United States v. Smith

27 F. App'x 577
Court of Appeals for the Sixth Circuit·Decided December 18, 2001·No. No. 00-5640, 00-5685·Published·Cited by 7 cases

Opinion

COLLIER, District Judge.

Appellants Robert Smith (“Smith”) and Christopher Hicks (“Hicks”) appeal their convictions and sentences for attempted bank robbery, 18 U.S.C. § 2113(a), (d); use of a dangerous weapon during a crime of violence, 18 U.S.C. § 924(c)(1)(A)®; and possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). Smith and, by adoption, Hicks claim their convictions rest on insufficient evidence. Hicks raises five additional claims of error by the district court — constructive amendment of the indictment, improper admission of expert testimony, improper admission of photographic evidence, improper jury instruction on flight, and failure to grant a mistrial or severance. With the exception of the last one, Hicks’s claims of error apply equally to Smith and will be construed as adopted by him. Because we find no merit in Smith’s and Hicks’s arguments, we AFFIRM.

I.

On November 1, 1999, Robert Smith, Christopher Hicks, and Terrence Booker traveled together from Toledo, Ohio, to Winchester, Kentucky. They were accompanied by Smith’s and Hicks’s girlfriends. After they arrived in Winchester the next day, the group checked into a motel. That evening, Smith, Hicks, and Booker went to a local K-Mart department store and purchased camouflage overalls, gloves, and ski masks. Smith also bought a black sweatshirt. According to Booker, the men had agreed to rob a bank and, at some point on November 3, 1999, selected the Traditional [579]*579Bank in Winchester as their target. A witness saw the men parked near the bank that evening.

On the morning of November 4, 1999, Smith and Hicks told their girlfriends to prepare to leave and then loaded the car. According to Booker, the three men removed three firearms, including a .357 magnum, from their belongings and drove to the bank. Hicks donned the camouflage overalls on the way; Smith was wearing the black sweatshirt. Booker and Hicks also had walkie-talkies. Each man was armed.

At the bank, Booker remained in the car while Smith and Hicks, armed and wearing ski masks and gloves, approached the entrance. At approximately 7:25 a.m., Wanda Frye, a bank employee, arrived at the bank. Smith and Hicks forced her to let them in. Once inside, one of them said to 0 Booker over the walkie-talkie, ‘We’re in.” The men then ordered Frye to open the vault, threatening to kill her if the police arrived. Despite the threat, Frye activated a silent alarm. When Judy Milton, another bank employee, entered the bank shortly thereafter, the men ordered her to assist Frye. They threatened to kill her if she and Frye failed to open the vault.

In the meantime, a police car arrived. After alerting Smith and Hicks to the presence of the police, Booker abandoned the ear and ran to a nearby apartment complex where he was later arrested. He left a .38 caliber gun in the car and threw his walkie-talkie in a nearby dumpster. Smith and Hicks ran out of the bank past the bank’s drive-through service window. The bank’s video surveillance system captured the men removing their masks as they passed the service window.

Smith and Hicks ran past a fence toward a nearby car wash and then a gas station. A witness saw Smith discard his sweatshirt near the car wash. At the gas station, the men asked the manager to call them a cab, which he did. A cab came and took the men to their motel. There they informed the women Booker and the car were gone. Smith called the owner of the car, who was in Toledo, and instructed her to report the car as stolen. Hicks called another cab. When the second cab arrived, Smith, Hicks, and the women got in and asked to be taken to the bus station. The driver, who was a police officer, promptly arrested the men.

The police recovered a pillow case near the vault; a ski mask outside the bank; a black sweatshirt near the carwash; and a second ski mask, a washcloth, a walkie-talkie, and a .357 magnum near the fence. The pillow case and washcloth matched those missing from Booker’s motel room. Booker identified the .357 magnum as one of the guns the men had at the motel prior to the robbery. The police also found a bag from K-mart and merchandise tags for the black sweatshirt, gloves, and ski masks in Booker’s room. The police recovered Booker’s gun, a white ski mask, a ball cap, and photographs of Smith and Booker in the car abandoned near the bank.

Hicks, Smith, and Booker were indicted on November 18, 1999. The government successfully moved to sever Booker’s trial. Booker was convicted of attempted bank robbery and use of a dangerous weapon during a crime of violence. Booker testified at Hicks’s and Smith’s trial about the details of the robbery. After Smith’s attorney queried Booker about his prior conviction for the same bank robbery, Hicks’s attorney asked some follow-up questions and then unsuccessfully moved for a mistrial or severance. Both the girlfriends identified Appellants in still photographs reproduced from the bank’s surveillance videotape. Witnesses identified the recovered black sweatshirt as Smith’s. A police laboratory technician testified hair samples taken from Appellants were “similar in [580]*580color and microscopic characteristics” to hairs found in the ski masks recovered near the bank. The jury returned a guilty verdict as to all counts. Hicks’s and Smith’s motions for judgment of acquittal and for a new trial were both denied. The judgment was issued on April 28, 2000 and entered on May 2, 2000.

II.

A. Sufficiency of the Evidence

Appellants first challenge the sufficiency of the evidence supporting their convictions of bank robbery, use of a dangerous weapon during a crime of violence, and possession of a firearm by a felon.1 Appellants claim the government offered insufficient evidence to support their convictions because it offered no eyewitnesses. Hence, Appellants contend the district court erred in denying their motion for judgment of acquittal.

In reviewing challenges regarding the sufficiency of the evidence presented to the jury, we are limited to ascertaining whether, viewing the evidence in the light most favorable to the government, United States v. Carmichael, 232 F.3d 510, 519 (6th Cir.2000), “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). The uncorroborated testimony of an accomplice may support conviction. United States v. Frost, 914 F.2d 756, 762 (6th Cir.1990). So may circumstantial evidence, if “the judgment is ... supported by substantial and competent evidence upon the record as a whole.” United States v. Ellzey, 874 F.2d 324, 328 (6th Cir.1989).

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United States v. Smith, 27 F. App'x 577 (6th Cir. 2001).

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