(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-5207
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LARRY WAYNE MCCRAY,
CEDRIC J. SMITH a/k/a
"Set-T" Defendants-Appellants.
Appeal from the United States District Court
For the Western District of Louisiana
91 50088 03
July 7, 1993
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
Larry Wayne McCray and Cedric J. Smith were convicted of bank
robbery and carrying a firearm during a crime of violence. They
were charged together with four counts of bank robbery and with

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four counts of carrying firearms during the robberies: Count One--
the January 24, 1990, robbery of the Pioneer Bank & Trust Co. on
Line Avenue in Shreveport, Louisiana; Count Three--the February 23,
1990, robbery of the Premier Bank & Trust Co. on Greenwood Road in
Shreveport, Louisiana; Count Five--the February 27, 1990, robbery
of the Hibernia Bank on Lakeshore Drive in Shreveport, Louisiana;
and Count Seven--the March 14, 1990, robbery of the Premier Bank on
Line Avenue in Shreveport, Louisiana. Smith was also charged
separately in Count Nine for a robbery on June 1, 1990, of the
First National Bank of Mansfield in Stonewall, Louisiana.
On February 21, 1991, after being arrested in connection with
another bank robbery, McCray gave a confession to these four
robberies to Shreveport Police Detective Glenn Schach. McCray took
police officers to the four banks which he had robbed, explained
how the robberies were committed, and told police the names of
other persons involved in the robberies. The content of McCray's
confession was introduced into evidence at McCray's and Smith's
joint trial through Schach's testimony. Because McCray identified
Smith as one of the other robbers, the tapes and transcripts of
McCray's confession were received into the record, but the district
court ordered that they were not to be listened to by the jury or
referred to by the attorneys.
The government introduced other evidence implicating Smith in
five robberies. Smith's fingerprint was found on the teller cage
of the Hibernia Bank in a location consistent with a surveillance
video of one of the robbers shown leaping over the teller's cage.

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Lisa Shelton, a teller at Hibernia Bank, identified Smith as one of
the robbers.
Smith was also identified by a teller, Glenda Harper, in the
Premier Bank robbery on Greenwood Road. "Bait money" consisting of
$20 bills with recorded serial numbers from the Premier Bank
branches on Greenwood Road and Line Avenue, given to Smith by the
tellers during the robberies, was recovered after Smith's sister
deposited $8,800 in cash, given to her by Smith, in her account at
Premier Bank.
Steve Green and Adam Hayes, Smith's accomplices in one of the
five robberies, testified about their roles and Smith's role in the
June 1 robbery of First National Bank in Stonewall, Louisiana, and
Hayes testified about Smith's and McCray's roles in the March 14,
1990 robbery of Premier Bank on Line Avenue.
OPINION
The Government argues that this Court does not have
jurisdiction to consider Smith's appeal because he did not file a
written notice of appeal within the delays allowed by Fed. R. App.
P. 4(b). The Government contends that Smith's oral notice of
appeal is not sufficient. Smith contends that his oral notice of
appeal, supplemented by his later written notice, was effective.
The parties were ordered to brief this issue in the briefing
notice.
Smith gave oral notice of appeal on November 12, 1992, at his
sentencing hearing. The district court clerk noted this in the
minutes of sentencing on the docket sheet. Smith's attorney filed

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a written notice of appeal on January 6, 1993. No document labeled
as a notice of appeal was filed within the ten days allowed by Rule
4(b), and no document was filed within the thirty extra days
allowed under Rule 4(b) which could be considered a motion for
excusable neglect. See United States v. Golding, 739 F.2d 183, 184
(5th Cir. 1984).
The Government cites O'Neal v. United States, 264 F.2d 809
(5th Cir.), modified, 272 F.2d 412 (5th Cir. 1959), as authority
for its argument that this Court does not have jurisdiction. In
O'Neal, this Court dismissed an appeal where the only notice of
appeal was given orally, although the district court clerk
referenced the oral notice in a minute entry in the docket sheets
and in a subsequent letter to the parties. This Court later
modified O'Neal and found jurisdiction based on the fact that
O'Neal had filed an appeal bond within the appeal delays.
Smith filed a financial affidavit in the district court to
support his request to have counsel appointed to represent him on
appeal. Although the affidavit does not bear a stamp indicating
the date of filing, it was signed on November 12, 1992, and the
district court appointed appellate counsel on November 18. Smith
was sentenced on November 12, and judgment was entered on November
23.
In Smith v. Barry, U.S. , 112 S. Ct. 678, 682, 116 L.
Ed. 2d 678 (1992), the Supreme Court held that an appeal brief
filed within the period for filing a notice of appeal, if it met
the requirements of Fed. R. App. P. 3(c), could be considered as a

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notice of appeal. In keeping with this principle of liberal
construction, the affidavit in this case can be considered as
Smith's notice of appeal, because it reasonably complies with the
requirements of Rule 3(c). It indicates his name, Cedric Smith,
and that he is the appellant; it indicates the case name, the
district court case number, and the statutes under which he was
convicted, which could be construed as stating the judgment from
which he is appealing; and it indicates that he is appealing from
the Western District of Louisiana, for which the only avenue of
appeal is the Fifth Circuit. This interpretation is consistent
with recent circuit cases decided after Smith v. Barry. See U.S.
v. Moats, 961 F.2d 1198, 1204 (5th Cir. 1992) (petition for
permission to appeal from an interlocutory order functioned as
notice of appeal); United States v. Carson, 969 F.2d 1480, 1486 n.2
(3rd Cir. 1992) (letter by attorney to judge requesting informa
pauperis (IFP) status functioned as notice of appeal). United
States v. Lopez, No. 92-4901, (5th Cir. June 23, 1993, unpublished)
(written notices of appeal prepared and signed by clerk). We find
appellate jurisdiction exists in this case.
Smith argues that the district court erred in overruling his
motion for mistrial on the grounds that the introduction of
McCray's statement through the testimony of Schach violated his
Sixth Amendment right to confrontation under Bruton v. United
States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
Because McCray's statement named Smith as an accomplice in the
robberies, the Government did not play the tape or make the

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transcripts available to the jury. Instead, the Government
introduced the substance of McCray's confession through Detective
Schach's testimony. Schach did not identify Smith as McCray's
accomplice; however, he did state that McCray had referred to his
accomplice by name and described the actions of this other robber.
After Schach had testified at some length about McCray's
confession, Smith's attorney made a motion for mistrial based on
Bruton. He argued that the manner in which the U.S. Attorney was
questioning Schach regarding whether McCray had named his
accomplice created the inference that Smith was this other person.
The district court instructed the U.S. Attorney to avoid asking
Schach if McCray had mentioned the name of the other person and
denied the motion for mistrial. Smith's counsel agreed that the
Government's promise to not ask Schach any further about whether
McCray had mentioned the name of the other robber was satisfactory.
The Government argues that Smith has not preserved this issue
for appeal because his objection was untimely and because the
Government restricted its questioning to defense counsel's
satisfaction with no further objections. Because Smith did make an
objection to the testimony and the record is adequate for review,
Smith has preserved this issue for appeal.
In Bruton, the Supreme Court held that a defendant is deprived
of his rights under the Confrontation Clause of the Sixth Amendment
when his nontestifying co-defendant's confession naming him as a
participant in the crime is introduced at their joint trial, even
if the jury is instructed to consider the confession only against

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the confessor. 391 U.S. at 126. This Court reviews Bruton issues
under the abuse of discretion standard. United States v. Beaumont,
972 F.2d 91, 95 (5th Cir. 1992).
The Government argues that this case does not present a Bruton
issue because Schach's testimony did not specifically name Smith.
Smith argues that because he and McCray were the only people on
trial, the only reasonable conclusion is that McCray was referring
to Smith.
A defendant's Sixth Amendment right to confrontation is not
violated unless the co-defendant's statement directly incriminates
him without reference to other admissible evidence. Beaumont, 972
F.2d at 95. In Beaumont, the co-defendant stated that he got the
money from and was doing a favor for "a friend." Other admissible
evidence led to the conclusion that the "friend" was the defendant.
This Court held that the statements did not directly implicate the
defendant, and therefore, did not violate Bruton. Id.
In United States v. Espinoza-Seanez, 862 F.2d 526, 533-35,
(5th Cir. 1988), the confession of a co-defendant was introduced
which referred to two other members of a conspiracy. These
defendants were not referred to by name, but as "the man" who was
helping him distribute the marijuana and some one else who was
supposed to pick up a car. This Court stated that it was not the
statement which implicated these two defendants but their own
actions. This Court held that the confession was properly
admitted. Id.

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The district court did not abuse its discretion in denying
Smith's motion for a mistrial. McCray's statement as testified to
by Schach did not directly implicate Smith. McCray merely
described the actions of his accomplice. Smith was implicated by
other evidence, the testimony of the bank tellers and his
accomplice Hayes, the surveillance videos, and his fingerprints,
which matched his actions to those described by McCray. That Smith
was the other person referred to by McCray's statement was not the
only logical conclusion to be drawn from the statement alone. The
indictment charged McCray, Smith, and others known and unknown.
McCray argues that the evidence was insufficient to convict
him because the Government's case was based entirely upon his
recanted statements made when his capacity to act rationally was
diminished by alcohol and drug use.
McCray gave his statement regarding his participation in the
four robberies on February 21, 1991. On February 25, McCray denied
that he had participated in these robberies. He claimed at that
time that he had been "high" when he gave the statement on the
21st. He claimed to have smoked drugs and drank alcohol.
McCray filed a motion to determine the voluntariness of his
statement in the district court. The district court held a
suppression hearing and ruled that the statement was voluntary and
admissible. The district court specifically found that McCray's
claim that he was under the influence of drugs and alcohol at the
time he gave the statement was incredible in view of the testimony
of the officers and from listening to the tape.

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McCray does not challenge this finding by the district court.
He does not challenge the admissibility of the confession. He
merely argues that his confession to the four robberies, given at
a time when his faculties were impaired, was insufficient to
support his conviction. He contends that there was no other
physical evidence linking him to the crimes, yet he does not argue
which elements of the crimes were not proven by his confession.
McCray moved for judgment of acquittal at the close of the
Government's case, and the district court assumed a motion for
judgment of acquittal at the close of all the evidence. "The
standard for review for sufficiency of evidence is whether any
reasonable trier of fact could have found that the evidence
established guilt beyond a reasonable doubt." United States v.
Garza, 990 F.2d 171, 173-74 (5th Cir. 1993) (internal quotations
and citation omitted).
McCray was convicted under 18 U.S.C. §§ 924(c) and 2113(a) and
(d). Section 2113(a) requires proof that the defendant, "by force
and violence, or by intimidation, takes, or attempts to take, from
the person or presence of another, or obtains or attempts to obtain
by extortion 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) (West Supp. 1993). Section
2113(d) increases the penalty if the defendant commits the offense
in subsection (a) by putting in jeopardy the life of any person by
the use of a dangerous weapon. 18 U.S.C. § 2113(d) (West 1984).

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Section 924(c) increases the penalty if the defendant uses a
dangerous weapon during a crime of violence. 18 U.S.C. § 924(c)
(West Supp. 1993).
Schach testified at trial that McCray confessed that he had
entered the four banks in question armed with weapons, that he
ordered the people in the bank to lay on the floor while his
accomplice got the money from behind the counters, and that they
exited the bank with the money. Schach's testimony relating
McCray's confession was sufficient to support McCray's convictions.
McCray's attorney cross-examined Schach about McCray's
statement given a few days later in which McCray recanted and
claimed incapacity due to drugs and alcohol. On redirect
examination, Schach testified that he saw no evidence of McCray's
use of drugs or alcohol. The jury was free to believe McCray's
first statement in which he confessed to the robberies, and this
Court cannot supplant the jury's choice. Garza, 990 F.2d at 174.
AFFIRMED.

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Staff counsel makes no recommendation on this issue and leaves
the ultimate decision as to whether the affidavit should be
considered as Smith's notice of appeal to the Court. However,
staff counsel will address Smith's issue on appeal in case this
Court decides it has jurisdiction.

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