United States v. Marks

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 6, 2000
• Docket: 98-6044
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION 16 United States v. Nos. 98-6044/6048/6216 Pursuant to Sixth Circuit Rule 206 Marks, et al. ELECTRONIC CITATION: 2000 FED App. 0124P (6th Cir.) File Name: 00a0124p.06

III. CONCLUSION The judgment of the district court is AFFIRMED. UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  UNITED STATES OF AMERICA,  Plaintiff-Appellee,   Nos. 98-6044/ v.  6048/6216 > JAMES D. MARKS (98-6044),  MAURICE NAVARRO BROOKS    (98-6048), ROBERT LEE

Defendants-Appellants.  AGUON (98-6216), 1 Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 97-00024—Thomas B. Russell, District Judge. Argued: January 25, 2000 Decided and Filed: April 6, 2000 Before: NELSON, SUHRHEINRICH, and GILMAN, Circuit Judges. _________________ COUNSEL ARGUED: Armand I. Judah, Louisville, Kentucky, Michael L. Boylan, Louisville, Kentucky, Vincent F. Heuser, Jr., Louisville, Kentucky, for Appellants. Terry M. Cushing,

1 2 United States v. Nos. 98-6044/6048/6216 Nos. 98-6044/6048/6216 United States v. 15 Marks, et al. Marks, et al.

ASSISTANT UNITED STATES ATTORNEY, Louisville, proceedings, competency examinations, and other procedural Kentucky, for Appellee. ON BRIEF: Armand I. Judah, matters. See 18 U.S.C. § 3161(h). Louisville, Kentucky, Michael L. Boylan, Louisville, Kentucky, Vincent F. Heuser, Jr., Louisville, Kentucky, for Aguon raised the Speedy Trial Act issue on the morning of Appellants. Terry M. Cushing, David J. Hale, ASSISTANT trial and asked the court to dismiss the case against him, UNITED STATES ATTORNEYS, Louisville, Kentucky, for which the court denied. After admitting that he filed motions Appellee. and requests for his own benefit that would have tolled the Speedy Trial Act, Aguon simply asserts that “the delay in _________________ bringing him to trial was a violation of the act . . . .” (Aguon’s Brief at 18). Aguon does not specify which part of OPINION the delay violated the Speedy Trial Act. _________________ In this case, the district court made several Speedy Trial SUHRHEINRICH, Circuit Judge. Defendants Maurice findings: (1) after Brooks moved to continue the original Navarro Brooks, James Marks, and Robert L. Aguon appeal sentencing date, (2) after change in counsel for a codefendant, their jury convictions and sentences on multiple counts of (3) after the district court granted Defendants’ motions to bank robbery, armed bank robbery, and carrying a firearm withdraw their pleas, and (4) after the district court severed during a crime of violence. Defendants raise seven issues. Aguon and Myles’ trial from Brooks and Marks’ trial. The district court found that the case as to Aguon and Myles was I. BACKGROUND complex because of the withdrawal of the plea, the severance order, and the Government’s difficulty in compelling the Brooks committed nine armed bank robberies in and around testimony of Defendants who were already sentenced. Louisville, Kentucky, from July through December 1996. Nine people were charged with either participating directly in Defendants withdrew their guilty pleas on March 17, 1998, the robberies or with assisting the principals at different which became the day of their indictment for Speedy Trial times. Marks allegedly participated in seven of the robberies Act purposes. See 18 U.S.C. § 3161(i); United States v. but was convicted of only six. Aguon participated in the last Bond, 956 F.2d 628, 630 (6th Cir. 1992). Brooks and Marks two robberies. were tried on May 19, 1998, and Aguon’s trial was severed on the same day. Aguon’s trial started July 6, 1998. However, Brooks, Marks, Aguon, and Bernard Williams committed the district court first decided Aguon’s motion to suppress the the ninth robbery on December 20, 1996. As they were testimony of witnesses with plea agreements. leaving the bank, a Louisville police officer drove into the bank parking lot. The four robbers split into pairs. Brooks Most of the delay was caused by Defendants changing their and Williams fled in Williams’ car but were arrested after a pleas and filing pretrial motions, all of which Aguon appears high speed chase. Immediately after Brooks’ arrest, he asked to admit. As to the other delays, the district court made a police officer how much time he would get and commented appropriate findings to exclude the delays. Accordingly, the that the officer did a “good job.” district court did not err in denying Aguon’s motion to dismiss under the Speedy Trial Act grounds. Meanwhile, Marks and Aguon entered a nearby flower shop where Marks called his stepmother for a ride and bought her 14 United States v. Nos. 98-6044/6048/6216 Nos. 98-6044/6048/6216 United States v. 3 Marks, et al. Marks, et al.

To suppress evidence of a pretrial identification, a a stuffed animal. She picked them up at the florist and drove defendant must first show that the procedure was them to her home. Later, an employee of the florist also impermissibly suggestive. If a defendant shows this, then the found a bag of money on the premises. A few days after the district court must evaluate the totality of the circumstances robbery, the flower shop employees identified Marks and to determine whether the identification was reliable. See Aguon from standard photographic lineups. However, one Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994); see employee could not identify Aguon. also United States v. Causey, 834 F.2d 1277, 1286 (6th Cir. 1987). After leaving the Marks’ home, Marks and Aguon traveled to Oklahoma where they stayed with William Hayes. Hayes The district court reviewed the photographic array before later testified that Marks and Aguon said that they robbed a the trial and concluded that the photographic lineup was not bank. impermissibly suggestive. During the trial, the court required the Government to voir dire the witness from the flower shop Marks and Aguon were apprehended and arraigned on outside the presence of the jury to establish a foundation for March 19, 1997. Brooks was arraigned on March 26, 1997. her testimony about her pretrial identification of Aguon. The court scheduled trial for all three defendants for May 19, During the voir dire, the witness testified that she was shown 1997. Before trial, Defendants filed several motions. Aguon the photographic lineup, filled out an identification sheet, and moved for discovery, to suppress photographic identification, signed it, indicating her identification of Aguon. The witness to sever, and to enlarge time to file additional motions. essentially repeated this testimony for the jury. The Marks also moved for discovery and to sever both defendants investigating police officer testified that he used standard and offenses. The district court judge denied the motions to procedures. suppress, sever, and for discovery. Because Aguon failed to demonstrate that the procedure After Brooks’ original counsel withdrew on April 23, 1997, utilized by the Louisville Police Department was unduly Brooks' new attorney moved to continue the trial, which the suggestive, the testimony and evidence of the pretrial district court rescheduled to August 18, 1997. The district identification of Aguon was properly admitted. court also made Speedy Trial Act findings. On July 16, 1997, the case was reassigned to another district judge. Brooks then G. Speedy Trial Act. Aguon claims that the delay of over moved to sever, to suppress evidence, and to exclude two of two years in trying him violates the Speedy Trial Act. The his prior statements. Aguon also moved to exclude his Court reviews the district court’s interpretation of the Speedy statements when he was arrested and to suppress the Trial Act de novo and its factual findings for clear error. See photographic lineup identification. The district court denied United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir. 1994). all these motions. The Speedy Trial Act requires that a defendant’s trial begin On August 18, 1997, the morning of trial, Marks, Brooks, within seventy days of the filing date of the indictment or and Aguon agreed to plead guilty to all counts and to arraignment, whichever is later. See 18 U.S.C. § 3161(c)(1). cooperate completely and fully in the ongoing investigation of However, the seventy-day rule is subject to excludable the nine bank robberies. The plea agreements were for periods of delay for consideration of motions, pretrial specific sentences under Federal Rule of Criminal Procedure 11(e)(1)(C). If Defendants failed to cooperate fully, the 4 United States v. Nos. 98-6044/6048/6216 Nos. 98-6044/6048/6216 United States v. 13 Marks, et al. Marks, et al.

Government could move for relief from the agreement. The exchange for truthful testimony is not an illegal witness district court accepted the pleas and set sentencing for each gratuity. This court’s opinion in Ware unequivocally Defendant for November 7, 1997. forecloses defendants’ argument. On October 22, 1997, the Government moved to continue Ware was decided on December 3, 1998. Defendants the sentencing because Defendants had not completed their submitted their proof briefs in late January of 1999, nearly cooperation under the plea agreements. Marks objected to the two months later. They do not mention Ware. Instead, they continuance. Defendants Brooks and Marks responded that excoriate the government for its use of “bribed testimony” they were dissatisfied with their plea agreements and moved that was “illegally obtained”—as if Ware had never been to withdraw their guilty pleas. After the district court advised decided. During all of the time between the submissions of Brooks and Marks of their possible sentences, they their proof briefs in January of 1999 and oral argument in reconsidered and maintained their guilty pleas. The district January of 2000, counsel never acknowledged, as permitted court reset Defendants’ sentencing to February 2, 1998. by Rule 28(j) of the Federal Rules of Appellate Procedure, that Ware had been decided and that their argument was In early December, 1997, Codefendant James Myles, foreclosed as a result. previously a fugitive, was arrested. His trial was set for March 26, 1998. The Government again moved to continue At oral argument, counsel admitted that they knew about Defendants' sentencing because Marks and Brooks would Ware, but did not cite it in their briefs because they were “not both testify against Myles. The district court reset the sure where it would go in the appellate process.” Presumably sentencing of Brooks, Marks, and Aguon to April 3, 1998. this meant that they hoped (unrealistically, in our view) that either this court en banc or the Supreme Court of the United On February 27, 1998, Brooks, Marks, and Aguon jointly States would overturn Ware. Because Ware is a published moved pro se to set aside their plea agreements. They decision of this court directly contrary to Defendants’ claimed that the Government threatened their family and position, it should have been disclosed. See MODEL RULES OF friends with prosecution if Defendants did not accept the plea PROFESSIONAL CONDUCT Rule 3.3(a)(3) (“A lawyer shall not bargains and that their defense counsel constantly pressured knowingly fail to disclose to the tribunal legal authority in the them to accept the plea agreements. On March 17, 1998, the controlling jurisdiction known to the lawyer to be directly court heard Defendants’ motion and received testimony. The adverse to the position of the client and not disclosed by court rejected their claims of coercion, finding their proffered opposing counsel”); Rule 3.3(b) (providing that this duty testimony not credible. The court also denied Defendants’ continues “to the conclusion of the proceeding.”). motions for new counsel. At the hearing, the Government also stated that it would offer Defendants’ incriminating post- F. Photographic Identification. Aguon claims that the plea statements made while they were cooperating with the district court improperly admitted evidence that a witness Government. The district court allowed Defendants to identified him in a photographic array. This Court reviews a withdraw their pleas, made Speedy Trial Act findings, and set district court's factual findings in a motion to suppress trial for May 18, 1998. evidence for clear error and its conclusions of law de novo. See United States v. Williams, 962 F.2d 1218, 1221 (6th Cir. Before trial, Brooks, Marks, and Aguon renewed several 1992). motions and also moved to suppress their incriminating post- 12 United States v. Nos. 98-6044/6048/6216 Nos. 98-6044/6048/6216 United States v. 5 Marks, et al. Marks, et al.

Allen, 160 F.3d 1096, 1106 (6th Cir. 1998); United States v. plea statements. The Government moved to admit the Hudson, 53 F.3d 744, 747 (6th Cir.1995). statements, which the district court granted. The court concluded that the exclusionary provision for statements Brooks and Marks did not renew their motions to sever at made during plea discussions did not apply to post-plea the conclusion of the trial and, thereby, waived the issue for statements and that Defendants’ post-plea statements were appeal. However, even if the issue were preserved, the otherwise voluntary and, therefore, admissible. district court did not abuse its discretion because Brooks and Marks failed to show “compelling, specific, and actual The court also found joinder of Brooks, Marks, Aguon and prejudice.” See Sherlin, 67 F.3d at 1215. Defendants’ Myles proper under Federal Rule of Criminal Procedure 8. defenses were not mutually exclusive. Further, Brooks and The district court denied Brooks’ motion to suppress his post- Marks did not show that the jury was unable to “separate and arrest statement, “How much time am I going to get for this?” treat distinctively evidence relevant to each particular because Brooks did not show that the statement was defendant.” Medina, 992 F.2d at 587. In fact, the jury involuntary. The district court denied Aguon’s motion to acquitted Marks of his alleged role in the seventh robbery, as suppress a photographic identification of him by an employee charged in Counts 20, 21, and 22 of the indictment, while of the flower shop. Finally, the district court denied Marks’s, convicting Brooks of his role in the same robbery. Clearly, Brooks’s, and Aguon’s objections to the Government’s the jury did separate and distinguish the evidence between intention to introduce evidence of prior bad acts. Brooks and Marks. Accordingly, we affirm the district court’s denial of Brooks’ and Marks’ motions to sever. On May 19, 1998, the morning of trial, the court reconsidered severance and severed the trial of Aguon and E. Purchased Testimony. Defendants claim that the Myles from the trial of Brooks and Marks, with appropriate testimony of cooperating witnesses who received favorable Speedy Trial Act findings. Brooks and Marks were tried plea bargains in exchange for their promises of truthful beginning May 19, 1998, and convicted on May 29, 1998. testimony should have been excluded because the Marks was sentenced to 1875 months, and Brooks was Government’s inducement of this testimony violated the sentenced to 2722 months. The court later corrected their federal witness anti-gratuity statute, 18 U.S.C. § 201(c)(2). sentences under United States v. Sims, 975 F.2d 1225 (6th They rely on the Tenth Circuit’s decision in Singleton v. Cir. 1992), and reduced them by 480 months to 1395 months United States, 144 F.3d 1343 (10th Cir. 1998) (holding that and 2242 months respectively. prosecutors’ offers of favorable plea agreements in exchange for truthful testimony against accomplices or coconspirators On July 6, 1998, the morning of trial, Aguon moved to violate the statute and must be excluded), which was vacated suppress the testimony of witnesses who testified pursuant to by the en banc Tenth Circuit within two weeks of the date it plea agreements, which the court denied. Aguon also moved was filed and ultimately repudiated. See Singleton v. United to suppress his post-plea statements to the FBI claiming that States, 165 F.3d 1297 (10th Cir.) (en banc), cert. denied, 119 they were not voluntary. After taking testimony, the court S. Ct. 2371 (1999). In United States v. Ware, 161 F.3d 414 denied the motion. The jury convicted Aguon on all counts. (6th Cir. 1998), cert. denied, 119 S. Ct. 1348 (1999), this The district court sentenced Aguon to 438 months. court, like every other circuit to have considered the issue, rejected the Tenth Circuit panel’s analysis and concluded, among other things, that a prosecutor’s offer of leniency in 6 United States v. Nos. 98-6044/6048/6216 Nos. 98-6044/6048/6216 United States v. 11 Marks, et al. Marks, et al.

II. DISCUSSION and that the district court erred by not instructing the jury that they were permitted—but not required—to find that banks A. Suppression of Post-plea Incriminating Statements. located in Louisville are also located in the Western District Defendants contend that their post-plea statements should of Kentucky, it is difficult to imagine any error that would be have been excluded. This Court reviews factual findings more clearly harmless beyond a reasonable doubt. about a confession for clear error, but reviews the ultimate question of voluntariness de novo. See United States v. The Government also established through the testimony of Wrice, 954 F.2d 406, 410-11 (6th Cir. 1992). bank employees in both trials that the banks were federally insured. In Aguon’s trial, the Government also submitted Federal Rule of Criminal Procedure 11(e)(6) treats the certificates of insurance for the banks from the Federal inadmissibility of pleas, plea discussions, and related Deposit Insurance Corporation (“FDIC”). At trial, none of the statements: Defendants challenged the federally insured status of the banks. Except as otherwise provided in this paragraph, evidence of the following is not, in any civil or criminal This Court has held similar evidence as sufficient proof of proceeding, admissible against the defendant who made a bank being federally insured. See United States v. Wood, the plea or was a participant in the plea discussions: 780 F.2d 555, 556-57 (6th Cir. 1986) (holding that the unrebutted testimony of a bank security officer was (A) a plea of guilty which was later withdrawn; sufficient). See also United States v. Harris, 165 F.3d 1062, 1066 (6th Cir. 1999); United States v. Rowan, 518 F.2d 685, (B) a plea of nolo contendere; 692-93 (6th Cir. 1975). Considering this evidence in the light most favorable to the Government, we find that there was (C) any statement made in the course of any proceedings sufficient evidence for the jury to find beyond a reasonable under this rule regarding either of the foregoing pleas; or doubt that the robbed banks were federally insured. (D) any statement made in the course of plea discussions Accordingly, we reject this claim of error. with an attorney for the government which do not result D. Severance. Defendants Brooks and Marks claim that in a plea of guilty or which result in a plea of guilty later their joinder was prejudicial to their defenses. To prevail on withdrawn. a claim of misjoinder, a defendant must show compelling, Fed. R. Crim. P. 11(e)(6). specific, and actual prejudice from the misjoinder of defendants or offenses. See United States v. Sherlin, 67 F.3d After Defendants entered their plea agreements, FBI 1208, 1215 (6th Cir. 1995); United States v. Epley, 52 F.3d Special Agent Wight spoke to the Defendants with their 571, 578 (6th Cir. 1995); United States v. Medina, 992 F.2d defense counsel either present or informed of the interview. 573, 587 (6th Cir. 1993). This Court reviews denial of The court cautioned Defendants about the possible admission severance motions for abuse of discretion. See Zafiro v. of their post-plea statements when they moved to withdraw United States, 506 U.S. 534, 541 (1993); Sherlin, 67 F.3d at their pleas. 1215. A motion to sever must be renewed at the close of evidence to be preserved for appeal. See United States v. 10 United States v. Nos. 98-6044/6048/6216 Nos. 98-6044/6048/6216 United States v. 7 Marks, et al. Marks, et al.

508 U.S. at 137. The Sixth Circuit has upheld similar In this case, the district court found that (1) Defendants’ mandatory minimum sentences involving firearms. See, e.g., admissions, which the Government wanted to admit, were United States v. Duerson, 25 F.3d 376 (6th Cir. 1994) (157 made after Defendants’ plea agreements had been finalized months for robbery with short barrel shotgun). Accordingly, and entered, and (2) the plea negotiations did not extend we find that Brooks’ and Marks’ sentences did not violate the beyond their signing and filing. The court concluded that Eighth Amendment. Federal Rule of Criminal Procedure 11(e)(6) did not apply because the statements were not made during the plea C. Proof of Venue and Federal Insurance. Defendants discussions. claim that the Government did not prove the elements of venue and the federally insured status of the robbed banks. Defendants rely on United States v. Brooks, 536 F.2d 1137 Brooks and Marks moved for acquittal at the close of proofs (6th Cir. 1976), and United States v. Herman, 544 F.2d 791 arguing that the Government failed to prove the venue (5th Cir. 1977), for the proposition that statements made to element. Aguon, however, did not raise this issue at the close law enforcement officers pursuant to a plea agreement then in of the Government’s proof and thus failed to preserve it for effect are statements “made in the course of plea discussions.” appellate review. See United States v. English, 925 F.2d 154, Their reliance is misplaced. Congress amended Rule 11(e)(6) 156 (6th Cir. 1991). in 1979; it did so in part to abrogate decisions such as Brooks and Herman, because they manifested what Congress thought Brooks and Marks argue that even though the jury was was a too-broad view of the plea negotiation process. See presented with evidence that the robbed banks were located United States v. Sebetich, 776 F.2d 412, 421 (3d Cir. 1985) in Louisville, Jefferson County, Kentucky, no witness ever (“Prior to its amendment, the rule provided for the exclusion specifically testified that the banks were located in the of ‘statements made in connection with, and relevant to, any Western District of Kentucky. The district court took judicial of the foregoing pleas or offers.’ . . . Some courts construed notice that Louisville is part of the Western District of this rule liberally. . . . The legislative history of the 1979 Kentucky. Brooks and Marks argue that this was improper amendments manifests congressional disapproval of broad because Rule 201(g) of the Federal Rules of Evidence judicial constructions of the previous language, and the requires district courts in criminal cases to instruct the jury revision of the rule appears to have been designed specifically “that it may, but is not required to, accept as conclusive any to avoid the result in Herman and other cases reaching similar fact judicially noticed.” results.”). The Third Circuit in Sebetich specifically identified Brooks as one of the “other cases reaching similar We are not persuaded. For one thing, 28 U.S.C. § 97(b) results.” Id. Rule 11(e)(6)(D) now renders inadmissible only specifically provides that “[t]he Western District [of statements that were “made in the course of plea discussions Kentucky] comprises the counties of . . . Jefferson . . . [and] with an attorney for the government . . . .” FED. R. CRIM. P. Court for the Western District shall be held at . . . 11(e)(6)(D) (emphasis added). FBI agents cannot negotiate Louisville. . . .”. Thus, we seriously doubt whether plea agreements with defendants, so statements that Louisville’s presence in the Western District of Kentucky is defendants make to them are not “made in the course of plea a “fact” of which the court needed to take judicial notice. But discussions.” See Sebetich, 776 F.2d at 422 (rejecting the even if it were an issue of fact, it is certainly not one about arguments that self-incriminating statements made to a local which jurors could rationally disagree. Therefore, even police chief were protected by Rule 11(e)(6) because, among assuming for the sake of argument that it was an issue of fact, other reasons, the police chief was not an “attorney for the 8 United States v. Nos. 98-6044/6048/6216 Nos. 98-6044/6048/6216 United States v. 9 Marks, et al. Marks, et al.

government.”). In any event, statements made after a plea Aguon, his girlfriend, and Special Agent Wight. The post- agreement is finalized are not “made in the course of plea plea statements were made in the presence of or with the discussions.” See United States v. Watkins, 85 F.3d 498, 500 knowledge of Defendants’ attorneys. The district court did (10th Cir. 1996); United States v. Lloyd, 43 F.3d 1183, 1186 not believe Aguon’s testimony that he was coerced because of (8th Cir. 1994); United States v. Davis, 617 F.2d 677, 685 the alleged threatened prosecution. Accordingly, the court (D.C. Cir. 1979) (“Excluding testimony made after—and found that Aguon’s statements were not coerced. We find pursuant to—the agreement would not serve the purpose of that Aguon has not shown that the district court’s factual encouraging compromise”). findings were clearly erroneous. Accordingly, we affirm the ruling of the district court that admitted Defendants’ post-plea Defendants made their statements to the FBI agent after incriminating statements. they negotiated their plea agreements and pleaded guilty. Accordingly, Federal Rule of Criminal Procedure 11(e)(6) B. Length of Sentences. Defendants Brooks and Marks does not apply, and their statements were admissible. claim that the length of their sentences amounts to cruel and Nevertheless, even if Rule 11(e)(6) applied, admission of the unusual punishment. Brooks and Marks essentially challenge statements was harmless error. See Fed. R. Crim. P. 52(a); the proportionality of the mandatory sentencing provision. A Milton v. Wainwright, 407 U.S. 371, 377-78 (1972). There constitutional challenge to a sentence is a question of law and was testimony from other participants in the robberies that reviewed de novo. See United States v. Lloyd, 10 F.3d 1197, Defendants robbed the banks and also other circumstantial 1220 (6th Cir. 1993). evidence that would support Defendants’ conviction. Defendants did not show that, in the absence of their Title 18 U.S.C. § 924(c) requires enhanced consecutive confessions, the evidence was insufficient. sentencing for its violation. See Deal v. United States, 508 U.S. 129, 132-133 (1993). The Supreme Court has Aguon also claims he entered the plea agreement and gave determined that strict proportionality between a crime and its a confession because he was coerced. Generally, voluntary punishment is not required. See Harmelin v. United States, statements are admissible. See Miranda v. Arizona, 384 U.S. 501 U.S. 957, 959-960 (1991) (upholding Michigan's penalty 436, 478 (1966). The test for voluntariness is whether the of life imprisonment without parole for possession of more confession was the product of free and rational choice. See than 650 grams of cocaine). The Sixth Circuit has adopted United States v. Murphy, 763 F.2d 202, 205 (6th Cir.1985). the “narrow proportionality principle” of Harmelin. See If a defendant was subject to objectively coercive activity that United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991). overcame his free will, a defendant's statement cannot be used Consequently, only an extreme disparity between crime and against him. See United States v. Rigsby, 943 F.2d 631, 635 sentence offends the Eighth Amendment. See id. (6th Cir. 1991). Determining the voluntariness of a statement requires an analysis of the totality of all the circumstances. In this case, no disparity exists between the multiple crimes See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); and the sentence in the cases of Brooks and Marks. Brooks McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.1988); 18 committed nine armed bank robberies within six months. U.S.C. § 3501(b). Marks participated in six of the robberies. In a case involving similar facts, the Supreme Court held that a 105-year sentence In the present case, the district court held a suppression following conviction of six armed robberies with attendant hearing on the morning of trial and received testimony from convictions under 18 U.S.C. § 924(c) is not unjust. See Deal,