     Case: 13-60597      Document: 00512738090         Page: 1    Date Filed: 08/19/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-60597
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          August 19, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

GEORGE HILLIARD,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:12-CR-117-1


Before JOLLY, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       George Hilliard was convicted by a jury of conspiring with others to steal
Government property in violation of 18 U.S.C. § 371 and aiding and abetting
in the stealing and conversion of approximately $23,000 and seven iPads
belonging to the United States in violation of 18 U.S.C. § 641.                        He was
sentenced to 21 months of imprisonment, three years of supervised release,
and restitution in the amount of $20,499.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                        No. 13-60597

       Hilliard argues that the district court erred by admitting extrinsic
evidence 1 concerning a previous robbery attempt by Hilliard and his co-
defendants. Hilliard’s plea of not guilty to the charge of conspiracy placed his
intent at issue for purposes of Federal Rule of Evidence 404(b). See United
States v. Roberts, 619 F.2d 379, 382-83 (5th Cir. 1980). The district court
allowed the testimony of Leroy Garrett and the other co-defendants regarding
this other robbery because it was relevant to show intent, knowledge, and
motive of Hilliard. The court determined that Hilliard’s state of mind and
intent were clearly at issue, and that the probative value of the evidence was
not substantially outweighed by unfair prejudice.                    See United States v.
Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). Additionally, the court
gave a limiting jury instruction, emphasizing the “very limited purpose” for the
use of such evidence. See United States v. Brugman, 364 F.3d 613, 621 (5th
Cir. 2004). The district court did not abuse its discretion in admitting this
evidence.
       Next, Hilliard argues that the evidence was insufficient to prove beyond
a reasonable doubt that he conspired with others to steal property belonging
to the Government. He contends that he was merely an associate of Garrett
and the other co-defendants and that he only had knowledge of the conspiracy
but did not agree to participate in it.
       Because Hilliard filed a motion for judgment of acquittal under Federal
Rule of Criminal Procedure 29, we review the sufficiency of the evidence to
determine if a rational juror could have found that the elements of the offense
were proved beyond a reasonable doubt. United States v. Kay, 513 F.3d 432,

       1  The Government did not argue that the evidence in question was intrinsic, rather
than extrinsic. See United States v. Kinchen, 729 F.3d 466, 471 & n.2 (5th Cir.
2013)(explaining difference between intrinsic and extrinsic evidence). Because we conclude
that the district court did not err even applying the more stringent test for extrinsic evidence,
we need not decide whether it was intrinsic or extrinsic.


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452 (5th Cir. 2007). “To establish a violation of § 371, the government must
prove: ‘(1) an agreement between two or more persons to pursue an unlawful
objective; (2) the defendant's knowledge of the unlawful objective and
voluntary agreement to join the conspiracy; and (3) an overt act by one or more
of the members of the conspiracy in furtherance of the objective of the
conspiracy.’” United States v. Freeman, 434 F.3d 369, 376 (5th Cir. 2005)
(citing United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001)).
      Hilliard admitted to federal agents after his arrest that he put the FBI’s
cooperating individual, Garrett, in touch with the three corrupt police officers,
co‑defendants Kent Daniels, Zack Robinson, and Watson Lee Jackson, Jr., for
the purpose of robbing drug dealers at a hotel. The evidence shows that
Hilliard entered into an agreement to provide the corrupt police officers so that
they may commit the robbery and that he was involved in planning the date of
the robbery based on the availability of the corrupt officers. Hilliard’s role in
the robbery was to “put it together” with Garrett, and the role of the corrupt
officers was to execute it. Hilliard expressed his authority to decide how much
the corrupt officers should receive from the robbery. Hilliard was heard in
recordings encouraging the robbery to take place, and he expressed anger when
he did not receive any money after the robbery. The evidence establishes that
Hilliard intended to participate in the conspiracy by recruiting the corrupt
officers to execute the robbery, by sharing in the proceeds of the conspiracy,
and by deciding how the proceeds would be divided among the other
participants in the conspiracy. See United States v. Curtis, 635 F.3d 704, 719-
20 (5th Cir. 2011). There is no evidence that Hilliard tried to withdraw from
the conspiracy. The evidence was sufficient to support Hilliard’s conviction for
conspiracy. See United States v. DeLucca, 630 F.2d 294, 300-01 (5th Cir. 1980).




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        Regarding Hilliard’s argument that the evidence was also insufficient to
convict him of aiding and abetting the theft of government property in violation
of § 641, the preceding discussion of the sufficiency of the evidence regarding
Hilliard’s participation in the conspiracy also applies to his aiding and abetting
culpability. The evidence establishing his participation in the conspiracy was
also sufficient for a jury to find that Hilliard was guilty of aiding and abetting
in the theft of the Government property. See United States v. Pruett, 681 F.3d
232, 247 (5th Cir. 2012); Freeman, 434 F.3d at 377.
        Hilliard argues that the district court clearly erred in ordering
restitution in the amount of $20,499 and in determining the amount of loss
which increased his offense level by four levels under U.S.S.G. § 2B1.1(b)(1)(C).
Hilliard argues that the amounts included costs associated with prosecution
and criminal investigation. He also argues that the district court erred in the
guideline calculation because the Government failed to prove the loss amount
by a preponderance of evidence, including the foreseeability of the loss of an
iPad.
        We apply the plain error standard of review because Hilliard did not
make the same objection in the district court that he makes now on appeal
concerning whether the loss was due to excluded costs or concerning the
foreseeability of the loss of the iPad. See Puckett v. United States, 556 U.S.
129, 134-35 (2009); United States v. Peltier, 505 F.3d 389, 391-92, 394 (5th Cir.
2007). The evidence at trial included recorded conversations which showed
that Hilliard was aware that the robbery would involve at least $20,000 and
iPads. The amount of loss was foreseeable to Hilliard. The $20,000 cash and
$499 for one iPad represents the property actually stolen by the persons
involved in the conspiracy and not costs to the Government as suggested by
Hilliard. The district court did not plainly err in finding the actual loss to be



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                                   No. 13-60597

$20,499 and ordering this amount to be paid in restitution. See Puckett, 556
U.S. at 134-35.
      Hilliard argues that the district court clearly erred by increasing the
offense level to level 14 pursuant to § 2B1.1(b)(14)(B) because the Government
failed to prove weapon possession by a preponderance of the evidence. He
contends that he objected to the finding in the presentence report (PSR) that
the offense involved the possession of a firearm. He cites testimony from the
trial in which Robinson denied that any of the corrupt officers possessed a
weapon, and testimony by Garrett that he did not remember guns being
involved. He argues that the information in the PSR indicating that Jackson
admitted that he had his service weapon on him when he entered the hotel
room is not sufficient.
      In the district court, Hilliard challenged the enhancement on the ground
that he did not personally possess a gun, whereas on appeal he challenges the
enhancement on the grounds that neither he nor any of his co-defendants
possessed a gun. Accordingly, we review his arguments for plain error. See
United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994).
      The PSR contained information from FBI agents that they overheard in
audio recordings of the robbery that Robinson mentioned that he had his gun
with him, and that Jackson admitted to agents after his arrest that he had his
service weapon on him when he entered the room. Hilliard filed an objection
to the PSR, stating that “the evidence established that Mr. Hilliard neither
possessed a gun nor confessed to possessing a gun.” At Hilliard’s sentencing
hearing, Hilliard’s counsel stated that he objected to the gun enhancement
based on the fact that Hilliard was not carrying a gun that night and there was




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                                       No. 13-60597

no testimony that he ever had a gun.                The district court overruled the
objection. 2
       Hilliard did not object to nor attempt to rebut the PSR’s factual summary
of the offense conduct which contained the information from the FBI agents
concerning possession of weapons by Robinson and Jackson during the
commission of the robbery. The district court was entitled to rely on those
findings in assessing the weapons enhancement. See United States v. Ruiz,
621 F.3d 390, 396 (5th Cir. 2010) (stating that district court may rely on the
information in a PSR if the defendant does not rebut the findings); United
States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995)(“The defendant bears the
burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal
evidence, the sentencing court may properly rely on the PSR and adopt it.”).
       AFFIRMED.




       2   The district court referenced its “rationale for [its] ruling [as] expressed in the
sentencing of the other defendants.” We conclude this reference is to the reasoning and not
to the testimonial evidence presented only at co-defendant Robinson’s hearing. Thus, we
reject the Government’s effort to proffer testimonial evidence from other defendants’
sentencing hearings in support of affirmance here and need not address Hilliard’s objection
to considering that evidence raised in his reply brief. We conclude that the evidence
presented in Hilliard’s case, together with the PSR, support the enhancement.


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