United States v. McNeil

106 F. App'x 294
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 1, 2004
DocketNos. 02-1096, 02-1757, 03-1109
StatusPublished
Cited by4 cases

This text of 106 F. App'x 294 (United States v. McNeil) 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. McNeil, 106 F. App'x 294 (6th Cir. 2004).

Opinion

RYAN, Circuit Judge.

The defendants, Daniel Tyrone McNeil, John D. Hatcher, and Jarrett Lamont Henderson, appeal their convictions and sentences for bank robbery, or aiding and abetting the same, in violation of 18 U.S.C. §§ 2 and 2113(a); and for brandishing firearms during and in relation to a crime of violence, or aiding and abetting the same, in violation of 18 U.S.C. §§ 2, 924(c)(l)(A)(i) and (ii).

McNeil and Hatcher appeal their convictions and sentences for possessing a destructive device during and in relation to a crime of violence, or aiding and abetting the same in violation of 18 U.S.C. §§ 2, 924(c)(1)(A), and 924(c)(l)(B)(ii). In this appeal, the defendants raise several issues, including alleged trial errors, the sufficiency of the evidence, and alleged errors related to sentencing. Having considered each assignment of error carefully, we conclude that the only claim with any merit is that the district court committed plain error by convicting and sentencing McNeil and Hatcher for multiple violations of § 924(c) when only a single predicate offense of bank robbery was alleged in the indictment. For the following reasons, we AFFIRM the defendants’ convictions. However, we VACATE McNeil’s and Hatcher’s sentences and REMAND then-cases for resentencing. Henderson’s sentence is AFFIRMED.

I.

On April 19, 2001, three armed men, who were later identified as McNeil, Hatcher, and an accomplice named Frederick McCloud, entered the First Federal of Michigan bank branch in Sterling Heights, Michigan. A fourth man, later identified as Henderson, waited outside the bank in the driver’s seat of a car. McNeil and Hatcher subdued the bank’s employees while McCloud ordered bank teller Sherry French to hand over the bank’s money and to put it into a black duffel bag. Meanwhile, Hatcher placed a black cylindrical device on the floor in front of branch manager John Johnson and assistant manager Danielle Ford. He announced that the device was a bomb, and that if anyone moved, it would explode and kill them. Before the three men left the bank, they herded the employees into a vault. Hatcher told the employees: “I’m going to set the bomb, ... I’m going to close the door, and if you guys come out the bomb will go off and kill you.” The three men left the bank with over $43,000.

McNeil, Hatcher, and McCloud jumped into the waiting car with Henderson and sped off with police in pursuit. After a short chase, the car crashed into a ditch and the four men continued to flee by foot, discarding clothes, guns, and money as they ran. Within moments, police appre[298]*298hended McNeil, Hatcher, and Henderson. McCloud was captured later. At the scene of the chase, police recovered a black duffel bag filled with U.S. currency, three handguns, and various items of clothing, including a mask, a hat, bandanas, and gloves.

Back at the bank, Sergeant Steven Morrison, an explosives expert from the U.S. Army Bomb Squad, disarmed the pipe bomb left there by Hatcher. In order to disarm the bomb, Morrison shot it with a steel slug, knocking off one of the end caps and igniting the contents of the pipe. Based on the contents discharged from the bomb and the damage it caused, Morrison later testified that the bomb was, in fact, an explosive device and that it could have caused serious injury if it had exploded.

A grand jury returned a five-count indictment against the defendants. McCloud pleaded guilty to all four charges against him. McNeil, Hatcher, and Henderson were convicted of bank robbery or aiding and abetting the same, and brandishing a firearm during a crime of violence or aiding and abetting the same. McNeil and Hatcher were also convicted of possessing a destructive device in furtherance of a crime of violence, or aiding and abetting the same. Finally, Hatcher was convicted of being a felon in possession of a firearm.

McNeil and Hatcher were each sentenced to five years for the bank robbery, seven years for brandishing a firearm, and 30 years for possessing a destructive device. Henderson was sentenced to 6-1/2 years for the bank robbery and seven years for brandishing a firearm. The defendants appealed both their convictions and sentences.

II.

The defendants’ first assignment of error is that the district court empaneled a juror who had admitted a bias against them. The alleged admission occurred during voir dire, when Hatcher’s counsel engaged in a dialogue with the jury pool about potential bias.

The Sixth Amendment right to trial by jury “guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). If it is revealed during voir dire that a venireman is biased against the defendant, the venireman must be dismissed. Hughes v. United States, 258 F.3d 453, 459 (6th Cir.2001). Bias can be ascertained either from a juror’s express admission or, as is more often the case, from circumstantial evidence. Id. A district court’s determination that a venireman is not biased is entitled to deference because the district court is uniquely situated to judge the venireman’s demeanor and credibility. Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

Because the defendants did not object at trial, we review for plain error only. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Plain error exists if (1) there was an error, (2) the error was plain, and (3) the error affected substantial rights. Id. at 732-34. If these three factors are present, an appellate court may notice a forfeited error, but only “if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at 736 (internal quotation marks and citation omitted).

Having reviewed the transcript and the venireman’s statement in context, we are satisfied that there was no admission of bias at voir dire. Nor is there any other evidence, direct or circumstantial, that any member of the jury was biased against the defendants. Accordingly, the district [299]*299court did not commit plain error by empaneling the jury.

III.

Next, the defendants claim that various statements made by the prosecutor during his closing arguments were improper. This court applies a two-step approach in reviewing prosecutorial remarks. United States v. Carroll, 26 F.3d 1380, 1385 (6th Cir.1994).

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