United States v. Thomas

105 F. App'x 773
Court of Appeals for the Sixth Circuit·Decided July 29, 2004·No. No. 02-2391·Published·Cited by 1 cases

Opinion

ANN ALDRICH, District Judge.

In June 2002, a jury in the Eastern District of Michigan convicted defendant-appellant Jack Thomas of two counts of armed bank robbery, in violation of 18 U.S.C. § 2113(a), and one count of possessing a firearm in furtherance of a robbery, in violation of 18 U.S.C. § 924(c). The district court sentenced Thomas to 135 months imprisonment for each robbery, to run concurrently, plus 84 months on the firearm conviction, to run consecutively to the robbery sentences. Thomas contends: (1) the district court erred in excluding a potentially exculpatory “excited utterance” he made to the arresting officer; (2) it abused its discretion by failing to instruct the jury regarding eyewitness identification; (3) the prosecution’s closing argument was improper and denied him a fair trial; (4) the district court abused its discretion in denying him an opportunity to cross-examine a witness regarding a shootout the witness had with the police; and (5) the evidence was insufficient to support the convictions. Thomas also contends that the district court erred in enhancing his sentence for obstruction of justice. For the reasons that follow, we affirm.

L BACKGROUND

A. Evidence that Thomas Committed Armed Robbery of the Dearborn Bank

The superseding indictment charged that Thomas committed armed robbery of the Rouge Employees Credit Union in Dearborn, Michigan in August 2000. The drawer of teller Yolanda Chandler reflected a shortage of $22,700 for the day of the robbery. See JA 205-209. Bank teller Yolanda Chandler was on the job on August 3 when two men entered the bank shortly after 9:30 a.m. One man stood in the foyer, near the door, waving a handgun around; he had “tar or something all over his face” and a green outfit like that worn by the nearby Rouge Steel Factory workers.

The other man, who the tellers said was “thinner built” and somewhat shorter than the first, approached Chandler’s window. This man reached into his overalls, pulled out a bag and slid it under the window, and told Chandler, “not to do anything, and don’t push any buttons. Put the money in the bags.” Meanwhile, the man in the foyer yelled “get down motherf ... [776]*776ers,” while holding the gun with both hands and pointing it in the direction of the tellers. That caused Chandler to “freeze” and focus on the “guy standing in front of’ her window. Chandler placed about $20,000 in the bag and gave it to the thinner man. See JA 168-171. This second man was later identified as Reginald Lenton by his own confession and by the testimony of accomplice Donald Martin.

After taking cash from Chandler, Len-ton moved over to the next window, manned by head teller Ronnie Holly, and again demanded money, whereupon Holly set off the alarm. Holly confirmed there were two robbers, one “kind of crouched down at a [teller] window” and another at the door who waved a gun “all around” and told “everyone to get down.” JA 183. Holly remembered that the big man at the door was wearing a dust mask and a hat, but he “didn’t really get a good look at” him and did not see his face; he did testify that the photos introduced by the government appeared to depict the gunman he saw. Holly also testified that the gun introduced by the government was similar to the type held by the big man at the door. See JA 183-201.

A third teller, Latice Jones, saw a “black African-American, tall built,” at the door who was holding a gun and wearing “like a dirty rouge steel work getup with a white tee-shirt, gas mask on his face ... we really couldn’t see his face.” See JA 220-23. Teller Yolanda Chandler testified that she got a “glimpse” of the man standing by the door, whom she characterized as “a big guy,” but she could not really describe his facial features. Chandler could not recall what, if anything, this man had covering his face. She described the gun that he pointed at an adjacent teller merely as “big and black.” See JA 172-73. Head teller Ronnie Holly also recalled that the man at the door was “about like 6'3", 6'4". Kind of a big man.” See JA 183-201. Likewise, teller Latice Jones described the gunman at the door as “tall built.” Jones characterized this man as similarly built to Thomas in height and weight. See JA 224. Consistent with other witnesses’ testimony, bank employee Sharron Williams described the gunman as a “very large gentleman, I’d say about 6'4".” See JA 233-34.

As for the shorter or slighter-built man who approached her window and demanded money, Chandler recalled he seemed to have a gas mask over his face. Chandler estimated his height and opined that Thomas was similarly built, but she was unable to identify Thomas or anyone else in the courtroom as having robbed the bank. See JA 173-78. After completing the robbery, the two men walked out the door and across the parking lot towards an alley. See JA 188-189 (Holly).

B. Evidence that Thomas Committed Armed Robbery of Harper Woods Bank

About two months later, Thomas participated in Reginald Lenton’s armed robbery of the Bank One branch in Harper Woods, Michigan on October 13, 2000. Bank teller Patrice Murphy testified that a man walked up to her window and tendered a handwritten note reading, “This is a stickup. I got a gun / fill this bag. No dye packs or will danger a customer shoot it [sic].” Murphy described him as a black man in his “mid 30’s, maybe early 40’s,” with a dark complexion and standing 5'9" to 6'0" tall. Apparently fearing that Murphy was about to activate the alarm, the man said to her, “Don’t even try it. Don’t try it.” Murphy gave him $1600, including “bait money.” The bait money bore her initials and had been photocopied “to catch crooks whenever we get robbed.” Murphy identified the cash introduced by the gov[777]*777ernment as the bait money. See JA 239-247.

C. Thomas’s Flight and Arrest Immediately After Second Bank Robbery

At 12:08 p.m. that same day, Harper Woods police officer James Ramberger was on duty and in uniform in his patrol car when he received a radio report that a bank robbery had just occurred at Kelly and Woodcrest, which he knew to be Bank One. As Ramberger approached that location he saw “a gray Pontiac turn off at Woodcrest coming south toward me.” Ramberger ended up facing the Pontiac at a four-way intersection and could see the driver was “a large, black male.” JA 259-61. When the Pontiac kept sitting still, Ramberger motioned for it to proceed. When the driver did so, Ramberger made a U-turn and pulled behind the Pontiac to obtain its license plate number. As soon as he did so, however, the Pontiac began accelerating, running stop signs and red lights and reaching speeds of 80-95 mph on residential streets limited to 25 mph. Fellow Officer Robert Vitale joined the pursuit in his car until the Pontiac stopped in Detroit. See JA 262-65, 294-95.

When Ramberger pulled up to the Pontiac, he saw Thomas exiting the driver’s side, saw the passenger’s door was also open, and saw a second man running down the alley. See JA 265. Ramberger drew his gun and ordered the driver “three or four times” to put his hands up. Instead of complying, the driver stood outside the Pontiac with the door open, keeping one arm inside the car where Ramberger could not see it.

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United States v. Thomas, 105 F. App'x 773 (6th Cir. 2004).

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