United States v. Ellis, 4th Cir. (1997)
United States v. Ellis, 4th Cir. (1997)
No. 96-4189
LEROY ELLIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CR-94-36-D)
Argued: May 9, 1997
Decided: August 6, 1997
Before HAMILTON and MOTZ, Circuit Judges, and
CURRIE, United States District Judge for the
District of South Carolina, sitting by designation.
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Affirmed by published opinion. Judge Currie wrote the opinion, in
which Judge Hamilton and Judge Motz joined.
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COUNSEL
ARGUED: Paul Graham Beers, GLENN, FELDMAN, DARBY &
GOODLATTE, Roanoke, Virginia, for Appellant. Thomas Ernest
Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Robert P. Crouch, Jr., United
States Attorney, Anthony P. Giorno, Assistant United States Attorney,
Enriquez, who had assisted in the crime and who each testified to
appellant's participation in planning and carrying out the robbery. On
January 4, 1994, a jury found appellant guilty on Count I of the
indictment, but deadlocked as to Counts II and III. 1
On May 30, 1995, the government retried appellant on Counts II
and III (hereinafter Trial #2). This time, in addition to the testimony
of Sharon Wagner, Rita Ellis and Dorla Enriquez, the government called appellant's co-defendant from Trial #1, Rodney Van Wright, who
identified appellant as one of the two robbers pictured in the bank's
surveillance photograph. On June 1, 1995, the jury returned a verdict
of guilty under Count II for the lesser included offense of unarmed
bank robbery, but acquitted appellant of the firearm charge under
Count III.
II.
Appellant cites four errors he contends require reversal of his conspiracy conviction in Trial #1: (1) the failure of the government to
state a criminal offense under 18 U.S.C. 371; (2) the suppression of
Sharon Wagner's October 1993 FBI 302 in violation of Brady v.
Maryland, 373 U.S. 83 (1963); (3) the admission into evidence of
Sharon Wagner's February 1994 FBI 302, and; (4) a lack of sufficient
evidence supporting appellant's conspiracy conviction. We examine
each of these arguments in turn.
A.
Initially, we turn to appellant's claim that the district court lacked
jurisdiction to convict him of conspiracy to commit armed bank robbery under 18 U.S.C. 371.2 For support, appellant relies on the
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1 At Trial #1, the jury also returned a guilty verdict against appellant's
co-defendant, Rodney Van Wright, who had been charged under Count
IV of the indictment with being an accessory after the fact to the bank
robbery.
2 In pertinent part, 18 U.S.C. 371 reads:
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 not more than $10,000 or imprisoned
not more than five years or both.
3
that had the evidence been disclosed the result at trial would have
been different." Wood, 116 S.Ct. at 10. The Supreme Court first considered standards of materiality in United States v. Augurs, 427 U.S.
97 (1976), where it discussed three separate situations in which a
Brady claim might arise and adopted a separate materiality standard
for each.5 Subsequently, in Bagley, the Court rejected any difference
between impeachment and exculpatory evidence for Brady purposes
and consolidated the "no request/general request" and "specific
request" scenarios under the same "reasonable probability of a different result" standard. 473 U.S. at 682.6 More recently, in Kyles, the
Court reaffirmed its Bagley formulation and further explored four
aspects of materiality that guide application of the standard.7
First, Kyles explains what is not required in demonstrating materiality -- a defendant does not have to show by a preponderance of the
evidence that disclosure of the evidence would have resulted in
acquittal. Kyles, 115 S.Ct. at 1565-66; Hays v. State of Alabama, 85
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5 See Jean v. Collins, 107 F.3d 1111, 1119 (4th Cir. 1997) (concurrence
of Hamilton, J.); Kyles, 115 S.Ct. at 1565, n.7. The first situation, where
the prosecution introduced testimony at trial that it knew or should have
known was perjured, required reversal "if there is any reasonable likelihood that the false testimony could have affected the jury." Augurs, 427
U.S. at 103. In the second case, where the government failed to turn over
a specific kind of exculpatory evidence requested by the defense, such
non-disclosure was "seldom, if ever, excusable". Id. at 106. Finally, in
the third category, where the government failed to turn over exculpatory
evidence either not requested or requested in a general way, reversal was
necessary only when withholding the evidence would be "of sufficient
significance to result in the denial of the defendant's right to a fair trial."
Id. at 108.
6 As the Court explained, "(t)he evidence is material only if there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different." Bagley,
473 U.S. at 682 (opinion of Blackmun, J.); id. at 685 (White, J., concurring in part and concurring in judgment). "A`reasonable probability' is
a probability sufficient to undermine confidence in the outcome." Id. at
682.
7 The Kyles Court restricted its materiality analysis to Brady situations
caused by prosecutorial omissions and did not "address any claim under
the first Augurs category." Kyles , 115 S.Ct. at 1565 & n.7.
8
F.3d 1492, 1498 (11th Cir.) (interpreting Kyles to mean that undisclosed evidence can require a new trial even if it is more likely than
not that a jury seeing the new evidence will still convict), cert. denied,
117 S.Ct. 1262 (1997). Second and related, it discussed what is
required -- a "showing that the favorable evidence could reasonably
be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 115 S.Ct. at 1566. Third, the
Court explained that once Brady error is found to be material, further
harmless error review is unnecessary as "`a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
trial would have been different' necessarily entails the conclusion that
the suppression must have had `substantial and injurious effect or
influence in determining the jury's verdict.'" Id. (internal citations
omitted); see Gilday v. Callahan, 59 F.3d 257, 268 (1st Cir.) (noting
that "the Bagley materiality standard necessarily requires a court to
find an impact on the jury verdict sufficiently substantial to satisfy the
Brecht harmless error test."), cert. denied, 116 S.Ct. 1269 (1996). And
finally, it noted that while courts of necessity examine undisclosed
evidence item-by-item, their materiality determinations must evaluate
the cumulative effect of all suppressed evidence to determine whether
a Brady violation has occurred. Id. at 1567, n.10.
Appellant argues that the undisclosed 302 report is material in two
respects. First, Sharon Wagner's initial statement could have strengthened his claim that he was being tried for a crime committed by Lester Fuller. In support of his claim for reversal, appellant relies on our
decisions in McDowell v. Dixon, 858 F.2d 945 (4th Cir. 1995), and
Norris v. Slayton, 540 F.2d 1241 (4th Cir. 1976).8 However, unlike
those cases where defense counsel was unaware of the exculpatory
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8 In Norris, a police report describing a rape victim's hesitation during
her initial identification of the defendant was not disclosed to the
defense. Subsequently at trial, the victim testified that when she first confronted Norris, she was certain that he had attacked her. Norris, 540 F.2d
at 1244. In McDowell, the victim's initial statements to police were that
her attacker was white. Defense counsel was told only of the victim's
subsequent description of her assailant -- that he was black, with a
medium afro and a medium build. At trial, the victim testified that she
had always described her attacker as a black man with flat hair, big eyes,
and a flat nose. McDowell, 858 F.2d at 947.
9
evidence until after trial, here Sharon Wagner admitted both on direct
and on cross-examination at Trial #1 that she had told FBI investigators in October 1993 that Lester Fuller and Rodney Van Wright had
robbed the bank. J.A. at 111, 165-66. Thus, unlike McDowell and
Norris where the contrast between the exculpatory evidence and the
witnesses' in-court testimony brought into question their credibility,
here Sharon Wagner's prior statement supports her trial testimony
that she had initially lied to FBI investigators in order to protect her
brother and appellant.
The government contends that the disclosure of the exculpatory
information at Trial #1 aligns this case closely with the facts in United
States v. Curtis, 931 F.2d 1011 (4th Cir. 1991). In that case appellant
Curtis challenged his possession and conspiracy convictions arguing
that the prosecution's failure to disclose an exculpatory memorandum
summarizing a witness's initial statement to police violated his right
to a fair trial. The Curtis court rejected appellant's claim and distinguished Norris based on two factors: (1) that the appellant knew
about the witness's exculpatory statement prior to trial, and; (2) that
the witness testified about his prior statement at Trial #1 and was
cross-examined by appellant concerning it. Id. at 1014. Admittedly,
the facts of the instant case differ in that only the second factor is
present here. However, because Sharon Wagner testified at trial to her
initial false identification and was cross-examined regarding it, we
believe that disclosure of the actual 302 report would not, within reasonable probability, have caused a different result. See United States
v. Manning, 56 F.3d 1188, 1198 (9th Cir. 1995) (noting that failure
to disclose an investigative report identifying an alternative suspect
does not require reversal where defendant was able to discuss alternative suspect with interviewing officer on cross-examination and again
on recross-examination).9
As a second line of attack, appellant argues that the October 302
report reveals a number of inconsistencies (in addition to naming Fuller and Van Wright as the bank robbers) which appellant would have
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9 Appellant's subsequent conviction on the substantive crime (unarmed
bank robbery) in his second trial, after having received the October 1993
report, only further supports our belief that the result would not have
been different.
10
Similarly here, further impeachment of Sharon Wagner by highlighting additional inconsistencies between her trial testimony and her
October 1993 statement would not, within reasonable probability,
have led to a different result. From the partial trial record before us,
it is evident that Sharon Wagner admitted to having lied a number of
times: lying to get into the country (J.A. at 152, 162), lying to get a
Virginia drivers license and a Social Security card (J.A. at 109, 151),
lying to get a job (J.A. at 153), being convicted of four misdemeanors
involving dishonesty (J.A. at 110, 151), and lying initially about who
was responsible for the bank robbery (J.A. 110-11, 165-66, 178). In
addition, the jury learned that she had allowed other individuals to sell
crack out of her residence (J.A. at 155, 191), and that she had agreed
to testify as part of her own plea agreement (J.A. 115-117, 159-61),
which further tarnished her credibility as a witness. As a result of this
testimony, her additional lies to the FBI are either insignificant or
mere permutations of her "big" lie as to who robbed the bank. In any
estimation, their cumulative effect is not material.
Thus, considering the cumulative effect of the suppressed evidence,
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of evidence."). Hays is a particularly apt case for comparison, for there
the appellant argued that the state had violated its Brady obligation by
failing to disclose some 20 statements made by Knowles, the state's main
witness, which could have aided impeachment. Hays, 85 F.3d at 1497.
While appellant noted at least 4 inconsistencies that could have been
highlighted only by reference to the suppressed statements, the court
rejected this argument explaining:
Taken together, these assertions do not undermine confidence in
the verdict. The main reason for this is that most of the asserted
uses of the suppressed statements would have been redundant,
because Hays's counsel in fact elicited testimony from Knowles
on the witness stand acknowledging that he had been inconsistent on many of the listed points. And on others (particularly the
relatedness of the murder and the cross-burning), no obvious reason suggests that the jury would have regarded the inconsistency
as particularly significant. Therefore, we conclude that Petitioner's argument on the materiality of the alleged Brady statements
fails.
Id. at 1499.
12
we find that the disputed 302 report fails "to put the whole case in
such a different light as to undermine our confidence in the verdict."
Kyles, 115 S.Ct. at 1566. As Kyles explains, whether evidence withheld is material is not a sufficiency of evidence test. Id. But by the
same token, post-Kyles we do not ignore other evidence presented at
trial in determining our confidence in the outcome. 11 Instead, we evaluate the whole case, taking into account the effect that the suppressed
evidence, had it been disclosed, would have had on the evidence considered at trial.
Even from the partial record provided to this court, it is clear that
Sharon Wagner's testimony was not the only evidence linking appellant to the conspiracy. Appellant's cousin Rita Ellis claimed to have
overheard conspiratorial conversations between Anthony Wagner and
Appellant (J.A. at 215); and testified that she was asked to drive the
getaway car, that she was to get $5000 for driving the getaway car
(J.A. at 218), and that on the day of the robbery she saw Anthony
Wagner and Leroy Ellis come out of the woods and climb into the
trunk. (J.A. at 231).
In light of this additional testimonial evidence and our conclusion
that the disputed 302 contains neither unknown exculpatory information nor material impeachment evidence, our confidence in the jury's
verdict remains strong. Accordingly, we will not disturb the conspiracy conviction obtained at Trial #1.
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11 See Wood, 116 S.Ct. at 11 ("In short, it is not `reasonably likely' that
disclosure of the polygraph results . . . would have resulted in a different
outcome at trial. Even without Rodney's testimony, the case against
respondent was overwhelming . . . . In the face of this physical evidence,
as well as Rodney and Tracy's testimony -- to say nothing of the testimony by Bell that the state likely could introduce on retrial -- it should
take more than supposition on weak premises offered by the respondent
to undermine a court's confidence in the outcome.") (emphasis added);
Hoke, 92 F.3d at 1357 ("Nevertheless, we are convinced beyond any
doubt that, in light of the overwhelming evidence that Still was raped by
Hoke, no reasonable juror would conclude that this single act of anal
intercourse almost a year earlier was material to the question of whether
Still consented to having sex with Hoke.") (first emphasis added).
13
C.
Third, Appellant argues that the district court erred in admitting
Sharon Wagner's February 1994 FBI 302 into evidence and that his
Motion in Limine filed prior to trial objecting to the admission of certain statements preserves this issue on appeal.
As this court recently explained in United States v. Williams, 81
F.3d 1321 (4th Cir. 1996), "motions in limine may serve to preserve
issues that they raise without any need for renewed objections at trial,
just so long as the movant has clearly identified the ruling sought and
the trial court has ruled upon it." Id. at 1325 (emphasis added). Here,
the district court deferred its decision on appellant's motion prior to
trial, noting its inability to rule on the admission of the statements in
a vacuum.12 Thus, appellant's subsequent failure to object, both when
the prosecutor offered the 302 into evidence (J.A. at 203) and when
the court accepted it into evidence for limited purposes (J.A. at 25556), requires that we review admission of the 302 for plain error.
United States v. Wilkerson, 84 F.3d 692, 695 (4th Cir. 1996); United
States v. Brewer, 1 F.3d 1430, 1434 (4th Cir. 1993) (citing F.R.E.
103(a)(1), 103(d) and F.R.C.P. 52(b)).
To warrant reversal under this high standard, a reviewing court
must "(1) identify an error, (2) which is plain, (3) which affects substantial rights, and (4) which seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings." Brewer, 1 F.3d at 1434;
see also United States v. Olano, 507 U.S. 725, 731-32 (1993) (clarifying the standard for "plain error" review by the courts of appeals
under F.R.C.P. 52(b)).
Here, our task is made easy by the lack of error, much less plain
error, in the district court's admission of the February 302. Appellant
is simply wrong in assuming that "the only possible avenue for admitting this evidence was Rule 801(d)(1)(B) of the Federal Rules of Evidence." Brief of Appellant at 38. Even before the adoption of the
federal rules, this court recognized that "where a cross-examiner has
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12 On the partial record before us, which does not include Appellant's
written Motion in Limine filed prior to the first trial, we are unable to
determine whether or not appellant clearly identified the ruling sought.
14
Here, the district court properly told the jury to use the prior consistent statements only to assist in determining the credibility of the
witness.17 Appellant did not object to this limitation, and we follow
the general rule that assumes a jury to have followed the court's
instructions. United States v. Shannon, 512 U.S. 573, 584 (1994).
On cross-examination, appellant strove to demonstrate that Sharon
Wagner's February 1994 statement to FBI investigators was at odds
with her trial testimony. He pointed to specific discrepancies concerning her trial testimony (1) that she could identify the driver of the getaway car; (2) that she had been offered $5,000 to drive the getaway
car, and; (3) that she had seen appellant on the day of the robbery
walking towards her house with a knitted wool mask in hand. J.A. at
175-77, 198-99 & 200-02. In so doing, appellant made a conscious
decision to highlight these inconsistencies in order to undermine
Sharon Wagner's credibility in the eyes of the jury. The rules allow
such tactics, but they do not allow appellant to have his cake and eat
it too. See Parodi, 703 F.2d at 786 (citing the reasoning of the district
court affirmed by the Seventh Circuit in United States v. Baron, 602
F.2d 1248 (7th Cir. 1979)).18
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17 The entirety of the court's instruction is as follows:
THE COURT: Ladies and gentlemen, I have decided to admit
Government Exhibit No 1. If you recall it was a portion of a
statement that was used in cross-examination of Ms. Wagner and
I'll need to give you a special limiting instruction about this.
This is a statement that she gave to the FBI. You cannot use it
for proof of the charges here. Her testimony is the only thing that
you can consider with regard to whether the government has
proved its charges or not. The only reason I'm letting this come
into evidence is so you can compare it, if you want to -- you
don't have to, this is up to you -- in making your credibility
determination to see whether she has made any -- if her testimony is any different from what she gave the FBI agent, so
that's the sole purpose that it's coming in for is in judging her
credibility. As I say, we will need a cleaned up copy, but it will
be admitted.
J. A. at 255-56.
18 In arriving at this conclusion, we are guided by the Sixth Circuit's
decision in Engebretsen, which upheld a lower court's admission of
18
admitting the 302 into evidence for the sole purpose of assisting the
jury's determination of Sharon Wagner's credibility as a witness.
D.
Finally, appellant challenges the sufficiency of the evidence supporting his conspiracy conviction. On direct review of this issue, we
honor the rule that a jury verdict "must be sustained if there is substantial evidence, taking the view most favorable to the Government,
to support it." United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc) (emphasis in original) (quoting Glasser v. United
States, 315 U.S. 60, 80 (1942)), cert. denied, 117 S.Ct. 1087 (1997).
Sustaining a conspiracy conviction under 18 U.S.C. 371 requires
that the government prove: (1) an agreement between two or more
people to commit a crime, and (2) an overt act in furtherance of the
conspiracy. United States v. Chorman, 910 F.2d 102, 109 (4th Cir.
1990). The existence of a "tacit or mutual understanding" between
conspirators is sufficient evidence of a conspiratorial agreement. Id.
Such proof need not be direct, but may be inferred from circumstantial evidence. Burgos, 94 F.3d at 858. Moreover, once a conspiracy
is established, "even a slight connection between a defendant and the
conspiracy is sufficient to include him in the plan." United States v.
Laughman, 618 F.2d 1067 (4th Cir. 1980).
At trial, both Sharon Wagner and Rita Ellis testified that they heard
appellant and Anthony Wagner discussing plans to rob a bank.
According to these two witnesses, appellant and Anthony Wagner
made plans to "make a withdrawal" from the bank, to get masks and
sweatshirts that could be worn during the robbery, to steal a getaway
car, to pay Rita Ellis $5,000 for her help in aiding their escape, to
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under Rules 401 and 402. However, it remains for the parties to raise and
the trial courts to determine whether or not allowing the document to
enter the jury room would unduly prejudice the cross-examining party.
The court has a number of weapons to guard against such prejudicial
effect: e.g., admitting statements in the document through testimony,
having the document read to the jury, or instructing the jury as to the limited purpose of the exhibit. However, these options are best left to the
discretion of the trial court. Engebretsen, 21 F.3d at 730 n.2.
20
burn their clothes following the robbery, and to travel after the robbery to New York and then overseas to Belize. Even on these limited
facts, such evidence clearly supports the inference that appellant was
part of the agreement to rob the bank.
In addition, other testimony reveals a number of overt acts performed in furtherance of the conspiracy. According to the government's witnesses, appellant and Wagner drove to the bank in a stolen
car. Following the robbery, they abandoned the stolen car and hid in
the trunk of another car driven by Rita Ellis. They ordered others to
burn the clothing they had worn during the robbery, and then left
town, going first to North Carolina and then to New York where they
spent some of the stolen money and paid other members of the conspiracy for their part in the crime. As a result, we conclude that the
jury had sufficient evidence to support each element of a conspiracy
conviction under 18 U.S.C. 371.
III.
In challenging his conviction for unarmed bank robbery in Trial #2,
appellant cites a string of errors he contends justify reversal. Thematically, these challenges fall roughly into three categories of errors:
incorrect jury instructions, erroneous evidentiary rulings, and
improper prosecutorial actions. We again consider each of appellant's
arguments in turn.
A.
Within the first of these three categories, appellant alleges that
three errors made by the district court independently warrant reversal
of appellant's unarmed bank robbery conviction: issuing a jury
instruction on aiding and abetting liability, rejecting appellant's proposed instruction on reasonable doubt, and declining to answer the
jury's question as to the identity of individuals in a photograph. For
the reasons that follow, we reject appellant's claim of reversible error.
1.
At the close of the evidence in Trial #2, the district court judge
21
liability for aiding and abetting. Thus, far from broadening appellant's
potential liability, this instruction merely conformed to the charges by
the grand jury. Though this fact does not dispose of the possibility
that appellant was prejudiced by the government's"constructive narrowing" of the indictment, it does preclude a finding of per se reversible error. See United States v. Morganstern, 933 F.2d 1108, 1115 (2d
Cir. 1991) ("[W]here charges are `constructively narrowed' or where
a generally framed indictment encompasses the specific legal theory
or evidence used at trial, no constructive amendment occurs.").
However, under the facts of this case, we find no merit in the argument that the prosecutor's references to appellant's presence in the
bank as "the only issue in the case" constructively narrowed the
indictment in any prejudicial way. As the trial judge concluded in his
post-trial Memorandum Opinion, this statement "did not limit the
prosecutor's case, but instead illustrated only the issue that the prosecutor thought was the sticking point in the case." J.A. at 100.
In this respect, the actions of the government stand in marked contrast to the representations made by the prosecutor in San Juan. In
that case, the government charged defendant with failing to report
currency upon entering the United States. In trying the case, the prosecutor not only repeatedly emphasized his theory that the crime had
taken place on the bus, but also affirmatively rejected the possibility,
later included in the court's jury charge, that the crime could have
taken place outside the bus. San Juan, 545 F.2d at 317. In United
States v. Hobby, 702 F.2d 466 (4th Cir. 1983), our own court
endorsed the Second Circuit's reasoning in San Juan commenting that
defendant had been deprived of due process "since the prosecution
had provided defense counsel with abundant reason to believe that he
could and should focus his defense on the events and occurrences on
the bus." Id. at 470.
While we continue to adhere to that principle, we find the facts in
the instant case to be far less compelling. Here, the prosecutor's representations were significantly more equivocal and the potential for
surprise to appellant substantially less likely. Indeed, far from a situation where appellant was led "to forego any defenses he might otherwise have asserted," the record here clearly reveals appellant's efforts
to counter testimony presented by witnesses at trial that supported an
24
F.2d 1098, 1109 (4th Cir. 1992). Here, appellant requested that jury
be charged to find appellant not guilty if ". . . you believe that a bank
robbery occurred but you have reasonable doubt that the defendant,
rather than Lester Fuller or someone else, robbed the bank . . . ." J.A.
at 81. The court rejected appellant's request but charged the jury in
general terms that the government bore the burden of establishing
guilt beyond a reasonable doubt. While appellant understandably
would have preferred his version, we fail to find any abuse of discretion in the trial court's rejection of appellant's redundant instruction.22
3.
Last, we consider the trial judge's unwillingness to answer the
jury's request to identify two men pictured in a Polaroid photograph.
The photograph, which showed appellant and Anthony Wagner standing side-by-side, was introduced into evidence during appellant's
cross-examination of government witness, Rodney Van Wright, and
supported appellant's argument that the two men were roughly the
same height. During deliberations the jury asked the court the following question: "Who are the two men standing next to each other in the
photograph that is marked Defendant's Exhibit #12?" J.A. at 93. The
court refused to answer and appellant objected arguing that such
information went to a critical issue in the case-- the relative height
of the two men.
At the outset, we acknowledge that "[w]hen a jury makes explicit
its difficulties a trial judge should clear them away with concrete
accuracy." Bollenbach v. United States, 326 U.S. 607 (1946); Horton,
921 F.2d at 546. Yet, by the same token, "the court must be careful
not to invade the jury's province as fact finder." United States v.
Blumberg, 961 F.2d 787, 790 (8th Cir. 1992); see also United States
v. Nunez, 889 F.2d 1564, 1569 (6th Cir. 1989). Such a distinction is
consistent with our fundamental belief that it is the court that provides
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22 Additionally, we dismiss appellant's related claim that the district
court abused its discretion by instructing jurors on the lesser included
offense of unarmed bank robbery under 18 U.S.C. 2113(a). Appellant's
subsequent acquittal on Count III clearly demonstrates that use of a firearm to commit the bank robbery was factually in dispute. Thus, we find
that the court's instruction on unarmed bank robbery was not improper.
26
the legal yardstick and the jury that measures the evidence.23 See
Bollenbach, 326 U.S. at 614.
In contrast to the cases relied on by appellant, the trial court here
was within its discretion in refusing to answer the jury's question. As
the court recognized, a direct response would have gone far past
recounting trial testimony and would have risked stamping the court's
imprimatur on the factual conclusions proffered by appellant at trial.
While we agree with appellant that the trial judge could have
responded by having the appropriate part of the transcript read to the
jury, such action was not requested by appellant and was, in any
event, appropriately within the discretion of the trial court.
B.
Additionally, appellant argues that the court made three erroneous
evidentiary rulings that require reversal of his bank robbery conviction: allowing Sharon Wagner to testify about her prior consistent
statements, allowing the government to present evidence of appellant's travel to Belize, and allowing Rodney Van Wright to identify
appellant as one of the two robbers pictured in the bank's surveillance
photograph. In considering these claims, we are guided by our wellsettled rule that "decisions regarding the admission and exclusion of
evidence are peculiarly within the province of the district court, not
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23 The full quotation from Bollenbach clearly reveals that the scope of
court's obligation is not open-ended, but is limited to clarifying questions
of law:
The jury's questions, and particularly the last written inquiry in
reply to which the untenable "presumption" was given, clearly
indicated that the jurors were confused concerning the relation of
knowingly disposing of stolen securities after their interstate
journey had ended to the charge of conspiring to transport such
securities. Discharge of the jury's responsibility for drawing
appropriate conclusions from the testimony depended on discharge of the judge's responsibility to give the jury the required
guidance by a lucid statement of the relative legal criteria. When
a jury makes explicit its difficulties a trial judge should clear
them away with concrete accuracy.
Id. at 612.
27
the flight did not occur until three weeks after commission of the
crime). Again we believe that the district court's admission of this
evidence was on firm ground.
At Trial #2, Sharon Wagner testified to having heard appellant and
Anthony Wagner make plans to leave Virginia after the bank robbery,
traveling first to New York in order to spend some of the stolen
money and then out of the country to Belize. J.A. at 316. Because
such travel was part of the overall plan to rob the bank, we consider
it highly probative in tending to show that appellant was one of the
robbers. Likewise, we believe that the evidence of appellant's circuitous travel immediately following the robbery to Eden, North Carolina, then to New York, and then to Belize could properly be
considered by the jury as evidence of flight. Appellant's characterization of a two-week gap between the bank robbery and his trip to
Belize is not persuasive in light of the testimony presented at trial that
described this trip as part of appellant's ongoing plan to escape detection by the police. Thus, we find no abuse of discretion.
3.
Finally, appellant claims that the district court improperly allowed
Rodney Van Wright, a co-defendant in Trial #1, to identify appellant
in a bank surveillance photograph by "the shape of his body". J.A. at
394. Again, we find appellant's argument to be without merit.
"A lay witness may give an opinion concerning the identity of a
person depicted in a surveillance photograph if there is some basis for
concluding that the witness is more likely to correctly identify the
defendant from the photograph than the jury." United States v.
Robinson, 804 F.2d 280, 282 (4th Cir. 1986) (quoting United States
v. Farnsworth, 729 F.2d 1159, 1160 (8th Cir. 1984)). At Trial #2, Van
Wright testified that he had known appellant for approximately five
years, that he saw appellant on the day before and the day of the robbery, that he met appellant in New York a few days after the robbery,
and that he traveled to Belize with appellant thereafter. In contrast,
the jury saw appellant only during the trial. Thus, allowing Van
Wright to assist the jury in identifying individuals in the bank photograph was proper, for ". . . testimony by those who knew defendants
over a period of time and in a variety of circumstances offers to the
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jury a perspective it could not acquire in its limited exposure to defendants." United States v. Allen, 787 F.2d 933, 936 (4th Cir. 1986). Particularly in this case, where the two men photographed were wearing
masks and hooded sweatshirts, Van Wright's ability to recognize the
defendant by the shape of his body was helpful to the jury and thus
was properly admitted. See id. at 936 ("This fuller perspective is especially helpful where, as here, the photographs used for identification
are less than clear.").
IV.
Finally, appellant insists that his conviction at Trial #2 for unarmed
bank robbery must be overturned, first, because of the prosecution's
reliance on the alleged perjury of Sharon Wagner and second, because
of improper remarks made by the prosecutor in his closing statement.
When faced with a claim of prosecutorial misconduct, we review a
district court's factual findings for clear error; if, as here, no factual
findings exist, our review is plenary. United States v. McDonald, 61
F.3d 248, 253 (4th Cir. 1995).
Initially, we consider appellant's contention that his conviction,
based in part upon the perjured testimony of Sharon Wagner, violated
his constitutional right to due process. The government violates its
duty to deal fairly with a defendant where it either solicits testimony
it knew or should have known to be false or allows such testimony
to pass uncorrected. Kelly, 35 F.3d at 933. Such a violation is material
and requires reversal where "there is any reasonable likelihood that
the false testimony could have affected the judgment of the jury."
Augurs, 427 U.S. at 103.
At Trial #2, Sharon Wagner testified that her brother was approximately five feet nine inches tall. Appellant claims that this was perjury. For support, he relies on Sharon Wagner's testimony five
months earlier at Trial #1 in which she claimed to be unsure of her
brother's height, but then agreed with the prosecutor that he was probably about five foot four inches tall. In addition, other evidence supports appellant's contention that Anthony Wagner was much shorter
than five feet nine: an FBI "rap sheet" listed Antony Wagner as five
feet two inches tall, government witness Dorla Enriquez testified that
Sharon Wagner was several inches taller than Anthony Wagner, and
a Polaroid photograph of appellant and Anthony Wagner introduced
into evidence showed the two men to be roughly the same height
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(appellant was measured during the trial to be five feet five and a half
inches tall).
Appellant insists that the government's failure to correct Sharon
Wagner's trial testimony requires reversal of his conviction for
unarmed bank robbery. He argues that exposing this lie could have
eliminated possible confusion as to the relative heights of Anthony
Wagner and appellant caused by the conflict between Sharon Wagner's testimony and the Polaroid photograph of the two men. In addition, he claims that revealing this perjury could have led the jury to
completely discount the credibility of the government's star witness
and thus resulted in a different verdict.
Because we do not believe that Sharon Wagner's trial testimony
was perjury, we do not reach the materiality of her statements. Estimations of height are matters of perception, not fact. As a result, in
the absence of conclusive proof that Sharon Wagner actually knew
how tall her brother was, the conflict between her testimony and other
evidence presented at trial proves only that she was mistaken, not that
she lied. Contrary to appellant's contention, we believe her testimony
from Trial #1 serves more to establish her indecisiveness than her
knowledge of her brother's height.24 In addition, appellant fails to
establish that the government knew or should have known that Sharon
Wagner's estimation was wrong. Anthony Wagner was a fugitive; at
no time during the trial was he available to be measured by the government. The fact that his "rap sheet" listed him as five feet two is not
conclusive evidence of his height, and thus serves, as did Sharon
Wagner's testimony, only as an estimate.
Finally, we agree with the district court that the prosecutor's references in his closing argument to his own nearsightedness and his personal view as to the weight of certain evidence does not require that
_________________________________________________________________
24 Sharon Wagner's testimony at Trial #1 on cross-examination reads
as follows:
Q: How tall is your brother, Anthony?
A: I'm not sure.
Q: Is he about five four?
A: I'm not sure; probably.
J.A. at 204.
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