United States v. Wade

• Court: Court of Appeals for the First Circuit
• Decided: February 1, 1995
• Docket: 94-1470
• Status: Published

Opinion

USCA1 Opinion

February 1, 1995      [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

          No. 94-1470

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                    GARRY T. WADE,

                                Defendant - Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                            Cyr and Stahl, Circuit Judges,
                                           ______________

                           and DiClerico,* District Judge.
                                           ______________

                                _____________________

               Peter B. Krupp, Federal Defender Office, for appellant.
               ______________
               Jeanne  M. Kempthorne, Asistant United States Attorney, with
               _____________________
          whom  Donald  K. Stern,  United  States Attorney,  and  Sheila W.
                ________________                                  _________
          Sawyer,  Assistant  United States  Attorney,  were  on brief  for
          ______
          appellee.

____________________

____________________

____________________

          *  Of the District of New Hampshire, sitting by designation.  



DiClerico,  District Judge.   The  defendant, Garry  T.
                                ______________

          Wade, appeals  his conviction  and sentence  for bank  robbery in

          violation of 18 U.S.C.A.   2113(a).  He asserts that the evidence

          introduced at trial  was not sufficient  to support a  conviction

          under  the statute.  He further asserts that the district court's

          refusal  to depart downward was based on an erroneous belief that

          the court lacked the authority under the guidelines to do so.  We

          affirm  the  conviction.   We  lack  jurisdiction  to review  the

          sentence.

I
                                          I

                                      BACKGROUND
                                      BACKGROUND

                    On  September 11,  1992, the  Boston Five  Cent Savings

          Bank, 569  Washington Street,  Boston, Massachusetts, was  robbed

          shortly after 9:00 a.m.  The bank was federally insured.  A male,

          acting alone, presented a teller with a handwritten robbery note.

          According  to a bank audit, the teller gave the robber $1,185.10.

          The robber  fled from the  bank on foot.   The bank's  video sur-

          veillance  system recorded the robbery and it was also  witnessed

          by others in the bank.

                    On  May 23,  1993,  the defendant  was indicted  on one

          count of bank robbery under 18 U.S.C.A.   2113(a) by a Grand Jury

          sitting in  Boston,  Massachusetts.   On  January 28,  1994,  the

          defendant was convicted by a jury in United States District Court

          for the District of Massachusetts.  On April  20, 1994, the trial

          judge sentenced the defendant  to prison for 210 months  with two



years  supervised release  and  a special  assessment of  $50.00.

          This appeal followed.

II
                                          II

                             SUFFICIENCY OF THE EVIDENCE
                             SUFFICIENCY OF THE EVIDENCE

                    The court's standard of appellate review for challenges

          based on the sufficiency of the evidence is settled.  "[O]ur task

          is to review  the record  to determine whether  the evidence  and

          reasonable  inferences therefrom,  taken as  a whole  and in  the

          light most  favorable to the prosecution, would  allow a rational

          jury to determine  beyond a reasonable doubt  that the defendants

          were guilty as charged."   United States v. DeMasi,  No. 92-2062,
                                     _____________    ______

          slip op. at 16 (1st Cir. Oct. 26, 1994) (quoting United States v.
                                                           _____________

          Mena-Robles, 4 F.3d 1026, 1031 (1st Cir. 1993), cert. denied, 114
          ___________                                     _____ ______

          S.  Ct. 1550 (1994), modified  on other grounds  sub nom., United
                               ____________________________________  ______

          States v. Piper, No. 94-1197 slip  op. (1st Cir. Sept. 8, 1994)).
          ______    _____

          We  credit both  direct and  circumstantial  evidence but  do not

          weigh the  relative weight  of the  evidence or  make credibility

          determinations.  United States v. Loder, 23 F.3d 586, 589-90 (1st
                           _____________    _____

          Cir.  1994);  Mena-Robles,  4  F.3d at  1031;  United  States  v.
                        ___________                      ______________

          Echeverri, 982 F.2d  675, 677 (1st Cir. 1993).  Rather, "the jury
          _________

          is  at liberty  to select  freely among  a variety  of reasonable

          alternative  constructions of the  evidence."  Loder,  23 F.3d at
                                                         _____

          590  (citing United States v. Smith, 680  F.2d 255, 259 (1st Cir.
                       _____________    _____

          1982),  cert. denied, 459  U.S. 1110  (1983)).   As a  result, we
                  _____ ______

          affirm convictions so long as the jury verdict finds support in a

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"plausible rendition of the record," United States v. Ortiz,  966
                                               _____________    _____

          F.2d 707,  711 (1st  Cir. 1992),  cert. denied,  113 S. Ct.  1005
                                            _____ ______

          (1993)),  even  if  a verdict  "other  than  one  of guilt  could

          reasonably  have  been reached."   DeMasi,  slip  op. at  16; see
                                             ______                     ___

          United  States v.  Vavlitis,  9 F.3d  206,  212 (1st  Cir.  1993)
          ______________     ________

          ("government need  not disprove  every  reasonable hypothesis  of

          innocence"  where  record  supports verdict  beyond  a reasonable

          doubt).

                    To obtain a conviction for bank robbery, the government

          must  prove  beyond  a  reasonable  doubt  the  identity  of  the

          defendant as the robber.  See 18 U.S.C.A.   2113(a) ("whoever, by
                                    ___

          force and  violence, or by  intimidation, takes,  or attempts  to

          take, from the person or presence of another any property").  The

          defendant complains  that the circumstantial evidence placing him

          at the scene of  the crime, namely the forensic  evidence related

          to  his fingerprints and handwriting,  is "too weak  to support a

          reasonable  inference of  guilt."1   The  defendant argues  that,

          under a  line of  "fingerprints only"  cases, identity  cannot be

          established solely by forensic evidence found on a movable object

          at  the   crime  scene   absent  sufficient  evidence   that  the

          fingerprints were placed on the object at the time of the crime.

                    We  have  not  yet addressed  the  "fingerprints  only"

          issue.   The defendant is correct that other circuits have, under

          various circumstances, struck  down convictions  based solely  on

                              
          ____________________

          1   For purposes of  this appeal, the  defendant does not dispute
          that he wrote the demand note used in the bank robbery.

                                         -4-



fingerprints obtained from  movable items.   See, e.g., Mikes  v.
                                                       ___  ____  _____

          Borg, 947 F.2d 353, 356-57, 360-61 (9th Cir. 1991), cert. denied,
          ____                                                _____ ______

          112 S. Ct. 3055 (1992); United States v. Corso, 439 F.2d 956, 957
                                  _____________    _____

          (4th  Cir. 1971); United States v. Collon, 426 F.2d 939, 942 (6th
                            _____________    ______

          Cir.  1970).  Conversly,  convictions are upheld  on appeal where

          the  trial  record includes  incriminating  evidence beyond  that

          found on the movable object.   See, e.g., United States  v. Luna,
                                         ___  ____  _____________     ____

          21 F.3d. 874, 883-84 (9th Cir. 1994) (bank robbery conviction not

          based  only  on fingerprints  where  bank  teller testified  that

          robber, like  defendant, had tattoo on neck);  McMillan v. G mez,
                                                         ________    _____

          19 F.3d  465, 469 (9th Cir.), cert. denied, 115 S. Ct. 170 (1994)
                                        _____ ______

          (conviction  not  based  only  on  fingerprints  where   evidence

          indicated that defendant's fingerprints "could have only been put

          on [movable object] at a time very close  to the murder"); United
                                                                     ______

          States v. Field, 875 F.2d 130, 136-37 (7th Cir. 1989) (conviction
          ______    _____

          not  based  only  on  fingerprints  where there  was  "plenty  of

          evidence from which  the jury could infer" that  defendant placed

          fingerprints on money orders during unlawful alteration).

                    We  review  the record  to  determine if  the  jury was

          presented with sufficient evidence to convict the defendant under

          the statute.

                    The government introduced  the handwritten demand  note

          used in the robbery with the following appearing on it:

                      Good morning I will be empting [sic] your
                      drawer  this  morning  no  die  no tricks
                      [sic]  I have  a bomb  and gun  that will
                      self destruct immediately  so dont  [sic]
                      do anything stupid thank you!!!

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An  FBI   fingerprint  specialist   with  nearly   thirty  years'

          experience  testified   that,  based  on  a   comparison  of  the

          defendant's fingerprints and those present on the demand note, he

          was  certain the defendant had  handled the demand  note.  An FBI

          forensic  document examiner  with twenty-seven  years' experience

          testified that, based on  a comparison of the handwriting  on the

          demand  note and a written exemplar provided by the defendant, he

          was reasonably  certain that  the same individual  wrote on  both

          sheets of paper.

                    The incriminating nature of the demand note and related

          testimony by two  FBI experts is obvious.   However, we need  not

          determine whether evidence related to this "movable" object alone

          is sufficient to  identify the defendant  as the government  also

          adduced other  evidence.   Isabel  Araujo,  the bank  teller  who

          received the demand note and handed over the cash, testified that

          the robber was  a black  male dressed in  a multi-colored  black,

          white and red  jacket with  a baseball hat.   She  "guesstimated"

          that  he was  approximately six  feet tall,  explaining that  she

          determined the  measurement by comparison to her  father whom she

          knew to be  approximately that  height.  Araujo  did concede,  on

          both direct and cross-examination, that immediately following the

          robbery  she had reported to police officials that the robber was

          somewhat  shorter (between 5'7"  and 5'9").   She  also testified

          that she did not remember if the robber had facial hair.2
                              
          ____________________

          2   A prosecution witness,  State Police Sergeant  Michael Tobin,
          testified  on cross-examination  that  Araujo told  him that  the
          robber was clean-shaven.

                                         -6-



The government also  introduced a videotape,  retrieved

          from the bank's security cameras,  which depicted the interior of

          the bank during  the robbery  and showed Araujo  and the  robber.

          The   defense  introduced   a  still   photograph  electronically

          reproduced from the videotape, again depicting the  robber at the

          scene of the crime.3

                    The  defendant was  present  in  the  courtroom  during

          trial.  The jury  had the opportunity to compare  the testimonial

          and   photo-graphic    evidence   of   the    robber's   physical

          characteristics with the outward appearance of the defendant.  As

          part of the deliberative process, the jury was entitled to assess

          witness credibility  and to weigh  the evidence  adduced by  both

          sides.4

                    Based on our review  of the entire record in  the light

          most favorable  to the prosecution, we conclude that the evidence

          introduced at trial would allow a rational jury to find, beyond a

          reasonable  doubt,  that the  defendant  was  the  robber and  to

          convict the defendant for bank robbery.

III
                                         III

                        REFUSAL TO DEPART UNDER THE GUIDELINES
                        REFUSAL TO DEPART UNDER THE GUIDELINES

____________________

          3  We have reviewed  both the videotape and the  still photograph
          and acknowledge that neither  presents a particularly sharp image
          of the robber.

          4  At  trial, the  defendant introduced evidence  to support  his
          contention  that  he differed  in  physical  appearance from  the
          robber in terms of height and facial hair.

                                         -7-



The  defendant next  requests a de  novo review  of his
                                                    __  ____

          sentence  on  the grounds  that  the  district court  erroneously

          concluded it  lacked the authority  to depart downward  under the

          guidelines.5   The government responds that  the district court's

          refusal to  depart was discretionary and  unreviewable on appeal.

          We agree.

                    By statute, a defendant may appeal  a sentence based on

          an  incorrect  application  of  the sentencing  guidelines.    18

          U.S.C.A.   3742(a)(2)  (West Supp. 1994).   Refusal by  the trial

          judge to  depart is not considered an  "incorrect application" of

          the guidelines.   United States v.  Tucker, 892  F.2d 8, 10  (1st
                            _____________     ______

          Cir. 1989).  "It  is by now  axiomatic that a criminal  defendant

          cannot  ground an  appeal on  a sentencing  court's discretionary

          decision  not to  depart below  the guideline  sentencing range."

          United  States v.  Pierro,  32 F.3d  611,  619 (1st  Cir.  1994),
          ______________     ______

          petition for cert. filed, (Oct. 25,  1994) (quoting United States
          ________________________                            _____________

          v. Tardiff, 969 F.2d 1283, 1290 (1st Cir. 1992); United States v.
             _______                                       _____________

          Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, 113 S. Ct 224
          ______                                _____ ______

          (1992);  United States  v. Hilton,  946 F.2d  955, 957  (1st Cir.
                   _____________     ______

          1991); United States v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991)).
                 _____________    ______

          There is an exception to this general rule:

                      [A]ppellate jurisdiction may attach if it
                      appears  that  the   failure  to   depart
                      stemmed   from  the   sentencing  court's
                      mistaken  impression  that it  lacked the
                              
          ____________________

          5    The  defendant  identifies  three grounds  under  which  the
          district court could have  departed downward.  Given the  lack of
          appellate jurisdiction,  we need  not address the  merits of  the
          specific grounds.

                                         -8-



legal  authority  to  deviate   from  the
                      guideline range or,  relatedly, from  the
                      court's  misapprehension   of  the  rules
                      governing departures.

          Id. (quoting United States v. Gifford, 17 F.3d 462, 473 (1st Cir.
          ___          _____________    _______

          1994).

                    The defendant relies heavily on the following statement

          made by the trial judge at the sentencing:

                    COURT:  All right.  I am going to say for the
                            record I don't believe that  all that
                            is in the record would warrant me  in
                            departing.   I  don't think  there is
                            any basis  for a departure.   If I am
                            wrong, that is an appealable issue.

          The defendant  argues that,  by "expressly allowing  for appeal,"

          the district  court communicated its doubts  concerning the legal

          basis to depart.   However,  there can be  little doubt that  the

          court made  a fact-based,  discretionary decision not  to depart.

          The  government,  apparently  concerned that  the  trial  judge's

          initial remarks  could be  characterized as ambiguous  on appeal,

          elicited a clarification:

                    AUSA:   Just  for clarity  of the  record, is
                            the Court's finding that it  does not
                            find  the  facts  in the  Presentence
                            Report   sufficiently    unusual   to
                            support a departure?

                    COURT:  In other words, on  the basis of  the
                            fact [sic] that have been  brought to
                            my attention, I do not feel that they
                            warrant a departure.

                    The Final Judgment confirms the discretionary nature of

          the  trial judge's refusal to depart downward.  The "Statement of

          Reasons" section includes the following text:

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The sentence  is within  the guideline
                    _____
                    range . . .  and the sentence is imposed  for
                    the following reasons(s):

                    THE   COURT   DOES    NOT   FIND   THAT   THE
                    CIRCUMSTANCES AND FACTS AS  SET FORTH IN  THE
                    PRESENTENCE REPORT AND DEFENDANT'S SENTENCING
                    SUBMISSIONS WARRANT DEPARTURE.

                    The district court, cognizant of its legal authority to

          depart, examined the  facts of  the defendant's case  and made  a

          discretionary  decision  not  to  depart based  on  those  facts.

          Consequently,  we lack  appellate  jurisdiction to  entertain  an

          appeal of the defendant's sentence.

IV
                                          IV

                                      CONCLUSION
                                      CONCLUSION

                    For the foregoing  reasons, we  affirm the  defendant's

          conviction and dismiss  the appeal  of his sentence  for lack  of

          jurisdiction.

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