                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  January 7, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk

                             03-10633



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus


                         LANA ST. MARTIN,

                                                 Defendant-Appellant.



           Appeals from the United States District Court
             for the Northern District of Texas, Dallas
                  Nos. 3:02-CR-175 and 3:01-CR-246


Before REAVLEY, DAVIS AND WIENER Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:*

     In this direct criminal appeal Lana St. Martin (“St.

Martin”) challenges her conviction and sentence on a number of

grounds.   We find no merit to any of St. Martin’s arguments and

AFFIRM.

                                I.

     St. Martin was charged along with Anthony B. Benavides

(“Benavides”) and Elizabeth P. Johnston with conspiring to murder


     *
      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this opinion should not be published and is not precedent except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.
John D. Johnston for the proceeds of a $500,000 life insurance

policy to which Elizabeth Johnston was the primary beneficiary.

The indictment also charged that, following the murder, Elizabeth

Johnston obtained the proceeds of the policy fraudulently and

transferred $289,000 of the proceeds to St. Martin and Benavides.

     On the same day that the original indictment was filed, St.

Martin, Benavides, and Robert Martinez were named in a separate

indictment charging them with securities fraud, wire fraud, and

engaging in monetary transactions involving property derived from

unlawful activity.   The indictment charged the defendants with

providing fraudulent information to potential investors to entice

them to invest money in Stadtt Media, L.L.C., in which the three

defendants were officers.

     The government moved to consolidate the two indictments for

trial under Federal Rule of Criminal Procedure 13, on grounds

that the counts “could have been joined in a single indictment”

under Rule 8 of the Federal Rules of Criminal Procedure.   In the

certificate of conference, the Assistant U.S. Attorney

represented that St. Martin’s counsel had been consulted and did

not oppose consolidation.   The government provided the court a

factual basis connecting the two cases.2   The district court

     2
      The government submitted the following factual synopsis of
the two charges:
          [T]he government will present evidence that
     Benavides and St. Martin entered into a conspiracy to
     murder John D. Johnston with the objective to
     fraudulently obtain the proceeds from his life

                                 2
agreed to try the cases together.

     The matter went to trial before a jury, and St. Martin was

convicted on all counts.3    At sentencing, St. Martin moved for a

downward departure from a mandatory life sentence based on her

serious medical condition.    The district judge denied the

downward departure based on his belief that the court did not

have the authority to depart below the statutory minimum sentence



     insurance policy. Following his murder during May
     1999, they received approximately $290,000 of the
     insurance proceeds which they divided between
     themselves. These facts form the gravamen of the
     charges in the [murder-for-hire] case. (Continued)

          In the [securities-fraud] case, the government
     will present evidence that money obtained from the
     Johnston insurance policy was immediately used to
     establish Stadtt Media and carry on a fraudulent scheme
     to [i]nduce individuals to invest money with Benavides
     and St. Martin.. It was misrepresented to potential
     investors that...Benavides and St. Martin were wealthy
     and had obtained the money to sta[r]t Stadt[t] Media by
     selling a “dot-com” compa[n]y which they had started
     and made suc[c]essful. They also misrepresented their
     backgrounds and used the insurance proceeds as “flash
     money” to promote their image.

          From an evidentiary standpoint, the two
     conspirac[ies] are closely connected and overlap. The
     proceeds from the murder were used to finance the fraud
     conspiracy. Moreover, evidence of their true
     background and source of their funds, the murder, will
     clearly be admissible in the fraud case to show the
     falsity of their representations regarding their prior
     success and background.
     3
      On appeal, St. Martin has not challenged the sufficiency of
the evidence to support her conviction nor has she challenged the
government’s summary of the evidence presented in the trial
record. Thus, we will discuss the facts only as needed to
address the issues presented on appeal.

                                  3
for the offense.   The district court sentenced St. Martin to life

imprisonment on the murder-for-hire count and to 120 months

imprisonment for the securities-fraud count, with the sentences

to run concurrently.   St. Martin timely filed a notice of appeal,

raising a number of issues which we discuss below.



                                  II.

     A.   Consolidated Offenses

     St. Martin first argues that the district court erred in

consolidating the securities-fraud charge with the murder-for-

hire charge for trial pursuant to Federal Rule of Criminal

Procedure 13.4   She contends both that the two charges cannot be

properly joined under Rule 13 and the substantive rules of

joinder found in Rule 8,5 and, in the alternative, that joining

the offenses improperly prejudiced her case in violation of Rule




     4
      Rule 13 of the Federal Rules of Criminal Procedure
provides:
          The court may order that separate cases be tried
     together as though brought in a single indictment or
     information if all offenses and all defendants could
     have been joined in a single indictment or information.
     5
      Rule 8 of the Federal Rules of Criminal Procedure provides
in pertinent part:
          (a) Joinder of Offenses. The indictment or
     information may charge a defendant in separate counts
     with 2 or more offenses if the offenses charged...are
     of the same or similar character, or are based on the
     same act or transaction, or are connected with or
     constitute parts of a common scheme or plan.

                                   4
14.6.       She neither opposed the government’s motion to consolidate

the two indictments nor moved before trial to sever the two

indictments.

        Any form of joinder not explicitly permitted by the terms of

Rule 8 is referred to as “misjoinder.”7       A defendant objects to

“misjoinder” by filing a Rule 8 objection.8       Because objections

to misjoinder are “objections based on defects in the

indictment,” under Rule 12(b)(3)(B),9 a defendant who fails to

object to “misjoinder” prior to trial waives his objection




        6
      Rule 14 of the Federal Rules of Criminal Procedure provides
in pertinent part:
          (a) Relief. If the joinder of offenses or
     defendants in an indictment, an information, or a
     consolidation for trial appears to prejudice a
     defendant or the government, the court may order
     separate trials of counts, sever the defendants’
     trials, or provide any other relief that justice
     requires.
        7
      See 24 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL PRACTICE §
608.04[2] (3d. ed. 2004) (Any form of joinder not explicitly
permitted by the terms of Rule 8 is “misjoinder.”)
        8
      See 25 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL PRACTICE §
614.02[1] (3d. ed. 2004) (If there is any question about the
propriety of the joinder, the appropriate motion is one based on
misjoinder pursuant to Rule 8.)
        9
      Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure
provides in pertinent part:
          (b) Pretrial Motions.
               (3)Motions That Must Be Made Before Trial.
                    (B) a motion alleging a defect in the
     indictment...

                                     5
pursuant to Rule 12(e).10

     Offenses properly joined under Rule 8 may still be

challenged as “prejudicially joined” by use of a Rule 14 motion

to sever.11   Because the Rule 14 motion is listed as one of the

motions that “must be brought before trial,” it too can be

waived.   FED. R. CRIM. P. 12(b)(3)(D)12; FED. R. CRIM. P. 12(e).13

     We must first determine the proper standard of review for

St. Martin’s joinder arguments.     The government contends that no

review is necessary because St. Martin invited any error that was

committed.    The government argues that the “certification of

conference” that accompanied its motion to consolidate the cases

demonstrates that the prosecutor conferred with defense counsel


     10
      See United States v. Mann, 161 F.3d 840, 861-862 (5th Cir.
1998); 24 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL PRACTICE §
608.04[2] (3d. ed. 2004) (Objections on the ground of
misjoinder...are based on a “defect in the indictment or
information” within the meaning of Rule 12(b)(3)).
     11
      See 25 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL PRACTICE §
614.02[1](3d. ed. 2004) (A motion for severance under Rule 14
will be considered only if the indictment or information complies
with Rule 8.).
     12
      Federal Rule of Criminal Procedure 12(b)(3)(D) provides in
pertinent part:
     (b) Pretrial Motions.
          (3) Motions That Must Be Made Before Trial.
                (D) a Rule 14 motion to sever charges...

     13
      Federal Rule of Criminal Procedure 12(e) provides in
pertinent part:
                (e) Waiver of a Defense, Objection, or
     Request. A party waives any Rule 12(b)(3) defense,
     objection, or request not raised by the deadline the
     court sets under Rule 12(c)...

                                   6
who had no objection to trying the securities fraud and murder-

for-hire charges together.    In addition, the government argues

that, by suggesting at a status conference that the two charges

be joined in one indictment, the defendant caused the two charges

to be tried together.14

     Our cases hold that a party may not “invite error and

complain thereof.”15   We therefore must decide whether St. Martin

invited error in this case.    The “certification of conference”

attached to the government’s motion to consolidate the charges

does not demonstrate invited error, but rather shows that the

defendant failed to object to the charges being consolidated.16

The same cannot be said for the pretrial conference, however, in

which St. Martin’s attorney affirmatively requested that the two

charges be consolidated.17    Though St. Martin never expressly


     14
      St. Martin did not address the issue of invited error in
her briefs to this court or attempt to explain her attorney’s
suggesting to the court the idea of consolidating the murder-for-
hire and securities fraud charges into a single indictment at the
August 28, 2002, pretrial conference.
     15
      United States v. Baytank, Inc., 934 F.2d 599, 606 (5th Cir.
1991); see also United States v. Solis, 299 F.3d 420, 452 (5th
Cir. 2002)([a] defendant cannot complain on appeal of alleged
errors which he invited or induced...).
     16
      The Certification of Conference provides:
          I have spoken to the attorneys of record for
     defendant St. Martin and can advise the Court that they
     do not oppose the requested transfer and do not oppose
     consolidation of these cases. R. 3, 61. (Emphasis
     added).
     17
      At the August 28, 2002, pretrial conference, Tom Mills,
attorney for the defendant St. Martin, had the following exchange

                                  7
requested that the two charges be tried together, a joint trial

was the obvious consequence of counsel’s request to have the

charges consolidated.   She therefore invited any potential

joinder error in this case.

     St. Martin also waived her ability to receive substantive

relief from this court on her joinder arguments.   As stated

above, both Rule 8 objections to “misjoinder” and Rule 14 motions

to sever for “prejudicial joinder” come within the scope of Rule

12(b)(3) and 12(e), and therefore must be filed before trial or

are waived.   In United States v. Mann, 161 F.3d 840, 862 (5th

Cir. 1998), we held that when a party fails to file either a Rule

8 or Rule 14 objection before trial and fails to provide adequate

justification, “we need not even address the merits of their

argument.”

     In this case, St. Martin does not provide any excuse for her

failure to object to the consolidation of the securities fraud


with the trial judge:
          Mr. Mills:      Would there be any benefit, and is
                          it even possible, rather than have
                          two indictments, which is I guess
                          somewhat more prejudicial against
                          the defendant than one indictment,
                          is there any way that the
                          securities counts could be put into
                          your superceding indictment?
          The Court:      So from your perspective you would
                          rather have the one indictment and
                          read all the different counts?
          Mr. Mills:      Yes, I think so...It is a little
                          bit unusual to have two, especially
                          when you have a murder case and a
                          securities fraud case. (R. 6, 6).

                                 8
and murder-for-hire offenses for trial.     She has therefore waived

her objection and can get no relief from this court on this

issue.

     B.     Limitation on Cross-Examination of Benavides

     St. Martin next argues that the district court erred by not

allowing her attorney to inquire on cross-examination into

Benavides’s desire to avoid a death sentence as motivation for

assisting the government and testifying against her.      The

district judge set guidelines for cross-examination in an oral

ruling on the first day of trial.     R. 8, 106-110.18   During the

hearing, the government argued that because the Attorney General

had never approved the death penalty for Benavides, he never

faced death as a possible punishment.     No evidence was presented

at the hearing that Benavides believed that he would face the

death penalty when he entered into plea negotiations and agreed

to help the government.    The available evidence is to the

contrary.    First, the plea agreement itself provides that



     18
      The district court also reasoned that it did not want St.
Martin to question Benavides regarding a potential death sentence
because of the possibility that the jury might conclude that,
because St. Martin and Benavides were charged with the same
offense, St. Martin may face the death penalty if convicted. The
court appears to have been concerned that this would adversely
affect the jury’s ability to determine guilt or innocence in St.
Martin’s case. St. Martin argues that these considerations are
insufficient to limit her ability to fully cross-examine an
adverse witness. This argument might have some merit if there
was any evidence that Benavides ever believed he was subject to
the death penalty. As stated above, no evidence supports this
contention and therefore this argument must also fail.

                                  9
Benavides faced a maximum penalty of life in prison.      Second, at

the hearing the district judge agreed with the government that it

was his understanding that the Attorney General never agreed to

allow prosecutors to seek the death penalty in Benavides’s case.

R. 8, 108.     St. Martin never produced any evidence challenging

any of these statements.

     We review a district court’s limitation on the scope of

cross-examination for abuse of discretion.19     Under Federal Rule

of Evidence 611(a), the district court has the discretion to

limit cross-examination subject to the Sixth Amendment.      The

record reveals that, except for prohibiting cross-examination on

Benavides’s desire to avoid the death penalty, counsel was given

broad latitude to cross-examine Benavides, including all of the

possible benefits he received from the plea bargain.      Because the

record supports the district court’s conclusion that Benavides

did not believe he faced the death penalty when he made his plea

bargain, the district court did not abuse its discretion in the

limit it placed on Benavides’s cross-examination.

     C.      Admission of Character Evidence

     St. Martin next argues that the district court erred in

admitting extrinsic act character evidence under Federal Rule of




     19
          See United States v. Alexius, 76 F.3d 642, 644 (5th Cir.
1996).

                                   10
Evidence 404(b).20     St. Martin concedes that she lodged no

objection to this evidence, and we are limited to plain error

review.21

     We apply a two-pronged test to determine the admissibility

of evidence under Rule 404(b).      First, the evidence must be

“relevant to an issue other than the defendant’s character.”22

Second, the evidence must have probative value that is not

substantially outweighed by undue prejudice and must be

“otherwise admissible” under Rule 403.23

                                   1.

     St. Martin first challenges the district court’s rulings

allowing several witnesses to testify about the numerous

expensive luxury items she demanded and purchased after the

murder and while Stadtt Media was being financed.      She argues

that this evidence improperly conveyed to the jury that she was



     20
          Federal Rule of Evidence 404(b) provides in pertinent
part:
          (b)Other Crimes, Wrongs, or Acts.-Evidence of
     other crimes, wrongs, or acts is not admissible to
     prove the character of a person in order to show action
     in conformity therewith. It may, however, be
     admissible for other purposes, such as proof of motive,
     opportunity, intent, preparation, plan, knowledge,
     identity, or absence of mistake or accident...
     21
          See United States v. Avants, 367 F.3d 433, 446 (5th Cir.
2004).
     22
      United States v. Beechum, 582 F.2dd 898, 911 (5th Cir.
1978)(en banc).
     23
          Id.

                                   11
greedy or “money grubbing.”24    Testimony from employees of Stadtt

Media focused on St. Martin’s use of funds from the company’s

swindled investors.    She concedes that this testimony was

admissible to show that she was knowingly involved in the

fraudulent securities scheme, but argues it was unduly

prejudicial because it made her seem like a person more likely to

commit murder-for-hire.

     St. Martin does not contest the fact that testimony from

Benavides regarding how she used the insurance money from the

murder was relevant to establish that she was a member of the

murder-for-hire conspiracy.     Thus, testimony regarding both her

use of the insurance proceeds and testimony regarding her use of

the investor funds are relevant to issues besides her character.

     At trial, Benavides testified regarding St. Martin’s desire

to use the murder proceeds to purchase expensive items and her

acquiring many of those items after collecting the insurance

money.    So, although the testimony from the Stadtt Media

employees may have added to the jury’s perception of St. Martin



     24
      She specifically challenges virtually all of the testimony
of Gary Stephens, an employee of Stadtt Media, who testified that
St. Martin repeatedly sought to use the funds of Stadtt Media for
personal purchases of automobiles and jewelry. She also
challenges the testimony of Jose Garcia, Benavides’s hired
bodyguard, who testified that he brought her money on several
occasions and that he once took her shopping. St. Martin also
contends that the district court erred in admitting the testimony
of James Wilson, a lawyer hired by Stadtt Media, who testified
that she used investor funds to purchase numerous expensive
personal items.

                                  12
as a greedy person, given the bountiful evidence of her greed

regarding both the murder and the securities fraud, the district

court did not commit error -plain or otherwise- in admitting this

testimony.

                               2.

     St. Martin also asserts that the district court erred in

admitting testimony that, after the murder, she wanted to

purchase a handgun with a sound suppressor and bragged that she

was familiar with how to use a handgun.   She contends that this

testimony was unduly prejudicial character evidence seeking to

show she had a propensity to commit murder.   We disagree.   This

evidence is relevant to something other than her character: the

evidence tended to establish her knowledge of how to operate a

handgun, the same type of weapon used in the murder.   Further,

any potential prejudice St. Martin suffered from the admission of

this evidence does not substantially outweigh the high probative

value of evidence showing that she was competent enough with

handguns to use one to shoot John Johnston.   Thus, the district

court did not err in admitting this testimony.

                               3.

     St. Martin also argues that the district court improperly

admitted evidence that she was a topless dancer.   We agree with

the government that the district court did not err in admitting

this evidence because the defense discussed St. Martin’s working

as a topless dancer in their opening statement as evidence that

                               13
she had lived in very difficult circumstances.

     D.   Bathroom Dash Testimony

     St. Martin next argues that the district court abused its

discretion in allowing testimony from a police detective that she

reacted with surprise and dismay and ran into the bathroom at the

sight of a prosecution witness.    At trial, St. Martin objected

that the testimony was irrelevant.     Her attorney elicited an

admission from the detective on cross-examination that St. Martin

may have run to the bathroom because she was physically ill.

Even if the admission of this evidence was error (which is

doubtful), given the minor nature of this testimony in this

eight-day trial, the admission of this evidence was harmless.25

     E.   Handwriting Testimony

     St. Martin also argues that the district court abused its

discretion in admitting the testimony of a rental car agency

manager that the writing on a notepad found in a car used by St.

Martin and Benavides appeared to have been written by a female.26

St. Martin objected that the testimony was inadmissible lay


     25
      See United States v. Edwards, 303 F.3d 606, 623 (5th Cir.
2002) (Erroneous admission of testimony does not warrant reversal
because it amounts to harmless error.).
     26
      The manager testified that the handwritten list contained
an itemization of expensive items and their accompanying prices.
For example, the list included $10,000 for surgery and $5,000 for
a shopping spree. The actual list was never put into evidence.
R. 14, 711-712. In his testimony, Benavides also recounted he
and St. Martin’s discussions regarding her intention to use the
insurance money from the murder to purchase several expensive
personal items.

                                  14
opinion, arguing that the manager needed to be qualified as an

expert to testify about the possible gender source of

handwriting.

     The court overruled St. Martin’s objection after being

satisfied that the government had properly laid the foundation

that the manager’s experience with signatures as a part of his

everyday ten-year career in auto rentals made his ability to

discern gender from handwriting proper lay opinion.    This

testimony was an unimportant part of this witness’s contribution

to this case.    The manager also testified that he rented the car

to St. Martin and Benavides, and that he found both of their

driver’s licenses in the center console when he repossessed the

vehicle.   This evidence firmly tied them to the vehicle used in

the murder.    We cannot say that the district court abused its

discretion in admitting this evidence.    Even if there was error

in admitting this evidence, it was harmless error.27

                                III.

     St. Martin argues finally that the district court erred in

denying her motion for a downward departure on the murder-for-

hire count because the court mistakenly believed that it had no

authority to depart below the minimum sentence of life in prison


     27
      St. Martin also argues that, although the individual
instances of evidentiary errors might be harmless, in the
aggregate they amount to reversible error. Because St. Martin
has failed to show any substantive individual instances of error,
we also conclude that her evidentiary challenges cannot aggregate
to constitute reversible error.

                                 15
without a motion from the government.      We have jurisdiction to

review a district court’s refusal to depart downward if the

record shows that the district court misunderstood the scope of

its authority to depart from the guidelines.28

     18 U.S.C. § 1958(a) provides that if death results from a

murder-for-hire plot, the offender “shall be punished by death or

life imprisonment, or shall be fined not more than $250,000, or

both.”     At trial and on appeal, St. Martin argues that this

language allows a judge to impose only a fine for violating §

1958, thereby giving the district court the discretion to depart

downward.

     The Second Circuit Court of Appeals has rejected a similar

challenge to identical language contained in 18 U.S.C. §

1959(a)(1), the murder-in-aid-of-racketeering statute.29     The

Second Circuit rejected the argument that Congress intended to

allow a district court to reject either death or life in prison

in favor of a fine alone.30     We find this reasoning compelling,

and reject St. Martin’s argument that the district court

erroneously believed it could not grant a downward departure.

                                   IV.



     28
      See United States v. Cothran, 302 F.3d 279, 290-291 (5th
Cir. 2002).
     29
          See United States v. James, 239 F.3d 126-127 (2nd Cir.
2000).
     30
          Id.

                                   16
     For the reasons stated above, we AFFIRM St. Martin’s

conviction and sentence.




                               17
