U.S. v. Anglin

• Citation: 169 F.3d 154
• Decision Date: 02 March 1999
• Docket Number: Docket No. 98-1340
• Parties: UNITED STATES of America, Appellee, v. Michael ANGLIN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 154

169 F.3d 154

UNITED STATES of America, Appellee, v. Michael ANGLIN, Defendant-Appellant.

Docket No. 98-1340

United States Court of Appeals Second Circuit.

Argued Jan. 15, 1999.

Decided March 2, 1999.

Steven R. Peikin, Assistant United States Attorney (Christine H. Chung of counsel; Mary Jo White, United States Attorney for the Southern District of New York), New York, New York, for Appellee.

Mitchell A. Golub, Golub & Golub (Susan L. Peters, of counsel), New York, New York, for Defendant-Appellant.

Before: WINTER, Chief Judge, KEARSE, Circuit Judge, and HAIGHT, District Judge. ^*

HAIGHT, District Judge:

Defendant-appellant Michael Anglin appeals from his conviction in the United States District Court for the Southern District of New York following a jury trial before Dominick L. DiCarlo, Senior Judge of the Court of International Trade, sitting by designation. The jury convicted Anglin on charges relating to the armed robbery of a bank. Anglin also appeals from the sentence imposed by the district court. For the reasons

that follow, we affirm Anglin's conviction, vacate his sentence, and remand for resentencing.

BACKGROUND

The Procedural History of the Case

During the morning of April 16, 1996, an armed individual and an accomplice robbed an on-site branch bank (the "City College Branch" or the "Branch") operated by Chemical Bank in a room on the ground floor of Shepherd Hall, a college building maintained by the City College of New York at 270 Convent Avenue, New York, N.Y. Chemical Bank established the Branch as part of a program by which it provided on-site banking services at institutions such as colleges, hospitals, insurance agencies, and brokerage firms. ¹ The City College Branch was open only on days that City College distributed financial-aid checks to students, and its business consisted primarily of cashing those checks. The robber and his accomplice fled the scene with more than $610,000.

Although the accomplice was never identified, the government proceeded against defendant-appellant Anglin on the theory that he was the armed robber. On April 2, 1997, the government presented an indictment charging Anglin in four counts: One, conspiring to commit the bank robbery, in violation of 18 U.S.C. § 371; Two, committing the robbery, in violation of 18 U.S.C. §§ 2113(a) and 2; Three, committing the robbery with the use of a gun, in violation of 18 U.S.C. §§ 2113(d) and 2; and Four, using and carrying a firearm in connection with the bank robbery charged in Counts Two and Three, and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c) and 2.

In a superseding indictment filed on August 1, 1997, the government repleaded those counts and charged Anglin in three additional counts: Five, money laundering in connection with his use of some of the bank robbery proceeds to purchase an automobile, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); Six, money laundering in connection with his use of some of the bank robbery proceeds to purchase $6,000 in money orders using an assumed name, in violation of the same statute; and Seven, engaging in a monetary transaction in criminally derived property greater than $10,000 in value, in connection with his purchase of the automobile, in violation of 18 U.S.C. § 1957.

The trial began on November 3, 1997, before Judge DiCarlo and a jury. On November 10, before resting its case in chief, the government moved on its own initiative to dismiss the three money laundering counts (Counts Five, Six and Seven) and the aiding and abetting charge in Count Four (using and carrying a firearm). The district court granted the government's motion. Defense counsel then moved to strike testimony the government had elicited about defendant's post-robbery purchases, on the ground that such evidence was relevant only to the money laundering counts, now dismissed. The district court denied that motion. On November 12, the jury returned its verdict, convicting Anglin on the four remaining counts. The district court denied Anglin's motion under Fed. R. Crim P. 29(c) for a judgment of acquittal after discharge of the jury.

On May 22, 1998, Judge DiCarlo sentenced Anglin to a term of 96 months' incarceration on Counts Two and Three (the bank robbery and armed bank robbery counts), which were deemed merged; a concurrent term of 60 months' incarceration on Count One (the conspiracy count); and a consecutive 60-months' incarceration on Count Four (the firearms count). Judge DiCarlo also sentenced Anglin to a term of five years of supervised release on Counts One and Four and concurrent three-year terms of supervised release on Counts One and Four. The district court imposed mandatory special assessments totaling $150 and ordered Anglin to pay $610,000 in restitution to Chemical Bank.

In sentencing Anglin to a term of 96 months on Counts Two and Three, Judge DiCarlo included in his calculations a 2-level increase in the severity of the offense pursuant to § 2B3.1(b)(4)(B) of the United States Sentencing Guidelines ("U.S.S.G."). That section provides: "if any person was physically restrained to facilitate the commission Anglin currently is serving his sentence.

of the offense or to facilitate escape, increase by 2 levels."

The Trial Evidence

The defense at trial was mistaken identity. Anglin did not take the stand, and called no witnesses, but defense counsel's opening statement, cross-examination of government witnesses, and summation made manifest Anglin's theory of the case: he had not committed the robbery. Thus the identity of the armed robber was the core factual issue.

To meet its burden on that issue, the government relied upon the direct identification evidence of two eyewitness-victims and circumstantial evidence from a number of sources. We summarize below the direct and circumstantial evidence introduced by the government to identify Anglin as the bank robber.

The Robbery and the Testimony of The Eyewitnesses

Shortly before 7:30 a.m. on April 16, 1996, several bank employees and armored car workers transformed a room at Shepherd Hall into the City College Branch of Chemical Bank. They accomplished this by entering the room, wheeling in bags of money and placing them in the tellers' work area, locking the door, and setting the burglar alarm.

At about this time, two men arrived at the entrance to Shepherd Hall. Following the usual practice, a security guard, Auria Semidey, asked them for identification and asked that they sign a registration sheet. Semidey testified that the shorter of the two men complied, but the taller one, wearing a hood that partially obscured his face and carrying a black knapsack, turned around quickly and left the building. Her suspicions aroused, Semidey called a City College police officer and gave a description of the men (although she was not able subsequently to identify any particular individual as the robber or the accomplice).

A few minutes before the Branch was scheduled to open, the Branch supervisor arrived and knocked on the door, which was still locked. Inside were four bank tellers, among them Michelle Marshall and Patrick Crowl. As one of the employees opened the door, a man (Anglin, on the government's theory of the case) came up behind the supervisor, yanked the door from her hands, pushed the barrel of a gun through the door, and forced his way into the Branch. The supervisor fled, shouting that the Branch was being robbed.

Marshall and Crowl, two of the tellers, testified at trial. They said that the intruder leveled his gun at the tellers, ordered them to get down on the floor, and instructed them not to look at him. A time came when a second person entered the Branch whom the tellers heard but did not see; this was presumably the accomplice. The robbers left with more than $610,000.

Michelle Marshall identified Anglin as the armed robber by selecting his photograph from an array she was shown during the investigation on February 19, 1997. She subsequently made an in-court identification of Anglin at trial. Marshall testified that although she dropped to the floor immediately, she was able to see the robber's face from that position, and that she stole several glances at him despite the robber's instructions not to do so. Further on the issue of identification, Marshall testified that the robber had a pronounced West Indian accent, and Anglin acknowledged during a post-arrest interview that he was born in Jamaica.

Patrick Crowl selected Anglin as the armed robber from a photo array that he viewed on the same day that Marshall did. He described himself as "very certain" of his identification at that time, his recollection "still fresh," and based upon Anglin's having stood directly in front of Crowl, "putting the machine gun in my face for about 15 seconds or more." ² However, Crowl was unable to make an in-court identification of Anglin; he testified that no person in the courtroom resembled either the person who committed the robbery or the person he had previously identified from the photo array.

Anglin's Prior Knowledge of the Bank's Operation

The government laid the basis for an inference of Anglin's knowledge of the Branch's operation by proof that Anglin's close friend, one Marland Beckford, attended City College, collected financial aid checks there, and had been advised that the City College Branch would be open on the day it was robbed. As we observe infra, Beckford accompanied Anglin during the latter's purchase of an expensive automobile 10 days after the robbery.

The Evidence of the Knapsack

As noted, security officer Semidey's suspicions had been aroused when the larger of the two men she described left in haste when asked to identify himself before entering Shepherd Hall. She said that the man was carrying a black knapsack.

During a search of the grounds about an hour after the robbery, FBI agents found a black canvas knapsack just outside Shepherd Hall. The knapsack contained a store...