U.S. v. Harris
| Decision Date | 26 January 1999 |
| Docket Number | Nos. 97-6283,97-6437 and 97-6284,s. 97-6283 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Mashaun HARRIS, Defendant-Appellant (97-6283). United States of America, Plaintiff-Appellee/Cross-Appellant (97-6437), v. Andre P. Virges, Defendant-Appellant (97-6284)/Cross-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Tony R. Arvin, Asst. U.S. Attorney (argued and briefed), Office of U.S. Attorney, Memphis, TN, for United States of America.
R. Linley Richter, Jr. (argued and briefed), Richter Law Office, Memphis, TN, Mashaun Harris (briefed), pro se, U.S. Penitentiary, Beaumont, TX, for Mashaun Harris.
Karen R. Cicala (argued and briefed), The Hardison Law Firm, Memphis, TN, Andre P. Virges (briefed), pro se, Northwest Correction Center, Tiptonville, TN, for Andre P. Virges.
Before: NELSON and DAUGHTREY, Circuit Judges; SARGUS, District Judge. *
The defendants, Mashaun Harris and Andre Virges, stand convicted of bank robbery, a crime under 18 U.S.C. § 2113. Through counsel, Mr. Harris has appealed his conviction on two grounds: (1) that the district court erred in declining to declare a mistrial after a government witness let the jury know that Harris had been arrested before, and (2) that the court erred in failing to rule on certain discovery motions. Mr. Virges, through counsel, has appealed his conviction on the ground that the court committed reversible error in overruling an objection interposed after his former girlfriend testified that she was afraid of him.
Both men have filed virtually identical pro se briefs arguing that the government failed to show that the deposits of the bank in question were insured by the Federal Deposit Insurance Corporation. See 18 U.S.C. § 2113(f). The pro se briefs also challenge sentence enhancements imposed under U.S.S.G. § 3B1.4, a section of the sentencing guidelines that prescribes an offense level increase where, among other things, a person less than 18 years of age is used to assist in avoiding apprehension for the offense.
The government has taken a cross-appeal from the sentence given Mr. Virges. The cross-appeal turns on the question whether a state court conviction for the crime of escape from a jail or workhouse should have been treated as a conviction for a "crime of violence" under the career offender sections of the sentencing guidelines, U.S.S.G. §§ 4B1.1 and 4B1.2.
Finding the defendants' assignments of error unpersuasive, we shall affirm the convictions and the sentence imposed on Mr. Harris. We agree with the government that escape should be treated as a crime of violence--an issue not heretofore settled in this circuit--and we shall therefore remand the Virges case for resentencing. In doing so, however, we note that on remand the district court will have an opportunity to consider whether it would be appropriate to depart downward from the sentence range prescribed by the guidelines.
On March 12, 1996, at approximately 9:20 a.m., two masked men robbed a branch of the Union Planters Bank in Memphis, Tennessee. The robbers, who were unarmed, carried off $14,677.40 in a black gym bag.
Because the robbers wore stocking masks, no one in the bank could see their faces. Identification of the perpetrators was facilitated, however, by the fact that the bundles of cash to which they helped themselves included two dye packs that exploded soon after the robbery.
In presenting its case to the jury, the government linked the defendants to the dye packs through the testimony of Courtney Williams and Kimberlee Kubacki. Ms. Williams was the girlfriend of defendant Mashaun Harris. Ms. Kubacki--a 17-year-old juvenile at the time of the crime--was the girlfriend of Mashaun's older brother, 28-year-old Andre Virges.
Testifying under a grant of immunity, Ms. Williams told the jury that she had not known about the bank robbery in advance; that Mashaun Harris had wanted to borrow her car, a red Mitsubishi, on the morning in question; that because of his tendency to "stay[ ] gone all the time" when he had the car to himself, she volunteered to take him where he wanted to go; that he instructed her to drive him first to the house where his brother was staying with Kim Kubacki and then, after Ms. Kubacki and Mr. Harris had joined them, to the neighborhood where the bank was located; that the men got out of the car at a spot close to the bank and told the girls to wait for them at a nearby parking lot; that the defendants soon returned to the car, got in the back seat, and--with a cloud of red smoke filling the vehicle--told Ms. Williams to "[d]rive this [expletive deleted] car, a bank been robbed." 1
Ms. Kubacki gave a similar account of the morning's events. She testified that her then-boyfriend, Andre Virges, had awakened her on the morning of March 12, 1996, and told her to get dressed because Courtney and Mashaun were coming over; that the four of them drove to the vicinity of the bank in Ms. Williams' red Mitsubishi; that the brothers were dropped off after telling the girls to wait for them in the parking lot; that on their return, Andre Virges was wearing a pantyhose mask and Mashaun Harris was carrying a bag which, when it was placed in the back seat, became the source of an impressive emission of red smoke; and that the defendants' first words, after they got back in the car, were "We just robbed a bank, pull off." 2
Testimony adduced from one or another of the government's witnesses indicated that on leaving the parking lot after the robbery the foursome drove to the home of a cousin of the defendants; that there the defendants attempted to launder the dye-stained currency, soaking it in pots containing "dye remover" and then running it through a laundry dryer; that the young women cleaned up the car (the carpeting of which had a red stain they could not get rid of) and used air freshener to try to mask the smell left by the dye packs; that the four then went to Chicago for a few days, where the defendants had the car painted green in the hope of avoiding detection by the police when they returned to Memphis; that one of the defendants was arrested in the freshly verdant Mitsubishi on April 8, 1996, by which time the stained area of the carpeting had been cut out and disposed of; and that under a mattress at the home of the defendants' mother the police found currency on which, although the money appeared to have been bleached, red dye was still visible. All in all, it is fair to say, the evidence of the defendants' guilt was very strong indeed.
After the jury returned its verdicts of guilty, presentence investigation reports were prepared for the district court by a probation officer. All parties received copies of the reports. Neither defendant filed any objections, but the Assistant U.S. Attorney handling the matter for the government objected to the probation officer's failure to recommend that Mr. Virges be sentenced as a career offender. Overruling this objection, the district court sentenced Mr. Virges to imprisonment for a term of 137 months. Mr. Harris received a term of 105 months. Each defendant appealed, and the United States cross-appealed as to the sentence given Mr. Virges.
A
Mr. Harris argues on appeal that he was entitled to a mistrial because of the following testimony by police officer Robert Shemwell:
Defense counsel objected to the answer to the last question, whereupon the district court sua sponte instructed the jury as follows: "Ladies and gentlemen, disregard any statement by the Sergeant about any arrest record of any kind." Out of the jury's presence, defense counsel then moved for a mistrial. The motion was denied.
Relying primarily on United States v. Blanton, 520 F.2d 907 (6th Cir.1975), Mr. Harris contends that the district court abused its discretion in refusing to declare a mistrial. The contention is unpersuasive.
In Blanton, where the defendant was tried on charges of illegal possession of firearms, two of the government's witnesses testified that the defendant was a bank robbery suspect. One of the witnesses, in his eagerness to re-emphasize the objectionable evidence, overrode an explicit ruling by the trial judge. Id. at 910. Given this egregious misconduct, we held that the defendant was entitled to a new trial.
In United States v. Hernandez, 873 F.2d 925, 927-28 (6th Cir.1989), a subsequent case involving improper testimony by a government witness, it was held that Blanton did not require a new trial under circumstances described by this court as follows:
In the case at bar, similarly, it does not appear that the government intentionally elicited the reference to defendant Harris' prior arrest; the government's line of questioning was reasonable; the district court gave an immediate and clear limiting instruction; the isolated allusion to the prior arrest was not part of a pattern indicative of bad faith; and the officer's stray remark constituted only a minuscule part of the evidence against Mr. Harris. Under these circumstances, it is clear, ...
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