     Case: 09-60854 Document: 00511416307 Page: 1 Date Filed: 03/18/2011




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

                                                 FILED
                                                                           March 18, 2011
                                       No. 09-60854
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

v.

HASSON CHANDLER, also known as Hice; ZAKIYA ONEAL,

                                                   Defendants-Appellants.


                   Appeals from the United States District Court
                      for the Northern District of Mississippi
                              USDC No. 1:08-CR-83-4


Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
PER CURIAM:*
       At issue is whether the evidence at trial was sufficient for a reasonable
jury to find Hasson Chandler and Zakiya Oneal guilty of conspiracy. In addition,
Oneal appeals her sentence, arguing that the district court clearly erred by
applying a four-level enhancement based on a finding that she was the
“organizer or leader” of the group. We AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                            I
       Hasson Chandler, Zakiya Oneal, and three other co-defendants were
charged in a multi-count amended indictment with conspiracy to travel in
interstate commerce “to commit crimes of violence, to wit, bank robbery,
attempted bank robbery, kidnapping, attempted kidnapping, and extortion.”
The indictment also charged Oneal with extortion and charged Chandler with
attempted bank robbery, attempted kidnapping, traveling in interstate
commerce to commit a crime of violence, namely extortion, and possession of a
firearm during and in relation to a bank robbery.
       The three other co-defendants pleaded guilty to various charges of the
indictment and testified against Chandler and Oneal at the ensuing jury trial.
Specifically, Jose Brown pleaded guilty to attempted bank robbery and
possession of a firearm; Vincent Farley pleaded guilty to attempted bank
robbery and possession of a firearm; and Cierra Nations pleaded guilty to
conspiracy to commit bank robbery and kidnapping.
       After a jury trial, the district court entered a directed verdict of acquittal
in favor of Chandler with respect to the bank robbery charge.1 The jury found
Chandler and Oneal guilty of the conspiracy count and not guilty as to the
remaining counts. The following evidence was introduced at the trial relevant
to the conspiracy count.
       Columbus, Mississippi trip
       On June 22, 2008, Oneal, Farley, and Brown drove from Tuscaloosa,
Alabama, to Columbus, Mississippi, and then to the home of Butch Dollar, a


      1
          Chandler contends that since the jury acquitted him of attempted bank robbery, he
cannot be guilty of conspiracy to commit that same crime. However, Chandler was acquitted
of a different bank robbery—the one in Columbus— than the one that forms the basis of the
conspiracy conviction—the one in West Point. The government mistakenly charged Chandler
with attempting to rob the bank in Columbus, a scheme he had no part in. The conspiracy
count in the indictment did not name a specific bank, so the government was still able to
proceed on that count without reindictment.

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local banker. According to her roommate Rashonda Bolden, Oneal had traveled
to Columbus with the intention of robbing a bank. Her plan had been for her
and “her friends” to enter the banker’s house under false pretenses, cut the
banker's phone lines, kidnap the banker and his wife, take them to the bank,
and force the banker to open the bank vault. The banker and his wife would
then be left in the vault.
      However, Brown testified that Oneal told him that they were going to
Dollar’s house to pick up bond money for her bondsman. Brown accompanied
Oneal into the house while Farley remained in the car. At Oneal’s direction,
Farley parked the car on a side street. Oneal was able to enter Dollar’s house
by pretending to have financial documents from Dollar’s son’s friend that she
needed to deliver to Dollar. Brown went to the bathroom while Oneal spoke
with Dollar and showed him an envelope that was supposed to contain the
financial documents. When Dollar noticed the envelope was empty, Oneal
explained that she must have left the documents on a desk at home, and she,
along with Brown, left the house. After they left, Dollar noticed that the
window in the bathroom had been opened. A few minutes later, Dollar, who
had become suspicious of Oneal and Brown, went outside to get some of his
belongings, including a pistol, from his truck. He saw Oneal and Brown
standing across the street, and he asked them if they needed a ride. They
declined his offer and turned to walk away. Dollar retrieved his pistol from the
truck and returned to the house.
      Bolden testified that Oneal decided not to follow through with her plan
when she saw that the banker had a gun. Bolden said that she did not
immediately tell the police about Oneal’s plan because Oneal said “stuff . . . all
the time[,]” and Bolden did not believe Oneal.
      West Point, Mississippi trip




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      The following night, on July 23, 2008, while drinking at the Cheap Shots
bar in Tuscaloosa with Brown and Farley, Oneal discussed another plan to
stage a kidnapping and bank robbery. They agreed to go to West Point,
Mississippi, to the home of a banker named Peter Hodo, have Hodo take them
to the bank where he worked, and open the safe. Oneal told the others that
Hodo was a participant in the plan. According to Brown, Oneal also told them
that Hodo had a wife, that the wife did not know about the plan, and that Hodo
wanted them to make the robbery look real to his wife. Oneal told Brown and
Farley that they would get millions of dollars from the bank.
      The plan involved a fourth conspirator, Cierra Nations, knocking on
Hodo’s door and saying that her car had broken down. Farley believed Nations
was chosen to knock on the door because she was white and would draw less
attention in Hodo’s neighborhood. After Nations knocked on the door, Hodo
would come out to the car, and they would then all proceed to the bank. Brown
testified that, if Hodo’s wife was at the house when they got there, Brown and
Farley would take the wife captive, and tie her up using duct tape. Brown also
testified that if Hodo’s wife did not cooperate, they were going to take her to the
bank with them, whether she wanted to go or not. Farley testified that they
came up with the specifics of how to make the robbery look real for the wife
while they were at Bolden’s house on July 24, 2008.
      On July 24, 2008, before the plan could be implemented, Oneal was
arrested and detained by a bail bondsman. She contacted the others and
instructed them to proceed with the plan. Brown went to the bail bondsman’s
office to meet with Oneal sometime that evening and to retrieve Oneal’s cell
phone, which was supposed to have a map to Hodo’s house on it. When Brown
found no map on the phone, Oneal gave him the address, and he went to
Bolden’s house to print a map off of Bolden’s computer. Needing a dependable
car to get from Tuscaloosa to West Point, Brown and Farley recruited Chandler,


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who agreed to the use of his car and to participating in the plan. Brown told
Chandler the plan was a “staged heist.” Nations testified that the plan was
discussed more than one time in more than one location, that Chandler was
present when the plan was discussed, and that he agreed to the plan. Nations
also stated that when they got in the car to go to West Point, everyone in the car
knew about the plan and what was going to happen when they got to West
Point.
      Later that night, Brown, Farley, Nations, and Chandler left Tuscaloosa
en route to West Point. They brought with them a loaded 9mm pistol that they
had obtained from a pawn shop earlier that day, ski masks, and duct tape.
Brown testified that they brought the gun to make Hodo’s wife think the
robbery was real. Farley also stated that they brought the gun to show to the
wife if she did not cooperate. They also had ski masks to hide their identity and
duct tape to tie up the banker and his wife. Nations testified that the things
they brought with them to West Point were to be used as “props.” Nations also
testified, however, that the purpose of the gun was to scare someone if they
needed to and that they would have pointed it at Hodo’s wife. Everyone in the
car knew that they were bringing a gun to Hodo’s house. Moreover, Chandler
played with one of the ski masks while they were on the way to West Point.
Nations testified that Chandler actually put one of the ski masks on while he
was in the car.
      While the group was on their way to West Point, Oneal called them to
inquire as to their progress, to give them directions to Hodo’s house, and to
encourage them to hurry up and carry out the plan. Oneal told Brown that
Hodo was waiting for them.       As the night wore on, Brown testified that he
spoke to Farley in the car about whether the plan “sounded too easy,” which
made him “believe that it was fake.” According to Brown, Farley agreed, noting
that “I don’t think it’s for real.” Nations also testified that the plan “didn’t seem


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realistic,” and in response to a question as to whether she really believed that
the banker was in on it, she replied, “Not really.” The group got lost along the
way because they could not follow the map that they had printed out. In fact,
they ended up asking a Highway Patrolman for directions. Running short on
gas and unable to locate the banker’s house, the group left West Point and
returned to Tuscaloosa.
      Hodo testified that he did not know any of the defendants, except Oneal,
whom he met once at the bank when she expressed an interest in buying a
house from one of the bank’s customers. While she was at the bank, she went
into his personal office where she could have seen pictures of his wife. Hodo
gave her a business card that contained his full name, his cell phone number,
and the address of the bank. He was not involved in any plan to steal money
from the bank.
      After the jury returned their guilty verdicts as to the conspiracy count,
the probation officers prepared presentence reports for Chandler and Oneal and
included a four-level enhancement to Oneal’s offense level pursuant to §
3B1.1(a) for her role as an organizer or leader of the conspiracy. Oneal objected
to the enhancement, but the objection was overruled. Chandler and Oneal were
each sentenced to 60 months in prison. This appeal followed.
                                        II
      The sufficiency of the evidence is reviewed to determine whether any
rational trier of fact could have found that the evidence established guilt beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979). The
standard of review is, therefore, whether a rational trier of fact could have
found that the evidence established the essential elements of the offense beyond
a reasonable doubt. United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.
1998). This court considers the evidence in the light most favorable to the
government, drawing all reasonable inferences and credibility choices made in


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support of the verdict. Id. The court looks to whether the trier of fact made a
rational decision, rather than whether it correctly determined the defendant’s
guilt or innocence. United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995).
      The federal conspiracy statute, 18 U.S.C. § 371, provides that if “ . . . two
or more . . . persons conspire either to commit any offense against the United
States, or to defraud the United States, or any agency thereof in any manner
or for any purpose, and one or more of such persons do any act to effect the
object of the conspiracy, each shall be fined under this title or imprisoned not
more than five years, or both.”
      Thus, to convict a defendant of a conspiracy charge, the government is
required to prove three elements beyond a reasonable doubt: (1) an agreement
between the defendant and one or more persons, (2) to commit a crime, and (3)
an overt act by one of the conspirators in furtherance of that agreement. United
States v. Ingles, 445 F.3d 830, 838 (5th Cir. 2006). The government is not
required to provide direct evidence of the conspiracy. United States v. Holmes,
406 F.3d 337, 351 (5th Cir. 2005). Circumstantial evidence is enough to prove
an agreement, and minor participation may support a conviction. United States
v. Bieganowski, 313 F.3d 264, 277 (5th Cir. 2002). “An agreement may be
inferred from concert of action, voluntary participation may be inferred from a
collection of circumstances, and knowledge may be inferred from surrounding
circumstances.” Id. (internal punctuation omitted). “A [co-]conspirator need not
know all the details of the unlawful enterprise, so long as he knowingly
participates in some way in the larger objectives of the conspiracy.” United
States v. Davis, 226 F.3d 346, 354 (5th Cir. 2000).
      The essence of conspiracy is the agreement to commit a particular crime.
United States v. Jimenez Recio, 537 U.S. 270, 274 (2003). The Supreme Court
has long held that “to sustain a judgment of conviction on a charge of conspiracy
to violate a federal statute, the Government must prove at least the degree of


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criminal intent necessary for the substantive offense itself.” United States v.
Feola, 420 U.S. 671, 686 (1975); Ingram v. United States, 360 U.S. 672 (1959);
see also United States v. Binetti, 552 F.2d 1141, 1142 (5th Cir. 1977) (reversing
a defendant’s conviction for conspiracy to possess and distribute cocaine when
the defendant did not conspire to sell cocaine, but rather a harmless, lawful
substance that looked like cocaine). It is part of the government’s burden to
prove that “‘the intended future conduct [the conspirators] agreed upon includes
all the elements of the substantive crime.’” United States v. Pinckney, 85 F.3d
4, 8 (2d Cir. 1996) (quoting United States v. Rose, 590 F.2d 232, 235 (7th Cir.
1978)); see also United States v. Foote, 413 F.3d 1240, 1250 (10th Cir. 2005);
United States v. Warshawsky, 20 F.3d 204, 209 (6th Cir. 1994); United States
v. Vaglica, 720 F.2d 388, 391 (5th Cir. 1983).
      Therefore, we must ask, drawing all inferences in favor of the
government, “whether a rational trier of fact could have found that the evidence
established the essential elements of [any of the offenses] beyond a reasonable
doubt,” such that there was an agreement between the defendants and one or
more persons to commit any of the crimes as charged in the indictment. See
United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998). After
determining whether there was an agreement, the court may then consider
whether there was an overt act in furtherance of that agreement.
     Here, the jury convicted Oneal and Chandler of conspiracy (Count One).
Count One of the amended indictment reads, “Defendants did knowingly and
willfully conspire with each other and with others known and unknown to the
Grand Jury, to travel in interstate commerce with intent to commit crimes of
violence, to-wit, bank robbery, attempted bank robbery, kidnapping, attempted
kidnapping and extortion, in violation of 18 U.S.C. §§ 2113(a) and (d), 18 U.S.C.
§§ 1201(a) and (d), 1952(a)(2) and 1951.” As the jury instructions noted, the
government had to prove beyond a reasonable doubt the conspiracy, as well as


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the substantive elements of each crime, as indicated in the indictment. The
amended indictment also discusses the “Manner And Means Of The
Conspiracy”:
              1.      It was part of the conspiracy that [defendants], would and did
                      devise a plan and scheme to rob banks in Columbus and West
                      Point, Mississippi.
              2.      It was further part of the conspiracy to kidnap an employee
                      of the bank and to take him to the bank to aid and assist
                      them in the robbery.
              3.      It was further a part of the conspiracy to threaten the safety
                      and well-being of a member of the bank employee’s family in
                      order to extort or force his cooperation and assistance in
                      robbing the bank.


      The jury was instructed that, to convict a defendant of bank robbery, the
government is required to prove that an individual or individuals “by force and
violence, or by intimidation, t[ook], or attempt[ed] to take, from the person or
presence of another . . . any property or money or any other thing of value
belonging to, or in the care, custody, control, management, or possession of, any
bank, credit union, or any savings and loan association.” 18 U.S.C. § 2113(a).2
      Based on the evidence offered at trial, a rational trier of fact could have
concluded that Oneal and Chandler did agree with one or more persons to
commit bank robbery. Oneal devised the plan, lied to everyone about Hodo’s
willing participation, provided directions to Hodo’s house, and called them on
the road in order to encourage them to proceed as planned. Oneal contends that
there is no conspiracy because everyone, except her, believed that Hodo was in
on the plan to rob the bank. The record, however, reflects that at some point,
three of the coconspirators—Brown, Farley, and Nations—stopped believing

       2
         We note that § 2113(a) sets out two possible ways to commit bank robbery, and only
the first requires the use of force or violence. The second simply requires proof that a
defendant “enters or attempts to enter any bank . . . with intent to commit in such bank . . .
any felony affecting such bank . . . or any larceny”—without requiring use of force or violence.
The jury in this case was only instructed on the first form of bank robbery.

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Oneal that Hodo was in on the plan and continued to proceed nonetheless. As
soon as they stopped believing Oneal, a conspiracy formed. Oneal’s plan
involved threatening Hodo and his wife with a gun, and tying up Hodo’s wife,
thereby using “force” and/or “intimidation” to take money from a bank.
Therefore, there is sufficient evidence for a reasonable jury to find that there
was an agreement between Oneal and one or more persons to commit bank
robbery.
     Even if the other coconspirators believed Oneal and thought Hodo was an
inside man the entire time, the record supports an inference that the
coconspirators agreed to use force, violence, or intimidation with respect to Mrs.
Hodo. Brown testified that they had contemplated what to do if “Mrs. Hodo did
not cooperate”— tie her up with duct tape, use a gun to scare her, and “bring
her along with us” “to the bank and leave her in the bank with Mr. Hodo.”
     As for Chandler, a rational jury could have found that he was aware of the
plan and knew that it involved using force and intimidation to rob a bank.
Chandler knew they were bringing a loaded 9mm pistol with them, and he
knew about the ski masks; Nations had noted that she even observed Chandler
trying on a ski mask. Brown testified that he had told Chandler that it was a
“staged heist” and that they had all expected Mrs. Hodo to be there and “we
were going to tape her wrists up and her legs up.” Brown also testified that the
plan was to take Mrs. Hodo to the bank against her will if she did not cooperate.
In addition, Nations testified that Chandler was present when the plan was
discussed, and that he agreed to the plan. Because Brown testified that the
plan contemplated tying up Mrs. Hodo and bringing her to the bank against her
will, and because both Brown and Nations testified that Chandler was present
when the plan was discussed, there was sufficient evidence in the record for a
reasonable jury to find that Chandler agreed with one or more persons to use




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force, violence or intimidation to take money from a bank—that is, conspire to
commit bank robbery.3
      In addition to the evidence related to bank robbery, there is also evidence
in the record to show that Oneal conspired to commit kidnapping. To prove an
offense of kidnapping pursuant to 18 U.S.C. § 1201, the Government must
establish “(1) the transportation in interstate commerce (2) of an unconsenting
person who is (3) held for ransom or reward or otherwise, (4) such acts being
done knowingly and willfully.” United States v. Barton, 257 F.3d 433, 439 (5th
Cir. 2001).
      The relevant phrase here is “unconsenting.” Appellants contend that
because the amended indictment specifically references “a conspiracy to kidnap
an employee of the bank,” their conspiracy convictions must rest on a finding
that they conspired to kidnap Hodo. If the coconspirators believed that Hodo
was a willing participant, then Hodo would be implicitly consenting to the
“staged” kidnapping, and there could be no conspiracy-to-commit-kidnapping
conviction.
      According to the given jury instructions, the jury would have to find that
the defendant(s) knowingly kidnaped or attempted to kidnap “the person
described in the indictment.” See Zafiro v. United States, 506 U.S. 534, 540
(1993) (“[J]uries are presumed to follow their instructions.”) (internal citation
omitted). The person described in the indictment is an “employee of the bank.”
That is, a conviction here could only be based on a finding that appellants
conspired to kidnap Hodo, the banker, not his wife. As discussed above, a
reasonable jury could infer that the other coconspirators, based on Brown’s and


       3
          In addition, given the testimony of Brown, Farley, and Nations, a reasonable jury
could infer that Chandler also must have known the plan was a fake. For example, Brown
testified that he and Farley expressed doubts about the validity of the plan in the car on the
way to West Point—the same car that Chandler was also traveling in. Although such an
inference would be based on circumstantial evidence, such evidence can be sufficient to prove
an agreement. See Bieganowski, 313 F.3d at 277.

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Nations’s testimony, did not believe Oneal about Hodo’s supposed consent to
be tied up and taken to the bank. Thus, the jury could find an agreement
between at least some of the conspirators to kidnap Hodo against his will,
satisfying the statutory elements of 18 U.S.C. § 1201.
     Finally, there is sufficient evidence in the record to show that Oneal
conspired to commit extortion. Extortion requires “the obtaining of property
from another, with his consent, induced by wrongful use of actual or threatened
force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2).
The amended indictment specifically states that it was “part of the conspiracy
to threaten the safety and well-being of a member of the bank employee’s family
in order to extort or force his cooperation and assistance in robbing the bank.”
The issue here is whether, based on the evidence, a reasonable jury could find
that Oneal conspired to threaten the safety of Mrs. Hodo, in order to extort or
force Hodo’s cooperation in robbing the bank. Based on Brown’s and Nations’s
testimony that they did not believe that Hodo was in on the plan, a reasonable
jury could infer that there was agreement to threaten Mrs. Hodo’s safety, using
a gun, in order to extort Hodo to aid them in robbing the bank.
     In addition to an agreement between two more or persons to commit a
crime as charged in the indictment, conspiracy also requires an overt act by one
of the coconspirators. See Ingles, 445 F.3d at 838. The overt acts here are listed
in the amended indictment, and include, inter alia, acquiring and possessing “a
roll of duct tape, ski masks and a firearm for the purpose of executing the plan
and scheme.”     There was sufficient evidence at trial to show beyond a
reasonable doubt that at least one of the coconspirators committed overt acts
to further the objects of the conspiracy.
                                        III
     Oneal also appealed her sentence. The district court applied a four-level
upward enhancement to Oneal’s offense level because of a finding that she was


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an organizer or leader of the conspiracy under U.S.S.G. § 3B1.1(a). The issue
here is whether the district court’s factual finding was clearly erroneous. See
United States v. Watson, 988 F.2d 544, 550 (5th Cir. 1993) (reviewing district
court’s finding that a defendant was an organizer or leader under the clearly
erroneous standard). Under § 3B1.1(a), a four-level upward enhancement is
authorized “[i]f the defendant was an organizer or leader of a criminal activity
that involved five or more participants or was otherwise extensive.” § 3B1.1(a).
In making this determination, a sentencing court should consider: (1) the
exercise of decision making authority; (2) the nature of participation in the
commission of the offense; (3) the recruitment of accomplices; (4) the claimed
right to a larger share of the fruits of the crime; (5) the degree of participation
in planning or organizing the offense; (6) the nature and scope of the illegal
activity; and (7) the degree of control and authority exercised over others.
U.S.S.G. § 3B1.1, comment. (n.4). Moreover, the factual finding that a defendant
is a leader or organizer need only be supported by a preponderance of the
evidence. United States v. Puig-Infante, 19 F.3d 929. 944 (5th Cir. 1994).
     The district judge’s factual finding was not clearly erroneous. The evidence
supported the district court’s finding that Oneal was a leader or organizer of the
conspiracy. The evidence established that plans to rob either the banks in
Columbus and/or West Point were Oneal’s plans, that Oneal provided Hodo’s
address to others involved in the conspiracy, that she directed the others to
continue with the West Point trip even though she was unable to make the trip,
and that she contacted the others on their way to West Point to check on their
progress and to encourage them to continue their efforts to find Hodo’s house.
     For the foregoing reasons, we affirm Oneal and Chandler’s convictions for
conspiracy. We also affirm Oneal’s sentence.
     AFFIRMED.




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