136 F.3d 1388 (10th Cir. 1998), 97-6067, United States v. Trujillo

Docket Nº:97-6067.
Citation:136 F.3d 1388
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles Lee TRUJILLO, Defendant-Appellant.
Case Date:February 23, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1388

136 F.3d 1388 (10th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

Charles Lee TRUJILLO, Defendant-Appellant.

No. 97-6067.

United States Court of Appeals, Tenth Circuit

February 23, 1998

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[Copyrighted Material Omitted]

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Edward J. Kumiega (Patrick M. Ryan, United States Attorney, with him on the brief), Assistant United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee.

Susan L. Foreman (Michael G. Katz, Federal Public Defender, with her on the brief), Assistant Federal Public Defender, Denver, CO, for Defendant-Appellant.

Before PORFILIO, BRORBY and MURPHY, Circuit Judges.

BRORBY, Circuit Judge.

Defendant, Mr. Charles Trujillo, timely appeals his conviction in Oklahoma federal district court of armed bank robbery, carrying a firearm in relation to a crime of violence, and felon in possession of a firearm. He further appeals the $7,500 fine the district court imposed at sentencing. For the reasons set forth below, we affirm both his conviction and the fine.

I. FACTS

On October 23, 1991, the Del City branch of the Bank of Oklahoma was robbed of $7550. A man wearing a hard plastic mask that covered his head and holding a small semiautomatic handgun entered the bank shortly after 9:00 a.m. After walking behind the teller counter, holding the handgun at waist level and parallel to the floor, the robber told Customer Service Representative Marilyn Hendricks, and bank teller Brenda

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Lilly, to place money in a cloth bag he provided. Ms. Hendricks complied with his demand. The robber then moved to another teller station; when the teller tried to give him bait money, he fled through the front door.

Ms. Hendricks described the robber as wearing a blue jacket, jeans and a hard transparent mask. She saw hair coming down across the nape of the robber's neck and his skin tone. She testified he was Native American. Ms. Hendricks further testified that while she could not see any clear facial features, the robber was clean shaven. He was approximately 5'11" tall and weighed 200-250 pounds.

Ms. Lilly described the robber as a white male, approximately 6'1" tall and weighing 250 pounds. She testified the robber was wearing a blue windbreaker and jeans, and may have been wearing layers of clothing beneath his jacket that made him appear larger. Although she could not recall if the robber had facial hair, Ms. Lilly testified she could not see a full beard pushing against the mask, which was close to the skin of the face.

Bank customer Thurman Whitt realized what had happened when he heard a scream and saw someone getting into a mini-van with a bag in his hand. Mr. Whitt then left the bank and followed the mini-van in his pickup. After losing sight of the mini-van for a moment, he saw it pull into an apartment complex. When Mr. Whitt drove into the complex, he found the mini-van parked with no one inside. However, he saw a man run across from the van and into a maroon or red Oldsmobile with a missing left rear hubcap. Mr. Whitt described the man entering the Oldsmobile as white, with olive skin. He wore a tan jacket, no mask, and was clean shaven. Mr. Whitt followed the Oldsmobile through the apartment complex, out onto a four-lane highway and through a Circle K. Mr. Whitt got within 50 to 100 feet of the Oldsmobile; however, because the cars were moving back and forth, he was unable to get the license tag number. Ultimately, Mr. Whitt lost sight of the Oldsmobile, flagged down a Del City police officer, and took the officer to the mini-van at the apartment complex.

The mini-van was traced to Toyah Braun, Mr. Trujillo's ex-wife. After their divorce, Ms. Braun kept the mini-van and Mr. Trujillo kept a 1982, brownish-red Oldsmobile with missing hubcaps. Mr. Trujillo still had keys to the mini-van, however. On the morning of the robbery, Ms. Braun discovered her mini-van missing from her residence. She telephoned Mr. Trujillo, who denied taking it. She then reported the van stolen. Ms. Braun described Mr. Trujillo as Mexican and a quarter Indian, 5'8" tall and weighing 165 pounds.

The Federal Bureau of Investigation ("FBI") focused its investigation on Mr. Trujillo and Donald Ladd, a friend of Mr. Trujillo's who was already under FBI surveillance as a suspected bank robber. 1 On October 28, 1991, the FBI obtained search warrants for (1) Mr. Trujillo's apartment, (2) Mr. Trujillo's 1982 Oldsmobile, and (3) Mr. Ladd's residence. In Mr. Trujillo's apartment the agents found a sealed box that contained a sealed envelope, a long duster coat, a toy gun and holster, a bank bag, and a cloth bag. The sealed envelope contained six newspaper clippings pertaining to Oklahoma bank robberies. Both Mr. Trujillo and Mr. Ladd agreed the items in the box belonged to Mr. Ladd; he had put the items in the box, sealed the box and given it to Mr. Trujillo to keep because he knew he was under surveillance. Upon searching Mr. Trujillo's Oldsmobile, the agents found a brown leather jacket on the back seat and a blue nylon jacket and plastic garbage bag with nine knit caps in the trunk. The agents also located a paper bag containing $5,053 hidden in the trunk's tire well.

The FBI first interviewed Mr. Trujillo in January 1992. After voluntarily appearing and signing a waiver of his Miranda rights, Mr. Trujillo stated he did not go to work on the day of the robbery; instead, he slept until about 10:00 a.m. Mr. Trujillo said the Oldsmobile was parked outside his apartment during the time of the robbery, but acknowledged

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the mini-van belonging to his ex-wife and his personal vehicle were used in the robbery. Mr. Trujillo insinuated Mr. Ladd may have taken both vehicles as he had access to them and could have made car keys. Mr. Trujillo denied any knowledge of the cash found in the Oldsmobile and stated the money was not his. Mr. Trujillo did, however, admit borrowing a .25 caliber automatic handgun from a friend and co-worker several days prior to the bank robbery. He said he returned the gun the day after the bank robbery and explained he borrowed the gun because he was contemplating suicide. Mr. Trujillo further acknowledged he purchased a money order in the amount of $400 the day after the robbery. He said he paid for the money order in cash from his paycheck, which had been issued on October 15, 1991. Mr. Trujillo went on to say he was unaware of any robberies perpetrated by Mr. Ladd, and he had no knowledge of a Halloween mask possessed by Mr. Ladd.

Mr. Trujillo terminated the interview after Agent Fitzpatrick informed him FBI surveillance had seen him riding on the back of Mr. Ladd's motorcycle at 9:34 a.m. on the morning of the bank robbery. According to Agent Fitzpatrick, Mr. Trujillo became visibly shaken and stated, "I think I've said enough."

Over four years later, on August 6, 1996, a grand jury returned a three-count indictment charging Mr. Trujillo with bank robbery, using a firearm during a crime of violence, and felon in possession of a firearm. Mr. Trujillo was arrested in Grand Junction, Colorado, on August 8, 1996.

Mr. Ladd, in the meantime, had been arrested and was serving an eight-year sentence for a 1992 armed robbery in Arkansas. In January 1996, a grand jury from the Western District of Oklahoma indicted Mr. Ladd on eleven counts related to bank robbery and firearm violations. However, that indictment did not include the Del City robbery. In exchange for his guilty plea to one count of conspiracy to commit bank robbery and his agreement to provide testimony, the indictment was dismissed and Mr. Ladd was sentenced to forty-six months imprisonment to run consecutively with his Arkansas sentence. If found guilty of all the charges in the indictment, Mr. Ladd might have faced sixty to seventy years incarceration.

In the course of his testimony against Mr. Trujillo, Mr. Ladd stated he told Mr. Trujillo about his bank robbery exploits when he and Mr. Trujillo became friends in 1991. More specifically, he explained to Mr. Trujillo how he would steal a car, get a mask, go over or behind the counter, and wear loose clothing so the witnesses could not accurately approximate his size. Mr. Ladd further testified that at about 9:30 a.m. on the morning of the Del City bank robbery, Mr. Trujillo came to his house and asked for a ride. Mr. Trujillo told Mr. Ladd...

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