events as true, this circuit has
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                                  No. 12-10979
held that similar tactics do not generally constitute coercion or intimidation.
See Bell, 367 F.3d at 462–63 (holding that the officers’ interrogation
techniques—including false statements—were not coercive). Additionally, the
interrogation video demonstrates that the officers introduced themselves to
Anderson and immediately provided him with Miranda warnings. Anderson
was not handcuffed during the interview, the officers never displayed any
weapons, and they never placed their hands on him.         Furthermore, Anderson
had significant contact with law enforcement prior to the instant arrest. His
experience with the criminal process makes it less likely that his confession
was involuntary. See United States v. Hearn, 563 F.3d 95, 104 (5th Cir. 2009)
(considering Defendant’s experience with law enforcement when deciding that
she knowingly and voluntarily forfeited her Miranda rights).
      The totality of the circumstances support the conclusion that Anderson
was properly apprised of his Miranda rights and that his confession was
knowing and voluntary. Therefore, the district court did not err by denying
Anderson’s motion to suppress his interrogation video.
                                      B.
      At trial, the defense attempted to call Teddy Rogers—the unindicted
passenger in Anderson’s car on the day of the incident—as a witness. The
government informed the district court that Rogers was represented by counsel
in a separate criminal matter and that there were potential Fifth Amendment
implications regarding his testimony in Anderson’s trial. The district court
questioned Rogers—outside of the presence of the jury—as to whether he
wished to assert his Fifth Amendment right. Rogers initially stated that he
would waive his Fifth Amendment right and testify at Anderson’s trial. After
meeting with an attorney, however, Rogers decided to exercise his Fifth
Amendment right to not testify.


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                                 No. 12-10979
      On appeal, Anderson alleges that an off-the-record conversation occurred
“in open court” between the government and the district court where the
government stated that it would indict Rogers if he testified for the defense.
Rogers was not present for this alleged conversation. The only evidence of the
substance of this conversation is the assertion made in Anderson’s brief on
appeal. However, the trial record indicates that an “[o]ff-the-record discussion”
took place just after Anderson’s motion for judgment of acquittal. Anderson
argues that the government attempted to prevent Rogers from testifying by
informing the court that it would indict Rogers if he testified on behalf of
Anderson. Anderson claims that the government did not truly intend to indict
Rogers and only used the potential indictment as a “ruse” to keep Rogers off of
the witness stand.
      Whether the government substantially interfered with a defendant’s
right to present witnesses and establish his defense is a fact question. United
States v. Bieganowski, 313 F.3d 264, 291 (5th Cir. 2002). Accordingly, this
court generally reviews prosecutorial intimidation claims for clear error. Id.
However, because this claim was not raised before the district court, we review
it for plain error. Fed. R. Crim. P. 52(b); United States v. Smith, 31 F. App’x
158, *3 (5th Cir. 2001) (per curiam) (unpublished) (holding that plain error
analysis applied to allegations of witness intimidation that were not raised at
trial). “A district court’s decision to exclude a witness’ testimony based on an
invocation of the witness’ Fifth Amendment privilege is reviewed for an abuse
of discretion.” United States v. Kinchen, 729 F.3d 466, 475 (5th Cir. 2013).
      “Threats against witnesses are intolerable.      Substantial government
interference with a defense witness’ free and unhampered choice to testify
violates due process rights of the defendant.” United States v. Goodwin, 625
F.2d 693, 703 (5th Cir. 1980). In order to demonstrate substantial government
interference, “the defendant must show a causal connection between the
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                                     No. 12-10979
governmental action and the witness’ decision not to testify.” See Knotts v.
Quarterman, 253 F. App’x 376, 381 (5th Cir. 2007) (unpublished) (citing
Bieganowski, 313 F.3d at 291–92; United States v. Thompson, 130 F.3d 676,
687 (5th Cir. 1997)).
           We note that there is no information in the record to substantiate
Anderson’s version of events. However, even assuming arguendo that the
alleged off the record conversation occurred in the manner in which Anderson
asserts, we conclude that the government did not substantially interfere with
Rogers’s choice to not testify at Anderson’s trial.     It is important to note that
the record does not indicate that the government had any conversations with
Rogers with respect to the consequences of testifying as a witness in Anderson’s
case. Instead, the record shows that the government informed the district
court and Anderson’s counsel of Rogers’s status and the district court decided
to question Rogers to ensure that he felt comfortable testifying. After Rogers
indicated that he was willing to testify, he told the district court that he wanted
to speak with an attorney before making a final decision. The district court
asked Rogers why he wanted to speak with an attorney and Rogers stated: “I
can tell the state what I told them before, but I would rather have an attorney
right here with me though, you know what I’m saying, just for—for my safety
. . . .”
           After Rogers met with his attorney, the attorney questioned Rogers on
the record about their discussion with respect to the potential implications of
Rogers testifying. Rogers’s attorney asked him the following question:
           And, basically, what it came down to, I asked you after I explained
           kind of the different scenarios and what could happen and
           potential outcomes, I explained to you that it’s your choice, you
           have an absolute right to testify or to invoke your Fifth
           Amendment right and you understood that. Is that correct?



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                                  No. 12-10979
      Rogers answered “[y]es, sir.” Rogers then explained that he wished to
exercise his Fifth Amendment right because he felt that he could possibly
incriminate himself by testifying.      The colloquy between Rogers and his
attorney demonstrates that Rogers’s decision to not testify was a result of a
deliberative process free and clear of government intimidation.            During
questioning by his attorney and the district court, Rogers never indicated that
he did not want to testify because he was afraid that the government would
indict him.    Therefore, there is no causal nexus between the alleged
governmental action and Rogers’s decision to not testify. See Bieganowski, 313
F.3d at 291–92. Accordingly, Rogers’s claim of error on this issue is without
merit.
                                        C.
      During the course of the trial, the district court made several evidentiary
rulings that were adverse to Anderson. He challenges on appeal (1) the district
court’s decision to exclude evidence regarding a prior bank robbery committed
by Butler; (2) the district court’s decision to exclude Rogers’s interrogation
video; and (3) the district court’s decision to exclude certain evidence related to
Butler’s mental condition. “A district court’s evidentiary rulings are typically
reviewed for abuse of discretion.” United States v. Pruett, 681 F.3d 232, 243
(5th Cir. 2012) (citation omitted). “A trial court abuses its discretion when its
ruling is based on an erroneous view of the law or a clearly erroneous
assessment of the evidence.” United States v. Ragsdale, 426 F.3d 765, 774 (5th
Cir. 2005) (citation and internal quotation marks omitted). Any abuse of
discretion by the district court is subject to a harmless error analysis and a
ruling should be reversed only if it substantially prejudiced the defendant’s
rights. See United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007) (per
curiam).   We will address Anderson’s challenges to the district court’s
evidentiary rulings in turn.
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                                  No. 12-10979
      i. Butler’s Prior Bank Robbery
      Anderson attempted to present evidence to the jury showing that Butler
robbed a Bank of America two weeks prior to the incident in question. He
claimed that Butler, without Anderson’s assistance, executed the Bank of
America robbery in the same exact fashion in which he executed the bank
robbery at issue in this case.      According to Anderson, the evidence was
admissible under Federal Rule of Evidence (“FRE”) 406, which allows for the
admission of “habit evidence.” The government moved in limine to exclude this
evidence, arguing that it was irrelevant. The district court agreed with the
government and excluded any evidence related to Butler’s prior bank robbery.
      Under FRE 401, “[e]vidence is relevant if: (a) it has any tendency to make
a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.” Fed. R. Evid. 401. Relevant
evidence is generally admissible unless it falls under a specific prohibition.
Fed. R. Evid. 402. FRE 406 provides that “[e]vidence of a person’s habit . . .
may be admitted to prove that on a particular occasion the person . . . acted in
accordance with the habit . . . .” Fed. R. Evid. 406. “To offer evidence of a habit,
a party must at least demonstrate a regular practice of meeting a particular
kind of situation with a specific type of conduct.” United States v. Heard, 709
F.3d 413, 434 (5th Cir. 2013) (citation and internal quotation marks omitted).
“Habit suggests a regular response to a repeated specific situation that has
become semi-automatic.” Id. (citation and internal quotations omitted).
      Anderson argues on appeal that evidence related to Butler’s prior solo
bank robbery was crucial and probative to his defense because it made it more
probable that Butler acted alone on January 18, 2012. Anderson’s defense at
trial was that he, in good faith, gave Butler a ride without any knowledge of
Butler’s proclivity toward robbing banks and without knowledge of Butler’s
intent to commit a bank robbery on January 18, 2012. Therefore, Anderson
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                                       No. 12-10979
argues, he was erroneously precluded from presenting his “affirmative defense
of good faith and lack of knowledge.” Anderson relies on United States v.
Lowery for the proposition that he was entitled to present evidence supporting
his affirmative defense. 135 F.3d 957 (5th Cir. 1998) (per curiam).
       We conclude that the district court did not abuse its discretion by
excluding evidence related to Butler’s prior bank robbery. The district court
has significant discretion in determining whether evidence is relevant to the
issues at trial. United States v. Masat, 948 F.2d 923, 933 (5th Cir. 1991).
Anderson provides no authority supporting the notion that details of one of
Butler’s prior criminal acts are probative to Anderson’s guilt or innocence in
this case. 2 Moreover, this evidence does not meet the threshold requirements
for habit evidence under FRE 406 because there was no evidence that robbing
banks alone was Butler’s “regular practice.” See Heard, 709 F.3d at 434. The
fact that Butler committed one prior bank robbery alone does not demonstrate
that on January 18, 2012, he acted in conformity with a habit of committing
bank robberies alone.
       Furthermore, Anderson’s reliance on Lowery to support the admissibility
of his purported affirmative defense is unpersuasive.                   In that case, the
defendant was convicted of obstruction of justice in violation of 18 U.S.C.
§ 1512(b)(1). Lowery, 135 F.3d at 958. Lowery’s conviction was based upon his
attempt to influence a witness’ testimony in a criminal trial. Id. Lowery’s
defense theory was that he simply encouraged the witness to testify truthfully.
Id. at 958–59. 18 U.S.C. § 1512(e) provides a statutory affirmative defense to
obstruction of justice.       To successfully assert this affirmative defense, a



       2 To the contrary, we explained in United States v. Nelson that in the context of multi-
party criminal endeavors, one individual’s history of independent criminal conduct does not
make it more or less probable that other parties were involved in the alleged joint criminal
conduct at issue. 242 F. App’x 164, 172 (5th Cir. 2007) (unpublished).
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                                  No. 12-10979
defendant must prove by a preponderance of the evidence that his conduct was
lawful and his “sole intention was to encourage, induce or cause the other
person to testify truthfully.” 18 U.S.C. § 1512(e). At trial the district court
excluded evidence that would have aided Lowery in proving his affirmative
defense. Lowery, 135 F.3d at 959. This court reversed and remanded for a new
trial holding that the district court’s ruling stifled Lowery’s right to assert his
affirmative defense. Id. at 960. Unlike the defendant in Lowery, Anderson
fails to cite any authority demonstrating that “good faith and lack of
knowledge” is an affirmative defense to aiding and abetting bank robbery. Nor
are we aware of such a case. Therefore, Anderson’s assertion that he acted
with “good faith and lack of knowledge” is more appropriately characterized as
his defense theory as opposed to an affirmative defense. While Anderson is
permitted to submit evidence to the jury to support his defense theory, he is
not permitted to submit evidence that is irrelevant to the issues at trial.
      The ultimate issue for the jury at Anderson’s trial was whether the
government proved beyond a reasonable doubt that Anderson aided and
abetted Butler in a bank robbery on January 18, 2012. Anderson’s defense
theory of “good faith and lack of knowledge” focused on his state of mind at the
time of the offense. Butler’s prior bank robbery—which Anderson does not
claim to have been aware of at the time of the instant offense—is not relevant
to Anderson’s state of mind.      Anderson cites no case law supporting the
proposition that he was entitled to present evidence showing that Butler, on
one prior occasion, committed a bank robbery without his assistance.
Accordingly, we conclude that the district court did not abuse its discretion by
excluding evidence related to Butler’s prior bank robbery.
      ii. Rogers’s Interrogation Video
      After Rogers asserted his Fifth Amendment right to not testify, Anderson
attempted to enter Rogers’s interrogation video into evidence in lieu of his live
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                                  No. 12-10979
testimony. Anderson intended to offer the video for the purpose of showing: (1)
Rogers’s perception of Butler’s mental state; (2) that Anderson did not know
Butler; (3) that Rogers and Anderson had no idea that Butler was going to rob
a bank; (4) that Butler offered Anderson gas money; (5) that Rogers did not
break into a house with Butler; (6) that Anderson tried to make Butler get out
of his car after the robbery; (7) where Anderson, Rogers, and Butler were
sitting in the car; and (8) the specific details regarding the direction Anderson
was traveling when he picked Butler up after the robbery. The district court
excluded Rogers’s interrogation video because it contained inadmissible
hearsay. The district court also found that the statements in the video were
cumulative of other evidence presented in the case.
      On appeal Anderson makes no arguments as to why the interrogation
video falls under a hearsay exception. He also abandons the arguments he
made below—that Rogers’s interrogation video was admissible as a statement
against interest or a present sense impression—and acknowledges that his
claim is foreclosed by Williamson v. United States, 512 U.S. 594, 600 (1994).
Anderson simply encourages this court to reflect upon the impact the exclusion
of this evidence had on his defense. Having considered Anderson’s position on
this issue, we perceive no error in the district court’s decision to exclude
Rogers’s interrogation video.
      iii. Evidence Related to Butler’s Mental Condition
      The district court also excluded Butler’s interrogation video and still
photographs taken from the video.       The defense sought to introduce this
evidence “so the jury could see how bizarre Butler was acting that night.” The
defense wanted the jury to see that Butler “was sleeping on the floor . . . making
strange movements and generally appeared to be in a comatose mental state.”
Anderson’s theory was that Butler’s mental condition, evinced by his abnormal
behavior on video, would show the jury that Butler acted alone and Anderson
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                                       No. 12-10979
had no knowledge of Butler’s intent to rob a bank. Anderson cites no authority
and provides no legal analysis explaining how the district court erred by
excluding the evidence.           In reviewing the district court’s decision and
reasoning, we conclude that the district court did not abuse its discretion by
excluding this evidence.
                                             D.
      During Anderson’s closing argument, his attorney directed the jury’s
attention to the indictment and argued that the government engaged in
“overreaching.” Anderson’s defense lawyer stated:
      Now, ladies and gentlemen, you’re entitled to absorb all the
      evidence in this case. Look at the indictment in this case. Who’s
      on that indictment . . . Now, look at the facts of this case. Joe
      Anderson and Teddy Rogers and Jeremy Butler. Joe Anderson and
      Teddy Rogers picked up Butler. Joe Anderson and Teddy Rogers
      went down to fill up the car with water with Mr. Butler in the back.
      Joe Anderson and Teddy Rogers left Mr. Butler standing in the
      median. Joe Anderson and Mr. Rogers picked up Mr. Butler after
      the–after the robbery took place. Joe Anderson and Mr. Rogers
      both ran from the car. All right? Joe Anderson is the one I guess
      they’re—I mean, Joe—Mr. Rogers is the one, I’m assuming, they’re
      trying to insinuate was in the house with Mr.—with Kool-Aid. 3
      Look on the indictment. Whose names appear on the indictment?
      Anderson’s defense lawyer’s point was that the government overreached
because it charged Anderson but did not charge Rogers even though Rogers
was similarly situated to Anderson. The government responded to Anderson’s
argument during its rebuttal by stating: “Teddy Rogers. Now, [Anderson’s
defense lawyer] opened the door, and this is in direct response to his argument.
Let me tell you why Teddy Rogers isn’t in the indictment.                Because he’s
incarcerated in the state looking at up to life in prison.” Anderson objected and
the district court responded to the objection by stating: “The jury will disregard


      3   “Kool-Aid” is Butler’s nickname.
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                                   No. 12-10979
that statement.” Anderson did not request and the district court did not
provide any further curative instructions in response to the government’s
comments.       Anderson also did not request a mistrial based upon the
prosecutor’s comments.
        On appeal, Anderson argues that the prosecutor’s statements regarding
Rogers facing life in prison in state court referenced facts not in evidence at
trial. Accordingly, Anderson claims that his conviction should be reversed
because the prosecutor’s comments violated his Fifth Amendment due process
rights.     Because Anderson failed to properly preserve his claim of error
regarding the prosecutor’s reference to facts not in evidence, we review this
claim only for plain error. See United States v. Salinas, 480 F.3d 750, 756 (5th
Cir. 2007). Although Anderson timely objected to the comments, the district
court sustained his objection and Anderson did not request a mistrial or a
curative instruction. Accordingly, he “effectively received all of the relief that
he requested from the district court.” Id. “When a defendant asks this court
to reverse a conviction under these circumstances, the defendant essentially
asks us to go against the implicit judgment of both the trial court and the
defendant’s trial counsel that the trial court’s corrective action was adequate
and appropriate.” Id. (citation and internal quotation marks omitted). As a
result, the challenged comments are reviewed under the plain error standard.
Id.
          “A prosecutor is confined in closing argument to discussing properly
admitted evidence and any reasonable inferences or conclusions that can be
drawn from that evidence.” United States v. Mendoza, 522 F.3d 482, 491 (5th
Cir. 2008). A prosecutor is prohibited from referring to any evidence that was
not admitted at trial.     Id.   When assessing the prejudice sustained by a
prosecutor’s improper remarks, the determinative question is whether the
remarks “cast serious doubt on the correctness of the jury’s verdict.” See
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                                 No. 12-10979
United States v. Guidry, 456 F. 3d 493, 505 (5th Cir. 2006) (citation and
internal quotation marks omitted). More specifically, there are three factors
we consider in deciding whether to reverse a conviction due to improper
comments by a prosecutor: “(1) the magnitude of the prejudicial effect of the
prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the
judge, and (3) the strength of the evidence supporting the conviction.” United
States v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1994) (citation omitted).
       “Inappropriate prosecutorial comments, standing alone, would not
justify a reviewing court to reverse a criminal conviction obtained in an
otherwise fair proceeding.” United States v. Young, 470 U.S. 1, 11 (1985). To
demonstrate reversible plain error, Anderson must show that the prosecutor’s
remarks were improper, the error was clear or obvious and the error affected
his substantial rights. See United States v. Escalante-Reyes, 689 F. 3d 415, 419
(5th Cir. 2012) (en banc). The final consideration in our plain error analysis is
“whether the error affects the fairness, integrity, or public reputation of
judicial proceedings such that the appellate court should exercise its discretion
to correct the error.”   Id. at 425 (citation and internal quotation marks
omitted).
      Anderson argues that the prosecutor’s comment during his rebuttal
argument was improper. He notes that the magnitude of the comment was
significant because it caused jurors to infer that Anderson associated with
serious offenders and therefore, was not the unsuspecting victim of being in
the wrong place at the wrong time pursuant to his defense theory. Anderson
also argues that the district court’s general instruction to the jury—that any
statements made by lawyers are not evidence—was insufficient to cure the
inflammatory effect of the prosecutor’s comments. Finally, Anderson asserts
that because the government’s proof was circumstantial and the case against
him was generally weak, his substantial rights were prejudiced by the
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                                  No. 12-10979
prosecutor’s comment. Therefore, according to Anderson, his conviction should
be reversed and the case should be remanded for a new trial.
      The government concedes that the prosecutor’s comment was improper.
However, the government claims that the comment was “minimally prejudicial
because it was responsive to the defense’s argument that Rogers’s non-
indictment should somehow result in a reasonable doubt as to Anderson’s
guilt.” The government further asserts that the comment was isolated and a
small part of a much longer rebuttal argument. Additionally, the government
argues that the district court’s instructions mitigated any harm from the
comment.      Finally, the government claims that any error was harmless
because evidence of Anderson’s guilt was substantial.
      The government correctly concedes that the comment it made during
rebuttal was improper. Although the comment may have been invited by
Anderson’s statements during his closing argument, such an invitation does
not grant the government leave to delve into evidence that was not admitted
at trial.   See United States v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir.
1999) (“While AUSA Fielden could respond to the defense attorneys’
statements in her closing argument, she cannot base her arguments on facts
not in evidence. . . .”).
             i. Prejudicial Effect of Prosecutor’s Remarks
      There are several reasons why the prosecutor’s comment—that Rogers
was not charged because he faced a life sentence in state court—could be
classified as prejudicial.    The comment provides no context for Rogers’s
potential life sentence at the state level. The jury could have inferred that
Rogers faced a life sentence for his involvement in the instant bank robbery.
Left to speculate, the jury could have concluded that Anderson’s association
with Rogers makes it more likely that he was guilty of the instant bank
robbery. Alternatively, if jurors assumed that Rogers’s potential life sentence
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                                  No. 12-10979
was not associated with the instant bank robbery, they could infer from
Rogers’s further involvement in the criminal system—for a seemingly very
serious offense—that he would also involve himself in the instant bank
robbery, and accordingly, so would Anderson. Therefore, the comment could
have had a prejudicial effect on the jurors in this case.
            ii. Cautionary Instruction
      The district court simply instructed the jury to disregard the prosecutor’s
improper comment during his rebuttal. Anderson did not request a cautionary
instruction and the district court provided no specific admonition to the jury.
Despite the fact that no specific instruction was given at the time of the
objection, the district court’s charge to the jury included the general instruction
that “any statements, objections, or arguments made by the lawyers are not
evidence.” This circuit recognizes the well-established presumption that jurors
heed the district court’s instructions. See United States v. Skelton, 514 F.3d
433, 446 (5th Cir. 2008).      Accordingly, the court’s instructions—that the
prosecutor’s comment should be disregarded and that attorneys’ arguments
are not evidence—were likely sufficient to cure any prejudice resulting from
the improper prosecutorial comment.
            iii. Strength of the Evidence Supporting Conviction
      Finally, we consider the strength of the evidence demonstrating that
Anderson was guilty of aiding and abetting bank robbery. There seemed to be
one primary dispute at trial—whether Anderson knew that Butler intended to
rob the bank and agreed to assist by driving him to and from the bank. There
was no disputing the fact that Anderson stopped his car in front of the bank;
Butler exited Anderson’s car and immediately robbed a bank; and Anderson
picked Butler up on a different street just after the bank robbery.
      Although there was arguably very little direct evidence of Anderson’s
intent to participate in the bank robbery, the circumstantial evidence was
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                                 No. 12-10979
substantial.     The jury reasonably concluded that it was more than a
coincidence that Anderson’s car stopped—for whatever reason—in front of the
bank. The fact that just after the bank robbery Butler ran directly to the street
where Anderson was driving slowly also appears to be more than a coincidence.
Additionally, Anderson’s decision to evade the police by running away, at the
same time as Butler and Rogers, suggests that he had a guilty conscience.
Anderson was also evasive of the investigator’s questions during his
interrogation. His story changed several times and he admitted that he was
not being completely up front at the start of the interview. All of these facts
demonstrate that the government’s evidence was strong at trial.
               iv. Conclusion
      Balancing the three factors, we conclude that under a plain error
analysis, the prosecutor’s improper comment does not necessitate reversal of
Anderson’s conviction. It is important to note that the comment actually had
nothing to do with Anderson.       Instead, the comment was related to an
unindicted person who may or may not have been involved in the commission
of the bank robbery. Furthermore, the jury was instructed to disregard the
improper comment and the district court, on multiple occasions, explained that
the lawyers’ comments were not evidence. Therefore, the jury is presumed to
have disregarded the comment and exercised restraint in not relying on it as a
reason to find Anderson guilty. Finally, as discussed above, the evidence
presented to the jury—excluding the improper comment—was more than
sufficient to convict Anderson of aiding and abetting bank robbery.
                                       E.
      Anderson also argues that the cumulative effects of the alleged errors
committed at trial warrant reversal of his conviction. Under the cumulative
error doctrine, “relief may be obtained only when constitutional errors so
fatally infect the trial that they violate the trial’s fundamental fairness.”
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                                  No. 12-10979
United States v. Alaniz, 726 F.3d 586, 628 (5th Cir. 2013) (citation and internal
quotation marks omitted).
      This court has recognized that “the cumulative effect of a series of errors
may require reversal, even though a single one of those errors, standing alone,
would not require such a result.” United States v. Villarreal, 324 F.3d 319, 328
(5th Cir. 2003) (citation omitted). “The doctrine justifies reversal only in the
unusual case in which synergistic or repetitive error violates the defendant’s
constitutional right to a fair trial.” United States v. Delgado, 672 F.3d 320, 344
(5th Cir. 2012). This is “a rarity.”     Villarreal, 324 F.3d at 328 (citations
omitted); see also Delgado, 672 F.3d at 344. In the event that errors were
committed, reversal is not always warranted because “the Constitution does
not guarantee a perfect trial, only one that is fair.” United States v. El-Mezain,
664 F.3d 467, 535 (5th Cir. 2011); see also United States v. Isgar, 739 F.3d 829,
841–42 (5th Cir. 2014).
      Only one error was committed at trial—the prosecutor’s reference to
facts not in evidence. Accordingly, we conclude that the cumulative error
doctrine is inapplicable to this case.
                                         F.
      Anderson filed two separate motions for a new trial: one on September
4, 2012 and another on September 21, 2012. The September 4th motion argued
that a new trial was warranted due to newly discovered evidence regarding
inmates who claimed that Butler told them that Anderson was not involved in
the bank robbery in any fashion. The September 21st motion argued that a
new trial was warranted because subsequent to the trial, Butler was allegedly
found incompetent to stand trial. The district court denied both motions.
      “A district court’s decision to grant or deny a motion for new trial
pursuant to Rule 33 is reviewed for an abuse of discretion.” United States v.
Wall, 389 F.3d 457, 465 (5th Cir. 2004) (citation omitted). This standard is
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                                  No. 12-10979
deferential to the trial court as the purveyor of the evidence presented at trial.
Id. “Questions of law are reviewed de novo. On mixed questions of law and
fact, this court reviews the underlying facts for abuse of discretion, but the
conclusions to be drawn from those facts de novo.” Id. (citation omitted)
      Federal Rule of Criminal Procedure 33 permits a district court to “vacate
any judgment and grant a new trial if the interest of justice so requires.” Fed.
R. Crim. P. 33. This court generally disfavors granting motions for new trials
based upon newly discovered evidence. Wall, 389 F.3d 467. There are five
prerequisites that must be satisfied to justify a new trial on that basis:
      (1) the evidence is newly discovered and was unknown to the
      defendant at the time of trial; (2) the failure to detect the evidence
      was not due to a lack of diligence by the defendant; (3) the evidence
      is not merely cumulative or impeaching; (4) the evidence is
      material; and (5) the evidence if introduced at a new trial would
      probably produce an acquittal.
Id. (citation omitted). The defendant is required to prove each element in order
to prevail. Villarreal, 324 F.3d at 325. This circuit has acknowledged that “a
motion for new trial may not be based on inadmissible evidence.” Wall, 389
F.3d at 470–71 (citing United States v. Parker, 903 F.2d 91, 102–03 (2d Cir.
1990); United States v. MacDonald, 779 F.2d 962, 964 (4th Cir. 1985)).
      i. September 4th Motion for New Trial
      The September 4th motion is based upon several inmates’ statements
alleging that Butler told them that Anderson was unaware of his plan to rob a
bank. Anderson argues that the inmates’ testimony undermines the verdict in
this case. He argues that “the only basis for the jury to return a guilty verdict
was that they did not believe Anderson that he had no idea Butler was
planning on robbing a bank.” Therefore, according to Anderson, reversal is
warranted.    We disagree.    The newly discovered evidence that Anderson
proffers in his September 4th motion for new trial constitutes inadmissible

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                                   No. 12-10979
hearsay. This court has acknowledged that a new trial should not be granted
based upon newly discovered evidence that would be inadmissible at trial. See
Wall, 389 F.3d at 470–71. Accordingly, we conclude that the district court did
not abuse its discretion by denying Anderson’s September 4th motion for a new
trial.
         ii. September 21st Motion for New Trial
         The September 21st motion is based upon the allegation that subsequent
to Anderson’s trial, Butler was found incompetent to stand trial for his role in
the instant bank robbery.        There are several reasons why Anderson’s
arguments on this issue are unpersuasive.           We note—for the purpose of
context—that the pivotal issue in this case was Anderson’s knowledge and
intent at the time of the offense. Anderson’s arguments at trial and briefing on
appeal suggest that he has a far more expansive view of what information is
relevant to what—by all accounts—was the ultimate issue at trial. Anderson’s
view is misguided.
         Butler’s competency to stand trial had little relevance to his mental
condition on the day of the offense, and, more importantly, the implications of
his condition on Anderson’s knowledge and intent to aid and abet bank
robbery. The competency evaluation at issue was performed to determine
whether Butler was competent to proceed with a trial or guilty plea—not
whether his decision to commit a bank robbery was a result of mental illness.
          Moreover, further evidence of Butler’s mental condition was likely
cumulative. Similar information was presented to the jury through Anderson’s
statements during his interrogation video and through the testimony of an
inmate who observed Butler on the day of the offense. Anderson was given
leave to argue to the jury at length about Butler’s mental problems and his
unpredictable behavior. Anderson is unable to demonstrate how additional
information regarding Butler’s competency would assist the jury in deciding
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                                 No. 12-10979
whether Anderson aided and abetted Butler in the commission of the bank
robbery.   Accordingly, we conclude that the district court did not abuse its
discretion by denying Anderson’s September 21st motion for a new trial.
                                       G.
      Anderson also challenges on appeal the district court’s finding that his
prior burglary conviction under Texas Penal Code Ann. § 30.02 qualified as a
crime of violence for the purpose of categorizing him as a career offender
pursuant to U.S.S.G. § 4B1.1. Before sentencing, Anderson objected to the
PSR’s classification of his prior burglary conviction as a crime of violence. We
review a district court’s interpretation of the U.S.S.G. de novo. United States
v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004) (en banc) (per curiam).
Under U.S.S.G. § 4B1.1(a), a defendant is a “career offender” and subject to an
enhanced sentence if:
      (1) the defendant was at least eighteen years old at the time [he]
      committed the instant offense of conviction; (2) the instant offense
      of conviction is a felony that is either a crime of violence or a
      controlled substance offense; and (3) the defendant has at least two
      prior felony convictions of either a crime of violence or a controlled
      substance offense.
United States v. Garcia, 470 F.3d 1143, 1146 (5th Cir. 2006) (citation omitted).
For purposes of this section of the Guidelines, a crime of violence is any state
or federal offense punishable by a term of imprisonment exceeding one year
that: “(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or (2) is burglary of a dwelling,
arson, or extortion, . . . or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” Id. at 1146–47 (citing U.S.S.G.
§ 4B1.2(a)(1)-(2)) (internal quotation marks omitted). The court should focus
on the elements of the offense derived from the statute of conviction and not
the particular conduct that led to the defendant’s conviction. Id. at 1147.

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                                 No. 12-10979
      When a statute can be violated in a way that constitutes a crime of
violence and in a way that does not, the court is free to review other judicial
documents to make its determination as to the appropriate classification. See
United States v. Garcia-Arellano, 522 F.3d 477, 480–81 (5th Cir. 2008). These
documents include the indictment, judicial confession, and the district court’s
judgment. See id. at 481.
      Anderson argues that his prior burglary conviction does not qualify as a
crime of violence because there are several methods by which a defendant may
commit a burglary under Texas Penal Code Ann. § 30.02, and at least one of
the methods does not satisfy the requirements of generic burglary. Anderson
notes that there is no document that indicates which subsection of § 30.02 he
violated.   Therefore, Anderson claims that his burglary conviction cannot
qualify as a crime of violence under U.S.S.G. § 4B1.1.        We disagree and
conclude that the district court did not err by finding that Anderson’s prior
burglary conviction qualifies as a crime of violence.
      This determination largely depends upon whether the district court
correctly found, by reference to permissible documents, that Anderson pleaded
guilty to committing burglary in the generic sense—that is by entering a
dwelling without permission with the intent to commit a crime therein. In
Anderson’s judicial confession related to the prior burglary, he admitted to
committing the offense as alleged in the indictment. His indictment included
language from both Texas Penal Code Ann. § 30.02(a)(1) and § 30.02(a)(3). We
have held that a conviction under subsection (a)(1) qualifies as a crime of
violence because it is equivalent to the enumerated offense of generic burglary.
United States v. Garcia-Mendez, 420 F.3d 454, 456–57 (5th Cir. 2005).
However, subsection (a)(3) is not equivalent to the enumerated offense of
burglary because a violation of subsection (a)(3) does not require proof of the
defendant’s intent to commit a crime in the dwelling. Having reviewed the
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                                No. 12-10979
permissible documentation that accompanied the adjudication of the prior
burglary conviction, we conclude that it qualifies as a crime of violence.
Anderson admitted in his judicial confession that he entered his victim’s home
without consent with the intent to commit a theft. Therefore, the judicial
confession makes clear that Anderson pleaded guilty to an offense that meets
the elements of generic burglary. The district court properly treated this
conviction as a crime of violence. Accordingly, we conclude that the district
court did not err in finding that Anderson was a career criminal.
                               III. CONCLUSION
      For the foregoing reasons, we affirm Anderson’s convictions and
sentence.




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