United States v. Hemphill

76 F. App'x 6
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 6, 2003
DocketNo. 02-3130
StatusPublished
Cited by5 cases

This text of 76 F. App'x 6 (United States v. Hemphill) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hemphill, 76 F. App'x 6 (6th Cir. 2003).

Opinion

OPINION

DOWD, Judge.

Defendant-appellant Stanson Hemphill (Hemphill) challenges his convictions and sentences on charges of bank robbery, conspiracy to commit bank robbery, and use of a firearm in relation to a crime of violence. After a thorough review of the trial transcript in light of the claimed errors, we affirm.

I.

Hemphill was one of three defendants named in a three-count indictment. He was charged as follows: Count One — conspiracy to commit bank robbery; Count Two — bank robbery of the First National Bank of Southwestern Ohio located in Hamilton, Ohio (Butler County) on May 9, 2002; and Count Three — knowing use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(l)(A)(n). As to Counts Two and Three, Hemphill was also charged as an aider and abettor.

Hemphill entered a plea of not guilty to the three counts of the indictment and was subsequently tried and convicted on all three counts. On January 29, 2002, he was sentenced to concurrent terms of 60 months on the conspiracy count and 87 months on the substantive crime of bank robbery. He also received a sentence of 84 months on the § 924 conviction, to be served consecutive to the other sentences, for a total sentence of 171 months.

Hemphill’s co-defendants Richard Depew (Depew) and Douglas E. Brown (Brown) testified for the government, as did an alleged unindicted co-conspirator, Jessica Witt (Witt). Collectively, their testimony identified Hemphill as the planner of the bank robbery that had been carried out by Depew and Brown with the assistance of Witt, the bank teller who gathered the currency under an apparent threat from Depew who displayed a handgun during the robbery. The cooperating defendants and Witt explained how Hemphill planned the robbery, provided Depew with the mask and handgun, and drove the getaway car. Hemphill’s defense was lim[9]*9ited to two witnesses who attempted to account for Hemphill’s whereabouts on the day of the robbery.

II.

Hemphill claims there were four errors committed during his trial which require reversal: (1) the government’s introduction of highly prejudicial bad acts testimony coupled with failure to give a contemporaneous limiting instruction; (2) the government’s misstatement of the law during closing argument; (3) the constructive amendment of the indictment; and (4) the insufficiency of the evidence to support the three convictions. We will address each claimed error separately.

A.

Hemphill characterizes his first claim of error as one involving prejudicial “other acts” evidence under Fed.R.Evid. 404(b).1 As our lengthy discussion below will show, that is an oversimplification. A careful review of the trial transcript reveals that, in the process of presenting relevant testimony under Fed.R.Evid. 402, two of the government’s witnesses inserted mostly unsolicited and/or gratuitous comments. The trial court was dealing with relevant testimony mixed with improper testimony and the question is, therefore, more accurately framed as whether admissibility of such mixed evidence, without a sua sponte limiting instruction, is plain error requiring a new trial, or is harmless error.

At trial, Hemphill’s position was that the handgun brandished by Richard Depew during the bank robbery belonged to Bobbi Jo Depew. Therefore, the government had to present evidence to connect Hemp-hill to that gun.2 First, Bobbi Jo Depew, sister of Richard Depew, testified that she purchased the handgun at a pawn shop, in the presence of Hemphill and at his direction. Richard Depew, who brandished the handgun during the robbery, testified that Hemphill provided the handgun.

In addition to that testimony, the government used ballistics testimony to connect Hemphill to a January 22, 2001 use of the handgun. Specifically, testimony was offered by Hamilton. Ohio police officers that a shooting was reported on January 22, 2001. Subsequently, Hemphill appeared to admit firing an unidentified gun. A spent shell casing was located at the scene of the shooting and was retained as evidence. After the bank robbery, that spent shell casing was identified by ballistics experts as having been fired from the handgun brandished in the bank robbery.

In sum, the testimony of Bobbi Jo Depew and Richard Depew, together with the ballistics testimony, was introduced to support the § 924 count in the indictment and the proposition that Hemphill was guilty on that count as an aider and abettor.

The difficulty arising from the ballistics testimony is the gratuitous commentary [10]*10that Hamilton Police Officers Ungerbuehler and Hensley made while giving relevant testimony tying Hemphill to the firing of a weapon.

Hemphill’s counsel made a timely objection prior to the introduction of the officers’ testimony and the following colloquy took place after the government began questioning Officer Ungerbuehler to establish the discovery of the spent shell casing following the shooting on January 22, 2001:

Q. I want to direct your attention back to January 22nd, 2001. Were you working that day?
A. Yes, I was.
Q. On that date did you have occasion to respond to a scene regarding a shot being fired?
A. Yes, I did.
MR. SNYDER: Your Honor. I have an objection. May we be heard?
THE COURT: Yes.
SIDEBAR CONFERENCE
MR. SNYDER: Your Honor, for purposes of making a record. I’m going to renew my objection that I cited in my motion in limine as to any testimony about the Butler County incident that we’re going to hear from a few witnesses today, and again this is for purposes of making a record.
MR. SPRINGER [AUSA]: Opposing counsel has challenged the authenticity of the gun in question here. Testimony already elicited in this trial has indicated that this particular gun was registered in the name of Bobbi Jo Depew. Testimony through one of the witnesses suggested that the Defendant was present when the gun was purchased, that the gun was purchased with the Defendant’s money, that the Defendant took possession of the gun immediately after its purchase.
This testimony that we’re getting ready to elicit from this particular witness will do two things. First of all, it will corroborate Bobbi Depew’s testimony, and, second place, the gun in the— place the Defendant with access of the gun, thereby giving him the opportunity to provide it during the conspiracy we have charged in the indictment.
THE COURT: What do you anticipate this witness would testify to?
MR. SPRINGER: This witness will testify he recovered a shell casing at the scene of this crime he responded to. That shell casing, through later witnesses, will be shown to have been fired from the gun that’s in question. THE COURT: Okay.
MR. SNYDER: From the gun?
MR. SPRINGER: From Exhibit No.

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Bluebook (online)
76 F. App'x 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hemphill-ca6-2003.