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

                                                                            FILED
                                                                        December 11, 2007

                                      No. 07-10100                    Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,
v.

JIMMY WHITEHEAD, also known as Jimmy Mark Edward Whitehead,

                                                  Defendant–Appellant.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                               No. 4:06-CR-130-ALL


Before DAVIS, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Jimmy Mark Edward Whitehead was prosecuted pursuant to 18 U.S.C.
§ 3112(a) for bank robbery, and pursuant to 18 U.S.C. § 924(c)(1)(A)(ii) for
brandishing a firearm during a crime of violence. His first trial ended in
mistrial; a jury found him guilty of both crimes in a second trial. On direct
appeal, he argues that the district court erred by: (1) failing to dismiss at the
conclusion of his first trial on double jeopardy grounds; (2) failing to suppress
out-of-court and in-court identifications by two witnesses; (3) denying the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-10100

defendant’s motion for judgment of an acquittal due to insufficient evidence;
(4) construing 18 U.S.C. § 924(c)(1)(A)(ii) as stating a minimum rather than a
maximum prison term of seven years; and (5) denying the defendant’s motion for
a downward departure due to a purported sentencing disparity.                       We lack
jurisdiction to address the fifth issue and otherwise affirm.
                                               I
      We first consider whether the district court erred in denying Whitehead’s
motion for judgment of acquittal pursuant to Rule 29.1 Whitehead contends the
evidence is insufficient to support his conviction for participating in the robbery
of a credit union in Arlington, Texas and brandishing a gun during that robbery.
We review challenges to evidentiary sufficiency de novo,2 viewing the evidence
in the light most favorable to the government and making all reasonable
inferences and credibility choices in favor of the conviction.3 We will uphold the
conviction if a “rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.”4
      The evidence reflects that a teller was accosted by two armed young black
males wearing gloves, ski masks and coveralls as she entered the back door of
the credit union at approximately 8:00 a.m. to prepare to open it for the day’s
business. Once inside, the robbers threatened to harm the teller if they saw a
policeman. During the hold-up, the two gunmen spoke to at least one other
accomplice using push-to-talk features of cell phones while inside the credit
union. They absconded with $453,600 in cash, which they placed in a box after
a plastic bag they had used to hold the bills split open. They also removed and


      1
          See FED. R. CRIM. P. 29.
      2
          United States v. Pennell, 409 F.3d 240, 243 (5th Cir. 2005).
      3
          United States v. Redd, 355 F.3d 866, 872 (5th Cir. 2003).
      4
          United States v. Hernandez-Bautista, 293 F.3d 845, 853 (5th Cir. 2002).

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                                 No. 07-10100

took a video surveillance tape. Once the robbers had fled, the teller called 911
at 8:26 a.m.
      Cornelius Kiser lived down the street from the credit union, and the
morning of the robbery he saw a black male wearing a white tank top walking
down the street near the credit union. He thought this attire was odd because
it was raining and cold that January morning. A few minutes later, Kiser
observed the same man in the breezeway of an apartment complex across the
street “grab a couple of bags and a box and leave.”
      Jorge Juarez lived in an apartment near the credit union and saw a black
male wearing a white “muscle tee” walk back and forth from the street to an
apartment stairwell for ten to fifteen minutes the morning of the robbery. Both
Juarez and Kiser identified Whitehead from a photo line-up six months later,
and Juarez identified Whitehead at trial.
      Another area resident, Ernest Harden, a convicted sex offender, saw a
black male throw something into bushes that stood in front of an apartment
balcony across the street from his home at approximately 8:30 the morning of
the robbery. The man Harden observed wore a white “muscle shirt” and
appeared to be talking on a cell phone.
      The day after the robbery, Jackie Sue Kyles, who lived in the apartment
with the balcony Harden identified, found a ski mask and gloves on her balcony
and called police. Whitehead’s DNA was found inside both gloves but not on the
ski mask. The DNA of Edward Crain and unidentified others was found on the
ski mask.
      Edward Crain was apprehended about three months after the credit union
robbery and confessed to participating in it. He also admitted to participating
in two subsequent bank robberies carried out with similar methods. During
initial questioning, Crain did not name Whitehead as a participant in any of the
crimes, but he ultimately told authorities and testified at Whitehead’s trial that


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                                 No. 07-10100

Whitehead was the lead person in the credit union hold-up, although he said
Whitehead played no part in the other robberies.
      Crain gave detailed testimony at Whitehead’s trial about Whitehead’s role
in planning and executing the credit union robbery and the division of its
proceeds. Crain testified that he robbed the Arlington credit union along with
Whitehead, Chuck Oliver, and Jimmy Whitehead’s brother, George Whitehead.
Prior to the robbery, the four men conducted surveillance of the credit union.
The morning of the robbery, Crain, Oliver, Whitehead, and Whitehead’s brother
drove to the credit union in two vehicles. They brought gloves, ski masks, two
pistols, and three phones. Whitehead’s brother remained in one vehicle with a
phone and a police scanner. Crain, Oliver, and Whitehead drove the other
vehicle closer to the credit union. Originally, Crain and Oliver had planned to
enter the credit union, so Crain brought his own ski mask, which he had worn
many times, and gloves, which were new. The robbers changed their plans just
before the robbery, however, and decided instead that Whitehead would enter
with Oliver, and that Crain would be the getaway driver. Crain gave his ski
mask and gloves to Whitehead. Crain and Whitehead each took a phone. Crain
then sat in the car and watched Whitehead and Oliver confront the teller at the
credit union’s back door. About 20 minutes later, Oliver reappeared at the back
door and waved for Crain to pull up. Oliver got in the vehicle and reported that
Whitehead was still inside with the teller. Crain noticed it was raining at this
point. He and Oliver circled the credit union; they could not find Whitehead, so
they drove away and found his brother. Whitehead’s brother and Oliver then
returned to the credit union to pick up Whitehead. When the three men
reunited with Crain, Whitehead was wearing a white tank top, carrying a box
of money and blue bags, and missing his mask and gloves. The four went to the
home of Lisa Wright, where Whitehead stayed at times, to divide the cash.
Crain also testified that prior to the credit union robbery, Whitehead was “poor,”


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                                      No. 07-10100

but afterwards, he drove vehicles with expensive accessories and paint jobs, wore
expensive jewelry, bought gold “grills” for his teeth, and spent considerable sums
at bars with topless female entertainers.
       Whitehead contends that Crain’s testimony is unreliable because he is an
unindicted co-conspirator5 and because he previously lied to investigators and
did not implicate Whitehead in the credit union robbery until just before trial.
Whitehead’s contentions are familiar, and we have consistently rejected similar
arguments.6 The weight and credibility of Crain’s testimony were matters for
the jury.
       Whitehead contends that the eye-witness testimony was unreliable. Kiser
was not “one hundred percent sure that [Whitehead] was the same person he
saw across the street the day of the robbery,” and Kiser was shown a photo
lineup days before testifying. Juarez’s testimony “varied greatly between the
two trials” and conflicted, and Harden “did not positively identify” Whitehead as
the person who ran past Harden’s residence. Whitehead also contends the DNA
evidence is inconclusive since DNA in addition to Whitehead’s was found on the
gloves and Crain’s DNA, but not Whitehead’s, was found on the ski mask.
Again, these are matters for the factfinder to weigh. We note with regard to the
DNA evidence that in a post-arrest interview, Whitehead denied that he ever
wore or touched the gloves at issue. The jury could have viewed this denial as
incriminating.
       Viewing all of the evidence in the light most favorable to the government,
we must conclude that a rational juror could have found the crimes’ essential
elements beyond a reasonable doubt.

       5
         The federal authorities did not prosecute Crain, but Crain was prosecuted and
convicted in state court.
       6
        See United States v. Silva, 748 F.2d 262, 266 (5th Cir. 1984) (“[A] conviction may be
based solely upon the uncorroborated testimony of an accomplice if the testimony is not
incredible or otherwise insubstantial on its face.”).

                                             5
                                         No. 07-10100

                                                II
       Whitehead contends that he was placed in double jeopardy when he was
subjected to a second trial, citing Oregon v. Kennedy.7 We review de novo the
district court’s denial of a motion to dismiss based on double jeopardy,8 but we
accept the district court’s underlying factual findings unless they are clearly
erroneous.9
           The Double Jeopardy Clause does not normally prohibit retrial, if the
second trial results from a mistrial that the defendant requested.10 The “narrow
exception” to this rule is that the “prosecution may not engage in misconduct
intended to provoke mistrial requests.”11 “Only where the governmental conduct
in question is intended to ‘goad’ the defendant into moving for a mistrial may a
defendant raise the bar of double jeopardy to a second trial after having
succeeded in aborting the first on his own motion.”12 Our inquiry focuses not on
whether the prosecution “harassed” or “overreached,” but on the factual issue of
whether the prosecutor intended to produce a mistrial.13
       The district court explicitly found that the prosecutor did not intend to
provoke the defense to move for a mistrial:




       7
           456 U.S. 667 (1982).
       8
           United States v. Botello, 991 F.2d 189, 192 (5th Cir. 1993).
       9
           United States v. Gonzalez, 76 F.3d 1339, 1342 (5th Cir. 1996).
       10
         United States v. Weeks, 870 F.2d 267, 269 (5th Cir. 1989) (“Ordinarily, however,
where the first prosecution has terminated on the defendant’s own motion for a mistrial, the
government is not barred from putting the defendant to trial again.” (citing United States v.
Tateo, 377 U.S. 463, 467 (1964)).
       11
            Id.
       12
            Oregon v. Kennedy, 456 U.S. 667, 676 (1982).
       13
            Id. at 675.

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                                  No. 07-10100

      I find that misconduct on the part of the prosecutor caused the
      Court to grant the mistrial, but that doesn’t justify granting of the
      double jeopardy defense. The Supreme Court is real clear that I
      cannot find that there’s . . . double jeopardy unless I find that the
      prosecutor intended by his conduct to cause a mistrial. I cannot
      make such a finding. I think it was a matter of [the prosecutor]
      seeing what he could get away with, thinking it would help him in
      the trial. But I don’t think he wanted a mistrial.

      This finding was not clearly erroneous. A mistrial was granted because
during the first trial, after had Crain testified that Whitehead purchased
vehicles, clothing and consumer electronics following the credit union robbery,
the prosecutor asked “Do you know what else he was spending his money on?”,
and Cain responded “Drugs.” Whitehead’s counsel moved for a mistrial.
      The district court had granted a motion in limine prior to the first trial to
exclude evidence that Whitehead used credit union robbery proceeds to buy
drugs. After Crain answered “Drugs” during the first trial, the district court
held a hearing, and Crain testified that on the morning of the first trial, the
prosecutor told Crain and the other witnesses not to mention drugs. Crain
recounted that the prosecutor “said there was a motion in limine; cannot use the
word drugs in any way, shape, form, or matter. No matter what I ask you, don’t
use the word ‘drugs.’” Crain explained that he nevertheless answered “drugs”
because he was “nervous and a little bit confused about the question and the
situation.”
      The government actively opposed the defense’s request for mistrial. The
prosecutor immediately explained to the judge that he had explicitly instructed
Crain not to testify about drugs, and the prosecutor stated he was trying to elicit
Crain’s description Whitehead’s expenditures at strip clubs and on a “diamond
grill” for his teeth. The government offered a possible solution to lessen the
impact of the testimony and to continue the trial. This evidence supports the
district court’s finding.


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                                        No. 07-10100

      The defense argues the prosecution’s case improved significantly between
the first and second trial, and that this improvement is evidence of prosecutorial
intent to provoke the defense to move for a mistrial. Relatedly, it claims the
prosecution’s initial case was so weak during the first trial that we can infer the
government deliberately brought about the mistrial.
      Whitehead argues that eye-witness Harden was impeached when it was
revealed on cross-examination that he was a convicted sex offender.           The
prosecution brought out this damaging fact in its direct examination of Harden
at the second trial. Whitehead also notes that at the first trial, Juarez testified
that he first met with a particular investigator a few weeks after the robbery,
when in fact, the meeting occurred six months after the robbery. Whitehead
asserts this conflict in the Juarez’s testimony would have been apparent and
significant had the first trial continued. Additionally, Whitehead notes, at the
first trial, Kiser was asked if the person he observed the morning of the robbery
was present in the courtroom during the first trial, and Kiser declined to identify
the defendant. The government did not pose the same question in the second
trial. Even assuming an inference of intent to goad the defense into moving for
a mistrial could be gleaned from these various circumstances, they do not render
the district court’s finding of no intent clearly erroneous.
                                              III
      Whitehead moved unsuccessfully in the district court to suppress the in-
court and out-of-court identifications of Whitehead by two witnesses, Juarez and
Kiser, on two primary grounds. He maintains these challenges to the admission
of this evidence on appeal. We accept a trial court’s factual findings that
underlie a ruling on a motion to suppress unless they are clearly erroneous.14




      14
           United States v. Hefferon, 314 F.3d 211, 217 (5th Cir. 2002).

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                                        No. 07-10100

The question of whether an identification is constitutionally admissible is a
mixed question of fact and law.15
      Whitehead contends the government violated his due process rights by
using an impermissibly suggestive photograph lineup to elicit positive
identifications from two witnesses. Courts determine whether a photographic
lineup violates a defendant’s due process rights by using a two-part test. First,
they ask if “the procedure was impermissibly suggestive.”16 If the lineup was too
suggestive, the issue is “whether this created a very substantial risk of
misidentification.”17
      The photographic lineup was not impermissibly suggestive. The witnesses
were shown a sheet containing six pictures of young adult black males. They
were told they did not have to choose any of the individuals. The witnesses were
further instructed not to focus on aspects of a person’s appearance that are
susceptible to change, such as hairstyle and facial hair, but rather to focus on
unchangeable features such as “their ears, their eyes, [and] their nose.”
      Whitehead claims the lineup, when combined with the instructions,
impermissibly suggested that witnesses should select his photograph, because
he is the only person in the lineup with a “facial deformity.” He asserts that he
has a “lazy eye” that is “so manifestly apparent that without other alternatives
to select from, the photo lineup was tantamount to a show up.” We disagree
based on a review of the photographic lineup. It is not suggestive. Nor were the
investigating agents’ comments or instructions.
      Whitehead’s second principal argument is that the government violated
his Sixth Amendment rights by failing to notify his attorney prior to conducting


      15
           Id.
      16
           United States v. Atkins, 698 F.2d 711, 713 (5th Cir. 1983).
      17
           Id.

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                                  No. 07-10100

the photographic lineup. He argues that United States v. Wade18 requires the
government to notify counsel before showing witnesses a photographic lineup
containing the defendant. The Supreme Court foreclosed this argument in
United States v. Ash,19 when it stated, “We hold . . . that the Sixth Amendment
does not grant the right to counsel at photographic displays conducted by the
Government for the purpose of allowing a witness to attempt an identification
of the offender.”20 We therefore reject this argument.
                                        IV
      The district court sentenced Whitehead to 240 months’ imprisonment for
the bank robbery conviction and 120 months’ imprisonment based on the
conviction for brandishing a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(ii),
with the terms of imprisonment to be served consecutively. The court further
ordered Whitehead to pay restitution of $453,600 and a special assessment of
$200. Finally, the district court imposed a supervised release term of three
years with respect to the bank robbery count, and a term of five years for the
weapons violation, to be served concurrently.
      With regard to the 120 months’ sentence, Whitehead contends that the
district court incorrectly interpreted 18 U.S.C. § 924(c)(1)(A)(ii) as setting forth
a minimum seven-year sentence, contending that the statute sets forth a
maximum seven-year sentence. Whitehead argues in the alternative that the
provision is unconstitutional. We review the district court’s interpretation of a




      18
           388 U.S. 218 (1967).
      19
           413 U.S. 300 (1973).
      20
           Id. at 321.

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                                            No. 07-10100

federal statute de novo.21 We also review the constitutionality of a federal
statute de novo.22
       Whitehead’s contention that 18 U.S.C. § 924(c)(1)(A)(ii) imposes a
maximum punishment of seven years’ imprisonment for brandishing a firearm
during the commission of a crime of violence is contrary to the statute’s
unambiguous text and circuit precedent. Section 924(c)(1)(A)(ii) provides that
the offender “shall, in addition to the punishment provided for such crime of
violence . . . if the firearm is brandished, be sentenced to a term of imprisonment
of not less than 7 years.”23 This language plainly sets forth a minimum, rather
than a maximum. We have expressly rejected Whitehead’s interpretation in
previous decisions, noting that by using the “no less than” language, “Congress
has implicitly authorized district courts to impose sentences . . . in excess of
seven years and up to a maximum of life imprisonment.”24
       We also reject Whitehead’s argument that if § 924(c)(1)(A)(ii) can be read
to allow sentences greater than seven years, it fails to give defendants sufficient
notice and is void for vagueness. As explained above, the language is not vague.
In addition, we have previously held that a provision using “not less than” to
establish a minimum sentence is “not unconstitutionally vague for failure to fix
a maximum sentence.”25




       21
            United States v. Hebert, 131 F.3d 514, 525 (5th Cir. 1997).
       22
            United States v. Luna, 165 F.3d 316, 319 (5th Cir. 1999).
       23
            18 U.S.C. § 924(c)(1)(A)(ii).
       24
            United States v. Sias, 227 F.3d 244, 246 (5th Cir. 2000).
       25
         United States v. Davis, 801 F.2d 754, 756-57 (5th Cir. 1986), abrogated by statute, 18
U.S.C. § 924, as stated in United States v. Affleck, 861 F.2d 97, 98 (5th Cir. 1988).


                                                11
                                       No. 07-10100

                                              V
      Prior to sentencing, Whitehead filed a motion for downward departure
based on a purported disparity between the 30-year sentence he received and the
15-year sentence his accomplice Crain received as a result of his state-court
prosecution and conviction for the credit union robbery. That motion was
denied, and Whitehead maintains on appeal that the district court erred by
failing to downwardly depart. Whitehead argues the difference between his and
Crain’s sentences constitutes a “sentencing disparity” for which the sentencing
court should award a downward departure.
      We de not reach the merits of this argument because we lack jurisdiction
to do so. We possess jurisdiction “to review [a] district court’s decision not to
depart downward from the guideline range only if the court based its decision
upon an erroneous belief that it lacked the authority to depart.”26 The record
must indicate that the judge held such a belief. The record before us reveals no
erroneous understanding. If anything, the record indicates the judge thought
he could grant the departure, as he said he would consider it at sentencing. For
these reasons, we conclude we lack jurisdiction to reach this argument.
      Whitehead does not challenge the reasonableness of his sentence, nor does
he contend that the district court improperly applied or weighed any of the
factors set forth in 18 U.S.C. § 3553(a).
                             *     *     *
      For the foregoing reasons, we AFFIRM Whitehead’s conviction and
sentence.




      26
           United States v. Lambright, 320 F.3d 517, 519 (5th Cir. 2003).

                                              12
