20 F.3d 801 (8th Cir. 1994), 93-2817, United States v. Patterson

Docket Nº:93-2817.
Citation:20 F.3d 801
Party Name:UNITED STATES of America, Appellee, v. Charles Lloyd PATTERSON, Sr., Appellant.
Case Date:February 25, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 801

20 F.3d 801 (8th Cir. 1994)

UNITED STATES of America, Appellee,

v.

Charles Lloyd PATTERSON, Sr., Appellant.

No. 93-2817.

United States Court of Appeals, Eighth Circuit

February 25, 1994

        Submitted Nov. 8, 1993.

        Rehearing Denied April 8, 1994.

Page 802

        Counsel who presented argument on behalf of the appellant was H.E. Cummins, Little Rock, AR. Anthony J. Sherman, Little Rock, AR.

        Counsel who presented argument on behalf of the appellee was Fletcher Jackson, Asst. U.S. Atty., Little Rock, AR.

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        Before McMILLIAN and MAGILL, Circuit Judges, and JACKSON, [*] District Judge.

        McMILLIAN, Circuit Judge.

        Defendant Charles Lloyd Patterson, Sr., appeals from a final judgment entered in the United States District Court 1 for the Eastern District of Arkansas sentencing him to 330 months in prison, five years of supervised release, and a special assessment of $150, following his conviction by a jury on three counts of aircraft piracy, interference with flight crew, and possession of a stolen aircraft. 2 For reversal, defendant argues that the district court (1) erred in denying his motion to dismiss Count III of the indictment on double jeopardy grounds; (2) abused its discretion in denying his motion to sever Count III of the indictment; (3) erred in permitting in-court identifications by witnesses previously shown single-photograph displays of his picture; (4) erred in holding that the evidence supporting his Count III conviction was sufficient; and (5) erred in computing his criminal history category at sentencing. For the reasons discussed below, we affirm.

       I. Background

Cessna aircraft hijacking in Arkansas

        On April 9, 1992, a man fitting defendant's description chartered a flight on a private Cessna aircraft from Pine Bluff, Arkansas, to Little Rock, Arkansas, under the name L. King. The chartered plane was a Cessna 172P aircraft, tail number N62112. En route, the man threatened the pilot, Phillip O. Taylor, with a Marksman .177 caliber air gun and took control of the plane. Taylor was the only other person on the plane. The hijacker bound Taylor and covered his head with a bag during part of the flight. He left Taylor in Carlisle, Arkansas, then flew off in the plane. At the time of the hijacking, defendant had been in Pine Bluff, Arkansas, on furlough from the Arkansas Department of Corrections. Defendant had previously earned a pilot's license with multi-engine and instrument ratings.

        On the next day, April 10, 1992, the following events took place. In the early morning hours, a man believed to be defendant broke into the home of Alma and Ed Ward in Batesville, Arkansas. He entered their bedroom, threatened them with a weapon, and stole a .22 caliber Derringer pistol, several hundred dollars in cash, and their Cadillac. Later that day, Taylor, the hijacked pilot, was contacted by the Arkansas Department of Corrections. Officials showed him a single photograph of defendant. Taylor identified defendant as the hijacker. Meanwhile, in Sulphur Springs, Texas, a plane fitting the description of the stolen Cessna landed at the airport. Janice Lancaster was in charge of the airport and logged the plane's landing. A man fitting defendant's description came into the airport and asked Lancaster for the use of a telephone.

        On April 12, 1992, FBI agents interviewed Lancaster and showed her a single picture of defendant in a newspaper. She identified him as the man who had entered the terminal two days before. That same day, a plane identified as the stolen Cessna from Pine Bluff, Arkansas, was found in a hangar at the Sulphur Springs airport.

Piper aircraft hijacking in Colorado

        On June 7, 1992, a man fitting defendant's description used the name Fred Ward to arrange an introductory lesson with Dakota Ridge Aviation at the Boulder County Airport in Boulder, Colorado. The man was given a lesson by flight instructor Lisa Beadling in a Piper Warrior II aircraft. During the lesson, the man used a .22 caliber Derringer pistol, identified as the gun stolen from Alma and Ed Ward, to hijack the plane. The hijacker released Beadling, the only other person on the plane, at the Tri-County Airport

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in Erie, Colorado, and flew off in the plane.

        Beadling positively identified another man as the hijacker of the Piper aircraft. That man had a solid alibi. Beadling later identified defendant as the hijacker. On both occasions, she was shown a single-photograph display.

        Evidence showed that the stolen Piper aircraft was flown to Woodward, Oklahoma, Horseshoe Bend, Arkansas, and Marshall, Texas, where it was abandoned. During that same period of time, defendant was a fugitive from the Arkansas Department of Corrections, having disappeared from Pine Bluff, Arkansas, the previous April.

        On June 19, 1992, defendant was arrested at a motel in Odessa, Texas. He was indicted in the Eastern District of Arkansas on charges of aircraft piracy, interference with flight crew, and possession of a stolen aircraft. The first two counts were based upon the April 1992 Arkansas hijacking involving pilot Philip Taylor and the Cessna aircraft. The third count was based upon the June 1992 Colorado hijacking involving instructor Lisa Beadling and the Piper aircraft which was flown from Boulder, Colorado, to Marshall, Texas, with a stop in Horseshoe Bend, Arkansas. Defendant was tried in March of 1993. The defense at trial was based upon a theory of mistaken identity. The jury found defendant guilty on all three counts. At sentencing, the district court determined that defendant's total offense level was 42 and his criminal history category was VI, resulting in a guideline range of 360 months to life. The district court then departed downward, sentencing defendant to 330 months imprisonment, to run concurrently with a prison sentence imposed in an earlier federal criminal action in the District of Colorado. In that case, defendant was convicted on five counts arising out of the June 1992 Piper aircraft hijacking which originated in Boulder, Colorado. In the Colorado case, defendant was sentenced to a total of 300 months imprisonment. Defendant timely appealed the judgment of the Arkansas district court.

       II. Discussion

Double jeopardy

        Defendant argues that his conviction under 18 U.S.C. Sec. 2313, for possession of a stolen aircraft, violates the double jeopardy clause of the Fifth Amendment because he previously had been convicted under 18 U.S.C. Sec. 2312, for transportation of a stolen aircraft, arising out of the same conduct and set of facts. Under Sec. 2313, the government was required in the present case to prove that defendant knowingly possessed a stolen aircraft which had crossed state lines. Under Sec. 2312, the government was required in the Colorado case to prove that defendant knowingly transported a stolen aircraft across state lines. Defendant contends that the first crime is therefore a lesser included offense of the second crime because transportation is a combination of possession and movement. Defendant also maintains that the conduct which the government proved in this case and the earlier Colorado criminal case is the same. Consequently, defendant argues, the district court erred in denying his motion to dismiss Count III of the indictment.

        The government argues in response that defendant was charged with two distinct crimes in Colorado and Arkansas. In the Colorado case, defendant was charged with transporting the Piper aircraft from Colorado to Oklahoma on June 7, 1992. In the present case, defendant was charged with possessing the same aircraft in Arkansas on June 9, 1992. The government relies on United States v. Easley, 927 F.2d 1442, 1451 (8th Cir.1991) (Easley ), which held that the defendants' double jeopardy rights had not been violated where they were convicted of mailing obscene materials from California to Minnesota, even though they...

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