REVISED DECEMBER 11, 2007 United States Court of Appeals IN THE UNITED STATES COURT OF APPEALS Fifth Circuit FOR THE FIFTH CIRCUIT FILED No. 05-10188 March 13, 2006 Summary Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARVIN ISAACS,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:04-CR-128-2

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Marvin Isaacs appeals his jury conviction of bank robbery

and aiding and abetting and of possession of a firearm during and

in relation to a bank robbery and aiding and abetting, in

violation of

, 924(c)(1)(A)(1), and 2113(a).

Counts one and two of the indictment involved a July 27, 2004

robbery at a Bank One location, and counts three and four

pertained to a robbery on August 9, 2004, at a Frost Bank

location, both banks located in Fort Worth, Texas.

* Pursuant to the 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under limited circumstances set forth in 5TH CIR. R. 47.5.4. Isaacs argues that there was no probable cause to arrest him

and therefore the district court erred by denying his motion to

suppress his confession, that the district court improperly

admitted extraneous offense evidence, and that the evidence is

insufficient to support his conviction for aiding and abetting

the use and carrying of a firearm during and in relation to a

bank robbery. We affirm.

I

Isaacs asserts that the district court erred by denying his

motion to suppress the confession made following his warrantless

arrest. He argues that the officers lacked probable cause to

arrest him and, as a result, all statements should have been

suppressed as the fruit of that illegal arrest.1 In reviewing a

district court’s denial of a motion to suppress, we review

factual findings, including credibility choices, for clear error,

while legal conclusions are reviewed de novo.2

Of course, law enforcement officials may arrest an

individual in a public place without a warrant if they have

1 Wong Sun v. United States,

(1963); see also United States v. Runyan,

(5th Cir. 2002) (“We view the facts underlying the suppression determination in the light most favorable to the prevailing party.... It is the defendant's burden to prove a Fourth Amendment violation by a preponderance of the evidence. However, once the defendant proves such a violation, the burden shifts to the government to demonstrate why the exclusionary rule should not apply to the fruits of the illegal search or seizure” (citations omitted).).

2 United States v. Santiago,

(5th Cir. 2005).

2 probable cause to believe that individual committed a felony.3

“Probable cause for a warrantless arrest exists when the totality

of the circumstances within a police officer’s knowledge at the

moment of the arrest are sufficient for a reasonable person to

conclude that the suspect had committed or was committing an

offense.”4 When considering what a reasonable person would have

concluded, we consider the expertise and experience of the law

enforcement official.5 The probable cause must be analyzed under

the totality of the circumstances to determine whether there is a

fair probability that a crime occurred.6 A “‘fair probability’

is something more than a bare suspicion, but [it] need not reach

the fifty percent mark.“7

Suppression hearing testimony indicates that law enforcement

officials who were investigating the Frost Bank robbery learned

that the getaway vehicle used in the robbery had been rented

earlier that morning by Laffoon and a second man. Shortly after

the robbery, officials learned that Laffoon was returning the car

to the rental agency. Based on information obtained during the

investigation of the robbery at Frost Bank, law enforcement

3 See United States v. Garcia,

(5th Cir. 1999). 4

5

6

.

7

3 officials were certain that Laffoon was the Frost Bank robber and

that he was involved in previous robberies. Isaacs, who returned

to the rental agency with Laffoon, was identified as the man with

Laffoon earlier that morning, prior to the robbery, when the car

was rented. Although one witness raised a question whether

Laffoon’s getaway driver at the Frost Bank was male or female,

the law enforcement officials knew that the driver of the getaway

vehicle had long hair. A witness at the Bank One robbery

described the driver as a Caucasian male with long hair.

Therefore, the descriptions of the getaway driver at both crime

scenes resembled Isaacs, and he was placed in the vehicle used in

the robbery both before and after it transpired.8

Thus, the totality of the circumstances and facts within the

law enforcement officials’ knowledge when they arrested Isaacs

was sufficient for a reasonable person to conclude that Isaacs

was Laffoon’s driver in the Frost Bank robbery. Probable cause

therefore existed, and the district court did not err in denying

Isaacs’s motion to suppress.

II

We review for abuse of discretion cases involving the

8 See United States v. Baldwin,

(5th Cir. 1981) (finding probable cause to arrest on suspicion of robbery where defendant’s truck was positively identified as the getaway vehicle and witnesses had provided police descriptions generally fitting the defendant).

4 admission of FED.R.EVID. 404(b) evidence.9 Irrespective of the

threshold determination regarding whether the evidence is

intrinsic or extrinsic,10 the district court did not err in

admitting the evidence. Before admitting Rule 404(b) evidence, a

trial court must apply a two-step inquiry set forth in United

States v. Beechum: (1) whether the offense evidence is relevant

to an issue other than the defendant’s character and (2) whether

the evidence possess probative value that is not substantially

outweighed by its undue prejudice, meeting the requirements of

FED.R.EVID. 403.11 To meet the relevancy requirement, the

government need only produce sufficient evidence to permit a

reasonable jury to find the preliminary facts by a preponderance

of the evidence.12

A police officer testified that on August 3, 2004, he

stopped a Black Dakota truck driven by Isaacs, the vehicle used

in the Bank One robbery. After having gained consent to search

the vehicle, the officer found a firearm and ammunition–the same

type and caliber weapon used in the Frost Bank robbery. The

9 See United States v. Peterson,

(5th Cir. 2001). 10 See United States v. Williams,

(5th Cir. 2003); see also United States v. Coleman,

(5th Cir. 1996) (stating that intrinsic evidence does not implicate Rule 404(b)); but see Unites States v. Walters,

, 166 n.2 (5th Cir. 2003) (noting in dictum that the Court would only analyze the admissibility of the disputed evidence under Rule 404(b) since the government had not offered it as intrinsic evidence at trial). 11

(5th Cir. 1978); Peterson,

.

12 United States v. Anderson,

(5th Cir. 1991).

5 firearm had a different, but sequential, serial number as the

weapon used in the Frost Bank robbery and was procured by

Laffoon. The district court did not abuse its discretion in

finding that the evidence was not offered to show propensity or

bad character.13 The evidence was appropriately before the jury

as proof of intent, identity, and absence of mistake or

accident.14

Isaacs also contests the admittance of evidence regarding

four non-charged bank robberies. Isaacs asserts that this

evidence is irrelevant, cumulative, and prejudicial. However,

when the evidence closely parallels the charged offense, then the

probity of the evidence may outweigh its unfair prejudice.15

Again, the district court did not abuse its discretion in so

ruling.

III

13 The district court twice instructed the jury as to the proper scope of consideration to be given to the testimony. See United States v. Parsee,

(5th Cir. 1999) (“The court instructed the jury that it could consider the bad acts only for the limited purpose of intent, thereby minimizing any prejudicial effect.”). 14 See FED.R.EVID. 404(b); United States v. Posada-Rios,

(5th Cir. 1998) (finding evidence of inculpatory material found during vehicle stop admissible to show intent); United States v. Hernendez-Guevara,

(5th Cir. 1998).

15 Beechum,

(stating “the overall similarity of the extrinsic and charged offenses in this case generates sufficient probity to meet the rule 403 test that the probative value of the evidence not be substantially outweighed by its unfair prejudice); United States v. Guerrero,

(5th Cir. 1999) (finding admissible identity evidence where the circumstances of the extraneous act were so similar to the offense in question that they evince a signature quality...”).

6 Isaacs moved for a judgment of acquittal regarding the

firearm counts at the close of the Government’s case and at the

close of evidence. We review de novo.16 We will affirm the

jury’s verdict if a reasonable trier of fact could conclude from

the evidence that the elements of the offense were established

beyond a reasonable doubt, viewing the evidence in the light most

favorable to the verdict and drawing all inferences from the

evidence to support the verdict.17

In order to prove aiding and abetting, the Government must

show that Isaacs (1) associated with the criminal venture, (2)

participated in the venture, and (3) sought by action to make the

venture succeed.18 Isaacs drove the vehicle used in the

robberies, and he participated in the decision making that led to

the Frost Bank robbery.19 Isaacs satisfies these three elements

of aiding and abetting.

In a conviction for aiding and abetting an

(c)(1) offense, the prosecution must prove that the defendant

16 See United States v. Izydore,

(5th Cir. 1999). 17 United States v. Floyd,

(5th Cir. 2003). 18 United States v. Lopez-Urbina,

(5th Cir. 2005) (“Association means that the defendant shared in the criminal intent of the principal. Participation means that the defendant engaged in some affirmative conduct designed to aid the venture. The government must therefore prove the underlying crime was committed by someone other than the defendant and that the defendant himself either acted or failed to act with the specific intent if advancing the commission of the underlying crime” (citations omitted).). 19 There is no indication that the mutual planning included discussion of a firearm.

7 acted with the knowledge or specific intent of advancing the use

of the firearm. The jury is entitled to draw reasonable

inferences of knowledge or intent from the defendant’s actions.20

There must also be proof that the defendant performed some

affirmative act relating to the firearm.21 Knowledge of the

underlying offense or knowledge that a firearm will be used in

the commission of the underlying offense is insufficient to

sustain a conviction.22 There must be evidence that the

defendant took some action to facilitate or encourage the use or

carrying of a firearm rather than simply assist in the crime

underlying the

(c)(1) violation.23

Isaacs argues that the government failed to establish an

affirmative link between himself and the firearm that Laffoon

used in the robberies. Trial testimony refutes Isaac’s argument.

Laffoon carried a firearm during both of the charged bank

robberies, and Isaacs, who drove the car in both robberies, knew

that Laffoon carried the firearm. The government argues that

“once knowledge on the part of the aider and abetter is

established, it does not take much to satisfy the facilitation

20 Lopez-Urbina,

. 21

22

23

“The link to the firearm is necessary because the defendant is punished as a principal for using a firearm....”

8 element.”24

Although Isaacs did not enter the banks with Laffoon,25

Isaacs confessed to his involvement in other robberies with

Laffoon, to knowing that Laffoon carried a firearm in all of the

robberies in which Isaacs participated, and to knowing that the

firearm that had been used in the Frost Bank robbery was in the

vehicle at the time of Isaacs’s arrest.26 Also, between the

dates of the Frost Bank and the Bank One robbery, in a traffic

stop of the Dakota truck that Isaacs was driving, but which had

been rented by Laffoon, police found the same make and model of

firearm as that which was used by Laffoon in the Frost Bank

robbery. Isaacs consistently participated in robberies during

which Laffoon used a firearm, knowingly conveyed to and from the

robberies the firearm that was to be used in the robberies, and

also independently transported a firearm in a vehicle while not

in Laffoon’s presence. Moreover, the government argues that once

Laffoon re-entered the getaway car, Isaacs, with the intent of

24 United States v. Bennett,

(1st Cir. 1996) (stating “facilitation is essentially undisputed since Bennett provided his car to transport himself, his co-conspirators, and the gun to execute the raid”), cited in United States v. Sorrells,

(5th Cir. 1998). 25 “This court has never imposed a requirement that an individual be physically present when the gun is used to be convicted of aiding and abetting under § 924(c)(1).” United States v. Salazar,

(5th Cir. 1995) (per curiam). 26 The phrase “carries a firearm” in

(c)(1) is not limited to the carrying of firearms on a person, but also applies to persons who knowingly possess and convey firearms in a vehicle. See Muscarello v. United States,

(1998).

9 alluding police, commenced carrying the firearm.27 The

government also suggests that Isaacs benefitted from Laffoon’s

use of the gun, as it decreased the time Laffoon was in the bank

and provided more time to escape.28

Though the government cites three Fifth Circuit cases,29

only Sorrells is on point, yet it is factually distinguishable.30

Still, quoting Bennett, we stated: “‘From this evidence a jury

could find that Bennett knew that one of his companions was

carrying the gun when they committed the attack, and facilitation

is essentially undisputed since Bennett provided his car to

transport himself, his co-conspirators, and the gun to execute

27 United States v. Willis,

(5th Cir. 1977) (holding that the crime of bank robbery continues throughout the escape); United States v. Morrow,

(6th Cir. 1992) (finding a § 924(c) violation when the defendant accompanied his partner into the crime scene and received the protection of his confederate's weapon).

28 See United States v. Woods,

(7th Cir. 1998) (stating that “benefitting from the use of the gun permits an inference of facilitation”); see also United States v. Gordon,

(3d Cir. 2002) (holding that an aiding and abetting violation of section 924(c) does not require that the defendant possessed or controlled the weapon so long as the defendant’s actions “were sufficiently intertwined with, and his criminal objectives furthered by the actions of the participant who did carry and use the firearm”); Bazemore v. United States,

(11th Cir. 1998) (“Bazemore cannot knowingly benefit from the protection afforded by the firearm carried by his companion and then subsequently evade criminal liability for its presence.”). 29 Unites States v. Bell,

, 195 n.10 (5th Cir. 1987) (describing when an accomplice can be accountable as a principle); United States v. Hickman,

(5th Cir. 1998) (focusing solely on the knowledge criteria); United States v. Sorrells,

(5th Cir. 1998). 30

. In Sorrells, the accomplice affirmatively provided the principal with a gun, whereas, here, Laffoon procured the weapon(s) used in the bank robberies. Also, the knowledge criteria was primarily at issue.

10 the raid.’”31 The government then cites persuasive extra-

jurisdictional cases to further support its contention.32

From the foregoing evidence the jury could have reasonably

inferred that Isaacs facilitated or encouraged the use or

carrying of a firearm rather than simply assisted in the crime

underlying the

(c)(1) violation. When viewed with

all reasonable inferences made in support of the jury’s verdict,

the evidence supports Isaac’s conviction for aiding and abetting

the possession of a firearm during and in relation to a bank

robbery.

AFFIRMED.

31

(citing Bennett,

); see also Salazar,

(stating that “[t]he jury could also have considered the evidence that the weapons were stored at Salazar's place of business as an affirmative act aiding the use of the weapon” and that “Salazar also assisted Hernandez by getting a locksmith to unlock his shop in which the keys to the car that contained the gun and was used in the escape were located”) . 32 Bazemore,

(finding “ample evidence linking Bazemore to the gun, because he was the driver of the car which carried both Abercrombie and the gun to the drug deal and because he knowingly accepted the gun's protection while he was inspecting the marijuana”); United States v. Easter,

(9th Cir. 1995) (affirming a defendant’s aiding and abetting conviction based on evidence that the gun was present in the automobile and the defendant heard other participants on the way to the robbery discussing the gun); Santoro v. United States,

(1st Cir. 1999) (stating that “Santoro accompanied the other defendants to the stash house and, whether or not he, himself, used or carried a firearm, he acted as a lookout for the others and, thus, facilitated his co-defendants’ use and carriage of the firearms”).

11