U.S. v. Matthews

• Decision Date: 30 March 1994
• Docket Number: D,228,Nos. 509,s. 509
• Citation: 20 F.3d 538
• Parties: 40 Fed. R. Evid. Serv. 690 UNITED STATES of America, Appellee, v. Michael Lee MATTHEWS and Robert G. Prater, Defendants-Appellants. ockets 93-1158, 93-1172.
• Court: U.S. Court of Appeals — Second Circuit

Page 538

20 F.3d 538

40 Fed. R. Evid. Serv. 690

UNITED STATES of America, Appellee, v. Michael Lee MATTHEWS and Robert G. Prater, Defendants-Appellants.

Nos. 509, 228, Dockets 93-1158, 93-1172.

United States Court of Appeals, Second Circuit.

Argued Dec. 1, 1993.

Decided March 30, 1994.

Bernard J. Malone, Jr., Asst. U.S. Atty., Albany, New York (Gary L. Sharpe, U.S. Atty. for the N.D. of N.Y., Syracuse, NY, on the brief), for appellee.

David A. Lewis, New York City (The Legal Aid Soc., Federal Defender Services Unit, on the brief), for defendant-appellant Michael Lee Matthews.

Richard L. Mott, Albany, NY for defendant-appellant Robert G. Prater.

Before: KEARSE and JACOBS, Circuit Judges, and CARTER, District Judge. ^*

KEARSE, Circuit Judge:

Defendants Michael Lee Matthews and Robert G. Prater appeal from judgments entered in the United States District Court for the Northern District of New York, following a jury trial before Howard G. Munson, Judge, convicting each of them on one count of bank robbery, in violation of 18 U.S.C. Secs. 2113(a) and (b) (1988), and one count of conspiracy to commit bank robbery, in violation of 18 U.S.C. Sec. 371 (1988). Matthews was sentenced principally to 135 months' imprisonment on the robbery count and 60 months' imprisonment on the conspiracy count, to be served concurrently, followed by a three-year term of supervised release. Prater was sentenced principally to 108 months' imprisonment on the robbery count and 60 months' imprisonment on the conspiracy count, to be served concurrently, followed by two concurrent three-year terms of supervised release. Each defendant was ordered to pay $37,570 in restitution. On appeal, Matthews raises constitutional challenges to the admission of certain evidence against him; Prater challenges the sufficiency of the evidence to convict him and raises various claims of trial error; and both defendants contend that the district court erred in calculating their sentences. For the reasons below, we reject defendants' challenges to the conduct of trial but find merit in their sentencing claim. Accordingly, we vacate the judgments and remand for resentencing.

I. BACKGROUND

On November 8, 1991, at approximately 10:16 a.m., three masked men, armed with what appeared to be handguns, entered a bank in Schenectady, New York. The robbers ordered the customers and tellers to lie on the floor and threatened to shoot those who did not obey. Two of the robbers vaulted the tellers' counter and took more than $37,500 from the cash drawers. The men left the bank less than two minutes after they entered.

In February 1992, Matthews and Prater were arrested and charged with the robbery and with conspiracy to commit the robbery.

A. The Government's Case

The government's evidence at trial included the testimony of several bank customers and employees who were in the bank during the robbery; the testimony of a witness who, shortly after the robbery, saw three men hurriedly jettison their outer clothing and change vehicles; the testimony of several law enforcement officers who investigated the robbery; and the testimony of Prater's former girlfriend, who in December 1991 had given information to a policeman in Syracuse, New York, which first led the authorities to focus on Prater and Matthews. Taken in the light most favorable to the government, the evidence was as follows.

Bank customer John Donnelly, who entered the bank from its parking lot shortly before the robbery, had walked past a vehicle he described as a light-colored, four-door, mid-sized car, which was backed up to the bank next to the entrance. Three men were in the car; the man in the driver's seat and at least one of the other two were black. Donnelly got a 5-10-second look at the man who occupied the driver's seat. Donnelly then entered the bank and was inside when the robbers entered. He testified that through the holes in one robber's mask, he could see that that robber was black. Prior to trial, Donnelly viewed a photographic array and selected a picture of Matthews as the man he had seen in the driver's seat of the car; he also identified Matthews at trial.

Mary Ellen Jacobson, a pedestrian passing through the bank's parking lot two minutes before the robbery, testified that she walked by a four-door beige car with maroon accents, an "older, Chevrolet type," backed up to the bank. Inside were a man in the driver's seat and an indeterminable number of people in the back seat. Jacobson was particularly aware of the car because it was Shortly after the robbery, William Barnes, general manager of a supermarket less than a mile from the bank, saw a brown or tan car drive into the supermarket parking lot and park next to a black or dark-colored pickup truck. Barnes saw three black men get out of the car and hurriedly take off some clothes and toss them into the weeds along the side of the lot. The three men then jumped into the truck and sped away. Barnes noted the truck's license plate number as HD3608 and called the police. At trial, Barnes identified Matthews as a passenger in the car.

the only one facing out from the bank and the only one with its motor running. Alert to whether or not it was safe for her to walk in front of it, she looked at the driver. At trial, she identified Matthews as the driver.

The police traced the HD3608 license plates to a bright yellow truck whose whereabouts were accounted for on the day of the robbery. However, a dark truck matching the description given by Barnes was registered to Matthews's wife. Its license plate number was HD2608.

The police recovered from the weeds the discarded clothing, a ski mask, and a toy gun resembling a .9mm pistol. They determined that the car in which Barnes had seen the men arrive, a tan Chevrolet Citation, had been stolen less than 24 hours before the robbery from a parking lot located a mile from the bank. A fingerprint and a palm print taken from the door of the Citation were eventually identified as belonging to Prater.

The government's primary witness was Victoria Dunbar, with whom Prater had lived in Syracuse off and on from June 1991 until Christmas 1991. Dunbar testified that around November 11, 1991, Prater "told me that him and Mike Matthews had robbed a bank, him and Mike [M]atthews and Artiste and he had told me it was an out-of-town bank." (Trial Transcript ("Tr.") 625.) Dunbar testified, Prater "told me that they went out of town, robbed a bank, him and Mike Matthews had guns, he had a pistol and Artiste had a pistol." (Id.) "That is what he said. Mike had the rifle and Mike stayed on the other side of the counter of the teller and Bobby [Prater] and Artiste went behind the counter." (Id. 626.) "Bobby had on black sweatpants and a black sweatshirt. He had a mask on his head, on his face. They all wore masks." (Id.) "[A]fter they got what they wanted, they left the bank, they backed out of the bank with their guns so won't nobody push no buttons or anything. They went, they had rented a car. They got in the car, drove it to where the truck was, because they had, Mike had hid his truck, drove it to where the truck was...." (Id. 627.) Dunbar testified that Prater did not tell her in what city the robbery had occurred.

Dunbar had not immediately reported Prater's statements to the authorities. On Christmas Day, however, after Prater got into a violent argument with Dunbar and the father of her children, she called the police to have Prater removed, and she reported Prater's November 11 statements to one of the policemen who responded to her call.

In addition, the government introduced the testimony of Matthews's father-in-law, who said he had seen Matthews and Prater together on four or five occasions in the summer and fall of 1991 and that the two had worked together. There was also evidence that though Matthews and Prater were residents of Syracuse in 1991, Matthews had previously lived in the home of one Emma Gibson in Schenectady a half-mile from the bank and had been employed just one block from the bank; that Matthews and Prater had been in Schenectady in the summer of 1991; and that Matthews told his parole officer he had visited Gibson in Schenectady in early November 1991.

B. The Defense

Both defendants denied that they were the robbers, and they presented evidence that they had not been in Schenectady on November 8, 1991. Matthews testified that he had been at home in Syracuse, which is some 140 miles from Schenectady, on that day. His testimony was corroborated by two witnesses. His close friend Viodelda Harris testified that he was with her in the black pickup truck in Syracuse on the day of the robbery. Matthews's wife also testified that Matthews had been in Syracuse on that day.

Prater, who did not testify, sought to show that he had been in Buffalo, which is some 285 miles from Schenectady, at the time of the robbery. Mary Garlington, who lived in Buffalo and was the grandmother of Prater's son, testified that at about noon on November 8 she had called her home trying to reach her son. She testified that Prater had answered the phone, and that she had conversed with him. Garlington testified that Prater was also at her house when she returned home from work that evening. Prater's father testified that at his home in Syracuse on November 10, he had received a collect call from Prater from Buffalo. Telephone company records indicated that Prater's father had indeed received a collect call from Buffalo on November 10.

Prater also sought to show, through cross-examination of Dunbar, that her testimony that Prater told her he had robbed a bank was a complete fabrication. He elicited some uncertainty as to her recollection of the date on which Prater told her of his robbery, and hence uncertainty as to the date of the robbery to which he referred. He also brought out that Dunbar had told the police that the robbery had taken place in Buffalo, Rochester, or Auburn, New York. In addition, as...