U.S. v. Waldon, 98-5609

• Citation: 206 F.3d 597
• Decision Date: 10 December 1999
• Docket Number: No. 98-5609,98-5609
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Jessie Lee Waldon, Defendant-Appellant. Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 597

206 F.3d 597 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Jessie Lee Waldon, Defendant-Appellant.

No. 98-5609

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: December 10, 1999

Decided and Filed: February 17, 2000

Appeal from the United States District Court for the Western District of Kentucky at Louisville; No. 97-00064--John G. Heyburn II, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Terry M. Cushing, John L. Caudill, ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellee.

Frank P. Campisano, JARRETT & CAMPISANO, Louisville, Kentucky, Jessie Lee Waldron, Beaver, West Virginia, for Defendant-Appellant.

for Appellant.

Before: BATCHELDER and MOORE, Circuit Judges; O'MALLEY, District Judge^*.

OPINION

O'MALLEY, District Judge.

Jessie Lee Waldon appeals his conviction and sentence for bank robbery in violation of 18 U.S.C. §2113(a). On appeal, Waldon raises five issues. First, Waldon challenges the district court's denial of his motion to suppress evidence. Second, Waldon challenges the district court's failure to instruct the jury that, as an alternative to convicting him of bank robbery, it could convict him of the lesser included offense of bank larceny. Third, Waldon asserts the district court should have granted his motion for a mistrial, after two jurors observed him in handcuffs and shackles as he was being transported from the courthouse. Fourth, Waldon argues the district court erred when it enhanced his sentence for obstruction of justice, pursuant to U.S.S.G. §3C1.1. And fifth, Waldon asserts the district court erred when it added an additional three criminal history points pursuant to U.S.S.G. §4A1.1(f)¹. Because we find none of Waldon's assertions of error are well-taken, we AFFIRM both the conviction and the sentence in this case.

JURISDICTION

The district court had subject matter jurisdiction over this case pursuant to 18 U.S.C. §3231, and this Court has jurisdiction over Waldon's timely appeal pursuant to 28 U.S.C. §1291 and 18 U.S.C. §3742(a).

FACTUAL BACKGROUND

On July 18, 1997, at 10:21 a.m., a man wearing a black ski mask entered the Fifth Third Bank in Louisville, Kentucky, and ordered the bank's employees and customers to get down on the floor. The man told several bank tellers to open their cash drawers, from which he took approximately $5,405. The man made no comments regarding a weapon, nor did he display a weapon during the robbery. As the man left the bank, a dye pack that had been disguised as a roll of twenty-dollar bills exploded, covering the money with red dye.

Based on descriptions that were given by several bank employees, the police identified the suspect as being an African-American male of slender or medium build, between 5'7" and 6'0" tall, and weighing between 140-150 pounds. He was wearing a blue baseball cap, gloves, a nylon jacket, blue jeans, and tennis shoes. The police also knew - thanks to the work of a loyal bank customer who followed the robber as he left the crime scene - that the suspect was driving a green Ford Mustang that was last seen traveling on LaGrange Road.

After hearing a police radio dispatch about the bank robbery, George Stewart, a Jefferson County police officer who was patrolling in the area, began driving down LaGrange Road looking for the green Mustang. Officer Stewart also learned from the dispatch that the suspect had discarded his nylon jacket, and that the red dye pack had exploded. As he was driving, Officer Stewart noticed a man standing at a bus stop, on the opposite side of the road, who generally matched the description of the bank robber. The person at the bus stop was an African-American male of medium build who, like the bank robber, was wearing a blue baseball cap and blue jeans. Officer Stewart also noticed that the man was unwilling to make eye contact with him. Suspecting that the man might be the bank robber, Officer Stewart drove to the next intersection, turned around, and entered a church parking lot behind the bus stop.

Officer Stewart then approached the man from behind, greeted him, explained that he was investigating a bank robbery, and asked if he could see identification. As the man took his wallet from his pants pocket and removed his driver's license from the wallet, Officer Stewart noticed that there were red dye stains on his fingertips, on his pants, and around his pockets. The man tendered his wallet, but Officer Stewart never took possession of the wallet or driver's license, even briefly; rather, Officer Stewart asked the man to remove his identification from the wallet, and then viewed the driver's license as the man held it out.

Upon seeing the red dye stains on the man's hands and clothing, Officer Stewart called for backup. Shortly thereafter, two other officers arrived at the scene. One of the other officers, Robert Flynn, observed a bulge in the man's sock. Concerned that the bulge might be a weapon, Officer Flynn lifted the man's pant leg and discovered a roll of money in the man's sock amounting to approximately $2,000. Officer Stewart then arrested the man, defendant Jessie Waldon.

Subsequently, Officer Flynn located a green Ford Mustang across the street from the bus stop, in an apartment complex parking lot. The license plates on the Mustang matched the plates that had been recorded by a witness at the scene of the crime. The Mustang was registered in the name of Louis Simmons. Later that same day, Waldon made a telephone call from jail to Simmons and asked Simmons to report that the Mustang had been stolen. Simmons refused, and, instead, informed the police he had received the telephone call from Waldon.

A federal grand jury charged Waldon with bank robbery in violation of 18 U.S.C. §2113(a). Prior to trial, Waldon moved to suppress all evidence discovered after Officer Stewart approached him at the bus stop. A Magistrate Judge recommended that the motion be denied, and the district court followed this recommendation. The case then went to trial before a jury. During the trial, Waldon requested the district court to instruct the jury that it could choose to convict him of the lesser offense of bank larceny, a violation of 18 U.S.C. §2113(b), instead of bank robbery. The district court denied this motion, and the jury began its deliberations on the bank robbery charge. After the first day of deliberations had ended, two jurors were leaving the courthouse to return home when they happened to observe Waldon, in handcuffs and shackles, as he was being placed into a police vehicle. The next day, Waldon moved for a mistrial. The district court denied this motion, and the jury subsequently convicted Waldon of the bank robbery charge.

The district court sentenced Waldon to serve seventy months of incarceration followed by a three-year period of supervised release, and to pay restitution of $1,390. In computing Waldon's sentence, the district court included a two level enhancement for obstruction of justice, pursuant to Sentencing Guideline §3C1.1, based on Waldon's attempt to persuade Simmons to report the green Mustang as stolen. The district court also added an additional three criminal history points to Waldon's sentence, pursuant to Sentencing Guideline §4A1.1(f), based on Waldon's earlier conviction for five counts of bank robbery in August of 1989.

ANALYSIS

A. Motion to Suppress.

Waldon argues that the district court erred when it adopted the Magistrate Judge's recommendation and denied his motion to suppress the evidence that Officer Stewart discovered during his encounter with Waldon at the bus stop. This Court reviews the district court's factual findings in a suppression hearing for clear error and reviews the district court's conclusions of law de novo. United States v. Leake, 95 F.3d 409, 416 (6th Cir. 1996). Furthermore, this Court reviews de novo the district court's determination as to whether certain facts establish a seizure or detention in violation of the Fourth Amendment. United States v. Buchanon, 72 F.3d 1217, 1223 (6th Cir. 1995). "[A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." Ornelas v. United States, 517 U.S. 690, 699 (1996).

This Court has explained that there are three types of permissible encounters between the police and citizens: "(1) the consensual encounter, which may be initiated without any objective level of suspicion; (2) the investigative detention, which, if non-consensual, must be supported by a reasonable, articulable suspicion of criminal activity; and (3) the arrest, valid only if supported by probable cause." United States v. Avery, 137 F.3d 343, 352 (6th Cir. 1997) (citations omitted). In this case, Waldon argues that his encounter with Officer Stewart was an investigative detention from the moment that Officer Stewart first approached him at the bus stop. Waldon thus contends that, unless Officer Stewart can articulate a reasonable suspicion of criminal activity, any evidence seized during and after this encounter must be suppressed.

The primary basis for Waldon's assertion that his interaction with Officer Stewart was, from the start, an investigative detention and not a consensual encounter is that Officer Stewart suspected him of wrongdoing even before their interaction began. Essentially, Waldon suggests that it is the nature of the police officer's suspicions, rather than the nature of the interaction between the officer and the citizen, that defines the character of the encounter. This is simply wrong. We have held that law enforcement officers may approach an individual and ask general questions without having any reasonable suspicion of criminal activity, so long as the officers refrain from the type of intimidating behavior that would lead a reasonable person to believe that the person was not free to leave. See United States v. Peters 194 F.3d 692, 698 (6th Cir. 1999) ...