167 F.3d 628 (D.C. Cir. 1999), 97-3084, United States v. Gilliam

Docket Nº:97-3084, 97-3085.
Citation:167 F.3d 628
Party Name:UNITED STATES of America, Appellee, v. Darron Gregory GILLIAM, Appellant.
Case Date:February 26, 1999
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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167 F.3d 628 (D.C. Cir. 1999)

UNITED STATES of America, Appellee,

v.

Darron Gregory GILLIAM, Appellant.

Nos. 97-3084, 97-3085.

United States Court of Appeals, District of Columbia Circuit

February 26, 1999

Argued Oct. 14, 1998.

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Appeals from the United States District Court for the District of Columbia (Nos. 96cr00057-01, 96cr00057-02).

Neil H. Jaffee, Assistant Federal Public Defender, argued the cause for appellant Darron Gregory Gilliam. With him on the briefs was A. J. Kramer, Federal Public Defender.

Edward C. Sussman, appointed by the court, argued the cause and filed the briefs for appellant Ricardo Matthew Gross.

Chrisellen R. Kolb, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, and John R. Fisher, Assistant U.S. Attorney.

Before: SILBERMAN, ROGERS and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Darron Gilliam and Ricardo Gross appeal their convictions for armed bank robbery and related offenses on the grounds that the district court erred in denying their motions to suppress evidence and statements, for severance under Fed.R.Crim.P. 14, and for judgment notwithstanding the verdict on the firearms charges. Gross also challenges the district court's denial of his motion for judgment notwithstanding the verdict on his conviction for carjacking. 1 Finally, Gilliam challenges his sentence under the "three strikes" statute, 18 U.S.C. § 3559(c) (1994), on the ground that the government failed to prove that he had previously been convicted of two serious violent felonies. We affirm all of the convictions except Gilliam's § 922(g) firearms conviction.

I.

As a result of a robbery of the Hospitality Community Federal Credit Union, Gilliam and Gross were indicted for armed bank robbery, 18 U.S.C. § 2113(a) and (d) (1994); the use or carrying of two firearms during a crime of violence, id. § 924(c) (1994); possession of firearms by a convicted felon, id. § 922(g) (1994); armed carjacking, D.C.Code Ann. §§ 22-2903 and 22-105 (1981); and first-degree theft from a senior citizen, id. §§ 22-3811, 22-3812(a), 22-3901 and 22-105 (1981). 2 They were found guilty by the district court of the felon-in-possession count

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and by the jury on all other counts. 3 A third defendant, Jerome Thomas, was acquitted on all counts. The district court sentenced Gilliam to two mandatory terms of life imprisonment under the "three strikes" statute, 18 U.S.C. § 3559(c), for armed robbery and the § 924(c) firearms conviction, and Gross to an aggregate of 228 months imprisonment.

We review the evidence in Part II, where we address appellants' contention that the district court erred in denying their motions to suppress evidence and statements because the police lacked probable cause for a warrantless search of a bag in Gilliam's car. In Part III, we address appellants' severance claims. In Part IV, we address their challenges to their firearms convictions. Finally, in Part V, we address their challenges to their sentences.

II.

At approximately 7:30 a.m. on January 31, 1996, two masked men robbed the Hospitality Community Federal Credit Union in Northeast Washington, D.C., taking over $142,000 in cash and $242,000 in food stamps. The masked men confronted Ellsworth Brewer, the bank manager, as he was opening the bank's parking lot gate so that he could park his car, which was nearby with the driver's door open and the engine running. One man pressed something hard into Brewer's back that Brewer thought was a gun; the masked man said, "[y]ou know what this is. Don't act crazy." Brewer saw about two inches of a gun barrel protrude from the hands of the other man. While one masked man led Brewer to the bank, the other parked Brewer's car in the gated lot. The masked men then forced Brewer to let them into the bank; while one tied Evangeline Brown (another employee who was already in the bank) with duct tape, the other told Brewer that if he missed the combination for the vault, he would be shot in the head and his brains blown out. After obtaining currency and food stamps from the vault, the masked men tied Brewer and fled, taking Brewer's car. 4 Brewer and Brown described the masked men as being about six feet tall: one was wearing a light tan or beige trench-coat, dark corduroy pants, and gloves; the other was wearing a dark three-quarter length coat.

While canvassing the crime scene, the police found Gilliam's wallet, with his photo identification, in the bank's parking lot, along with a laundry bag like that used by the masked men to carry the currency and food stamps from the bank. Upon determining that Gilliam had a criminal record, including a prior armed robbery, the police went to his home at approximately 9:30 a.m. and learned from a neighbor that about an hour earlier, Gilliam drove up with two other men in a gray Plymouth Reliant K car, unloaded cardboard boxes and plastic bags, and took them into Gilliam's house. About 45 minutes later, the police saw two men leave Gilliam's house and get into the same gray car, which had been parked in front of the house. Each man was carrying a plastic bag; one was wearing a tan trench-coat and the other was wearing a dark coat.

The police followed the car until it stopped and its two occupants, Jerome Thomas and Ricardo Gross, got out. At that point, the police ordered Thomas and Gross away from the car and to the sidewalk, where they were placed on the ground and handcuffed. Through the open car door, a police officer saw the tan trench coat draped across the front passenger seat and partially hanging over a plastic bag. Believing that the bulky, bundled objects outlined in the bag were likely proceeds from the robbery, the officer searched the bag and found over $15,000 in cash and $1,270 in food stamps. Gross and Thomas were then formally arrested; Gilliam was arrested at approximately the same time near his house. 5 A subsequent search of

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Gilliam's home led to the recovery of two ski masks, gloves, a 9mm handgun, a semiautomatic pistol, a piece of paper stamped with the name of the credit union, approximately $117,500 in cash, and approximately $136,000 in food stamps. A subsequent search of the car produced two additional plastic bags found in the back seat containing $900 in currency, money wrappers, checks block-stamped from the credit union, and a small key from a teller's cash drawer that fit the drawers of the bank. In the pocket of the trench coat the police found a roll of duct tape, which contained Gross' fingerprint, that matched the duct tape used to tie Brown and Brewer at the bank. A sales receipt and registration in the glove box confirmed that the car was Gilliam's.

Probable cause to arrest exists where "the facts and circumstances" within a law enforcement officer's knowledge are "sufficient to warrant a prudent [person] in believing that [the suspects] had committed or [were] committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); see also Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); United States v. Lincoln, 992 F.2d 356, 358 (D.C.Cir.1993). Probable cause to search exists where in view of the "totality of the circumstances," "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Turner, 119 F.3d 18, 20 (D.C.Cir.1997). "Although probable cause to arrest and probable cause to search have different emphases," United States v. Dawkins, 17 F.3d 399, 404 (D.C.Cir.1994), articulating when probable cause exists is a "common sense" determination, which turns on the "practical considerations of everyday life." Gates, 462 U.S. at 231, 103 S.Ct. 2317 (quoting Brinegar, 338 U.S. at 175, 69 S.Ct. 1302). While each fact standing alone may be insufficient, the combination of all of the facts can establish probable cause, United States v. Catlett, 97 F.3d 565, 574 (D.C.Cir.1996); United States v. Halliman, 923 F.2d 873, 881 (D.C.Cir.1991), and certain conduct that may appear "innocent to a lay person may have entirely different significance to an experienced [law enforcement] officer." Catlett, 97 F.3d at 573-74 (quoting United States v. Hicks, 752 F.2d 379, 384 (9th Cir.1985)). We review the legal conclusion of probable cause de novo, the district court's findings of historical fact for clear error, and we give due weight to inferences drawn from the evidence by law enforcement officers and the district court. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Harrison, 103 F.3d 986, 989 (D.C.Cir.1997).

Applying these principles, we find no error in the district court's denial of appellants' motions to suppress the evidence found in the bag in Gilliam's car. 6 Based on the physical evidence at the robbery scene, the eyewitnesses' statements, and the tight time frame, as well as their own observations and those of Gilliam's neighbor, the police had reason to believe that the two men who got into Gilliam's car had participated in criminal activity. Compare Brinegar, 338 U.S. at 175-76, 69 S.Ct. 1302, and Catlett, 97 F.3d at 573, and Halliman, 923 F.2d at 881-82, and United States v. Young, 598 F.2d 296, 298-300 (D.C.Cir.1979), and Coleman v. United States, 420 F.2d 616, 621 (D.C.Cir.1969), with Beck, 379 U.S. at 91, 85 S.Ct. 223, and Henry, 361 U.S. at 100-02, 80 S.Ct. 168. The same evidence provided a sufficient...

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