U.S. v. Haslip

• Decision Date: 24 November 1998
• Docket Number: No. 97-3205,97-3205
• Citation: 160 F.3d 649
• Parties: 98 CJ C.A.R. 6245 UNITED STATES of America, Plaintiff-Appellee, v. Stephen G. HASLIP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 649

160 F.3d 649

98 CJ C.A.R. 6245

UNITED STATES of America, Plaintiff-Appellee, v. Stephen G. HASLIP, Defendant-Appellant.

No. 97-3205.

United States Court of Appeals, Tenth Circuit.

Nov. 24, 1998.

Debra L. Barnett (Jackie N. Williams, United States Attorney, with her on the brief), Assistant United States Attorney, Wichita, Kansas, for Plaintiff-Appellee.

Roger L. Falk, Wichita, Kansas, for Defendant-Appellant.

Before PORFILIO, BRORBY and MURPHY, Circuit Judges.

BRORBY, Circuit Judge.

Mr. Steven G. Haslip appeals his conviction for bank robbery, use of a firearm during the commission of that bank robbery, and possession of a firearm after a prior felony conviction. He asserts (1) there was insufficient evidence to sustain the jury's verdict, (2) the trial court erred by admitting evidence of a prior conviction for impeachment purposes, and (3) the trial court erroneously instructed the jury. Mr. Haslip also appeals the 322-month prison sentence imposed as punishment for those crimes, claiming he is not an "armed career criminal" under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm both the conviction and sentence.

BACKGROUND

The Fall River State Bank in Fall River, Kansas, was robbed on the morning of October 17, 1996. Two men entered the bank; one approached Alicia Ashenfelter, the teller stationed closest to the front door, and requested two rolls of dimes. The second man approached tellers Peggy Anderson and Christine Burt at the next teller window. As Ms. Ashenfelter turned to Ms. Anderson to request two rolls of dimes, she noticed the second man, later identified as Mr. Haslip, was pointing a gun at Ms. Anderson. Brandishing the gun and causing it to "click" twice, Mr. Haslip instructed Ms. Anderson to "[g]ive [him] all of the money."

Ms. Anderson put money from her station, including the bank's bait money into a white or clear plastic bag Mr. Haslip provided. Mr. Haslip then forced Ms. Anderson and Ms. Burt toward the vault. He forced Ms. Burt to go into the vault to retrieve more money and instructed Ms. Anderson to attend to a customer who appeared in the drive-up lane. After the customer left, Mr. Haslip ordered Ms. Anderson and Ms. Burt into the vault.

In the meantime, Mr. Haslip's co-defendant, Mr. Jimmy T. Davis, instructed Ms. Ashenfelter to place all the money from her teller station into a blue plastic bag. After she had done so, he ordered her into the vault with Ms. Anderson and Ms. Burt. The two men then closed and latched the vault door so it could not be opened from the inside. While in the vault, the tellers activated the silent alarm and prepared a description of the two robbers. They were released from the vault when customers entered the bank ten to fifteen minutes later. The total loss to the Fall River State Bank, a federally insured institution, was $13,909.00. Ms. Burt, who was conducting a personal financial transaction at the time of the robbery, also lost $100.00.

Shortly after the robbery, the Wilson County Sheriff placed a roadblock at a main The Sheriff and his officers immediately pursued the Ford onto the property of Mr. Wayne O'Dell. After losing sight of the car for a short time, they found it abandoned in a brushy area, down the side of an embankment. The car's engine was running, the transmission was in drive, the driver's window was down, and the passenger door was open. Mr. O'Dell ultimately spotted Mr. Haslip lying along a fence row. When directed by a Kansas Highway Patrol trooper to stand up and move toward him, Mr. Haslip stated he was alone, "was just hitchhiking," and "wanted to get out of the way" when he saw the police.

junction outside Fall River. Approximately one minute after establishing the roadblock, a Ford Probe crested the hill and approached the roadblock. As law enforcement officers watched, the car abruptly stopped, turned around, and drove away from the roadblock. The Sheriff noticed two people were inside the car.

Mr. Davis was arrested nearly two hours later, after a Highway Patrol trooper and K-9 unit found him hiding in trees and bushes on the O'Dell property. Law enforcement personnel continued to search the property, but found no other cars or suspects. They discovered the Ford Probe had been stolen from the driveway of Ms. Teresa Flynn, who lived in a small community outside Fall River. After getting Ms. Flynn's consent, officers searched the car and found a blue plastic bag containing a loaded Smith and Wesson Silver 9mm and a loaded Dan Wesson .357 magnum revolver. The white plastic bag contained $13,009.00, including all the bank's bait money. The remaining $1,000.00 was never recovered.

Mr. Haslip and Mr. Davis were tried together on a superseding indictment charging each with (1) bank robbery in violation of 18 U.S.C. § 2113(a), (2) using or carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1), and (3) possession of a firearm after being previously convicted of a felony in violation of 18 U.S.C. § 922(g)(1).

Each of the three tellers working at the bank on the day of the robbery testified at trial. Both Ms. Ashenfelter and Ms. Anderson positively identified Mr. Haslip. Ms. Burt testified she could not say if Mr. Haslip was one of the robbers or not.

Mr. Haslip testified he did not rob the Fall River Bank, or possess a gun on the day of the robbery. He claimed he was riding through Kansas with a "Ms. Parks, or Ms. Parker," when he bumped into Mr. Davis, an old friend, at a cafe in Fredonia. According to Mr. Haslip, he and Mr. Davis agreed to go look for a marijuana field outside of Fredonia, near the O'Dell property. Before Ms. Parks returned to pick him up, Mr. Haslip heard police radios and voices. He decided to walk along the fence line of the O'Dell property close to the highway, and at one point, laid down next to the fence hoping the police would leave and he could go home. On cross-examination, Mr. Haslip admitted that although he was looking for marijuana, he had no gloves, coat, tools or packaging materials. He further stated he was not going to call "Ms. Parks" to testify on his behalf.

The jury returned a verdict of guilty as charged on both defendants. The court subsequently sentenced Mr. Haslip to 262 months imprisonment for bank robbery, 262 months imprisonment for the use of a firearm during the commission of bank robbery (each 262-month sentence to run concurrently), and 60 months imprisonment for possession of a firearm by a convicted felon (to run consecutively to the sentences imposed for counts one and two). Accordingly, Mr. Haslip's total term of confinement is 322 months.

DISCUSSION

Sufficiency of Evidence

Mr. Haslip argues the government's evidence identifying him as one of the bank robbers was insufficient to support the jury's guilty verdict. The standard Mr. Haslip must meet to prevail on this argument is a difficult one, since we reverse on a sufficiency of the evidence claim "only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Wacker, 72 F.3d 1453, 1462-63 (10th Cir.1995). Moreover, when evaluating the record de novo we must view the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the government. See United States v. Wolny, 133 F.3d 758, 760 (10th Cir.1998). We "may neither weigh conflicting evidence nor consider the credibility of witnesses." United States v. Pappert, 112 F.3d 1073, 1077 (10th Cir.1997) (internal citation omitted).

The evidence in this case includes the testimony of two bank tellers who were present when the Fall River Bank was robbed. Both described the robbery in detail and positively identified Mr. Haslip as one of the robbers. Mr. Haslip had full opportunity to cross-examine these witnesses as to the certainty of their identification. Further, Mr. Haslip does not contest he was arrested after being found lying in a field near the place where law enforcement officers found a car that had fled from a roadblock. Police retrieved the plastic bags used in the robbery, the bank's bait money, and two loaded handguns from that same car. Viewing this evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the government, we conclude a rational jury easily could have disregarded Mr. Haslip's explanation as to why he was lying in a field near the getaway car, and found instead it was Mr. Haslip who robbed the Fall River Bank in violation of 18 U.S.C. § 2113(a). Accordingly, we hold the evidence was more than sufficient to support Mr. Haslip's robbery conviction. ¹

Admissibility of Evidence Concerning Prior Felony Conviction

Mr. Haslip next challenges the district court's decision to allow the prosecution, on cross-examination, to introduce evidence that he was on "life parole" in Missouri for a first degree murder conviction. Prior to trial, the court granted Mr. Haslip's motion in limine to exclude evidence of his prior convictions. As grounds for its pretrial ruling, the court stated the evidence was not relevant to show identity, motive or plan under Fed.R.Evid. 404(b), and thus the probative value was substantially outweighed by the potential for prejudice.

At the conclusion of the government's case, the parties presented a stipulation to the jury that Mr. Haslip previously had been convicted of a felony punishable by imprisonment of more than one year. Nevertheless, on cross-examination, the prosecution asked Mr. Haslip about being on parole from the State of Missouri. Defense counsel objected to this questioning, claiming it was prohibited by the court's prior ruling. The court overruled defense counsel's objection, concluding evidence of Mr. Haslip's parole conditions was admissible for impeachment purposes under Fed.R.Evid. 609(a)(1)--namely, to demonstrate to the jury that Mr. Haslip was...