USA. v. Beckett

• Decision Date: 01 February 2000
• Docket Number: No. 99-1135,99-1135
• Citation: 208 F.3d 140
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA, v. JAMES CARROLL BECKETT, Appellant Submitted Under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 140

208 F.3d 140 (3rd Cir. 2000)

UNITED STATES OF AMERICA, v. JAMES CARROLL BECKETT, Appellant

No. 99-1135

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted Under Third Circuit LAR 34.1(a) February 1, 2000

Filed March 21, 2000

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 91-cr-00121-01) District Judge: Honorable Thomas N. O'Neill, Jr. [Copyrighted Material Omitted]

Michael P. Gottlieb, Esq. Vangrossi & Recchuiti 319 Swede Street Norristown, PA 19401 Attorney for Appellant

Christopher R. Hall, Esq. Suite 1250 Office of United States Attorney 615 Chestnut Street Philadelphia, PA 19106 Attorney for Appellee

Before: BEFORE: MANSMANN, NYGAARD, and RENDELL, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellant James C. Beckett was found guilty of two counts each of robbery and armed robbery, in violation of 18 U.S.C. SS 2113(a) & (d), and then sentenced by the District Court. Because Beckett's trial counsel failed to file a timely notice of appeal on his behalf, the District Court agreed to re-sentence him so he could file a notice of appeal.

Becket now argues that the District Court erred by (1) determining that he was a career offender; (2) failing to provide him with his rights of allocution; (3) imposing restitution without determining his ability to pay, and delegating the restitution issue to the Bureau of Corrections to be dealt with at a later date; (4) sentencing him on both charges of armed bank robbery under 18 U.S.C. S 2113(d), and robbery under 18 U.S.C. S 2113(a); (5) permitting ineffective assistance of counsel and allowing reversible error to go uncorrected, when the Assistant United States Attorney referred to Beckett as a "repeat offender" at trial and Beckett's counsel did not object; (6) giving the jury an erroneous and confusing instruction; (7) violating his speedy trial rights; (8) allowing the guilty verdicts on the charges of robbery and bank robbery to stand when they were not supported by the evidence; and (9) allowing the guilty verdict to 18 U.S.C. S 2113(d) to stand when it was not supported by the evidence.

The government admits that the District Court erred by failing to make specific findings of fact concerning Beckett's ability to pay restitution, and by sentencing Beckett for both his convictions for armed bank robbery, and the lesser included offense of bank robbery. We will reverse and remand for factual findings on the question of Beckett's ability to pay restitution. We will vacate the sentence imposed for the lesser included offenses of bank robbery, charged in Counts One and Three of indictment of March 26, 1991. We will affirm the District Court as to all other issues.

I. FACTS

In June, 1990, a man entered the Home Unity Bank branch located in Bensalem, Pennsylvania. He placed a box on the counter before teller Bea Ludwig. This box had an antenna and a lighted button on it. A co-worker, Cassandra Waters, saw the man place the box on the counter. She described him as wearing glasses, and an out of style, uncoordinated suit that caught her attention. She estimated that he was between 5'6" and 5'7" tall. Another bank employee, Anne McCauley, noticed that the man was wearing surgical gloves.

The man handed Ludwig a note that stated:

Stay calm. Say nothing. Do not look around nor at me and nothing will happen. Highly-sophisticated remote control bomb receiver facing you. I have a transmitter in my pocket with a gun. Put all of the money in a brown envelope with this note. No red dye. Do not be a fool. Hurry. Wait two minutes after we leave before moving.

Ludwig gave the man all of the money in her drawer, $1,093. The man left the box on the counter, and exited the bank. Ludwig then told a co-worker that she had been robbed, and began to cry. Ludwig and the other people in the bank retreated into the vault, and then to a neighboring building to escape what they thought was a bomb.

The Bomb Squad used a robot to remove the box from the Home Unity Bank. The robot carried the suspected bomb outside to the parking lot, and broke it apart with a single shotgun shell. The police then gathered all the debris from the bomb as evidence, including a piece of antenna.

Cassandra Waters later picked Beckett's photograph out of a photographic line-up, and also identified Beckett as the robber from the witness stand at trial.

At the time of this robbery, Beckett lived with his wife, Patricia Fuller, and a son, at the Creekside Apartments on Knights Road in Bensalem, a short distance from the Home Unity Branch that was robbed. The day after the robbery Beckett paid $475 in cash for a 1980 blue Ford Granada.

Three months later, a man wearing glasses, a tie, and a trench coat entered the Bensalem branch of Fidelity Bank. He approached teller Maria Sanchez. She described him as approximately 5'4" tall. The man handed Sanchez a note and an envelope. The note instructed her not to look around. It explained that there was a bomb which had been activated. It warned her not to place a dye pack with the money. Sanchez gave the man all the money she had, including a night deposit she had been working on, totaling $9,988.

Coincidently, a local resident was out for a walk near the Fidelity Bank and saw a man wearing a trench coat run by. The man was trying to get his right arm out of the coat without using his left hand, as though he was holding something with his left hand. The man then got into a blue car, spun his wheels, and drove away.

When the police arrived, a teller reported that the robber had used a bomb. A detective noticed a shoe box with wrapping paper around it near one of the teller windows. The detective evacuated the customers and employees, sealed off the area, and called the Philadelphia Bomb Disposal Unit. The Bomb Squad used a robot to remove the box and transport it to a remote area of the parking lot. It then shot the box with compressed air and water. Detectives collected the debris from the hoax bomb, including gift wrapping paper and the business section from the September 9, 1990 edition of the Philadelphia Inquirer. A detective located gift wrapping paper that was identical to that used in the hoax bomb from the Fidelity Bank robbery in a Pathmark store just opposite Beckett's Creekside apartment.

On the day of the Fidelity Bank robbery, Beckett traded in his blue Granada and paid $3,320 in cash for a 1986 Buick Electra. An employee from the used car dealership that sold Beckett the Buick found a glove in the back seat of the Ford Granada that Beckett had traded in. An FBI agent later recovered a brown bag from behind the front seat that contained a broken pair of eyeglasses.

Also on the same day, Beckett paid $1,300 to rent a new apartment at 10103 Northeast Avenue in Philadelphia. The next day, he paid $210.94 in cash for a TV. On the following day, he paid $2,314.97 in cash for furniture, a VCR, a stereo, and telephones. These expenditures totaled $7,145.91.

His girlfriend, Debra McCole, testified that she dated Beckett during the summer and fall of 1990. Beckett told her that he had rented the apartment at 10103 Northeast Avenue for her, and that he was going to furnish it for her, her son, and the baby she was expecting. He took her to see it after he bought his new car. He also gave McCole between $50 and $100. McCole identified the gift wrapping paper located by detectives at the Pathmark store, and identical to that used in the hoax bomb, as the same gift wrapping paper she had used for her son's birthday on September 30, 1990, the day before the Fidelity Bank robbery.

Beckett's wife, Patricia Fuller, told an FBI agent that she had never seen any pay stubs for Beckett around the house, and had not seen him with any cash. In the spring of 1989, Beckett told her that he was paying the rent. In fact, he had not, and they were almost evicted. Fuller took responsibility for the rent, telephone, and utilities in the summer of 1989. Beckett did not provide money towards these bills, although he did promise Fuller he would move her and her son to a new apartment at 10103 Northeast Avenue.

Police went to Beckett's new 10103 Northeast Avenue address on October 8, 1990. They found a sock containing $60 behind a vent on the second floor. Later that day, police went to Beckett's old apartment at Creekside and recovered a trench coat from the living room closet that belonged to him.

Detective Robert Schutter interviewed Beckett at his Creekside apartment. Beckett stated that he worked for a carpet installer named Joe Regan, earned $80 a day, was paid by check, but had not worked for two or three weeks. Detective Schutter found small pieces of a broken silver metallic antenna in a closet, and a September 9, 1990 edition of the Philadelphia Inquirer that had only one page from the Business Section. Joe Regan later testified that Beckett had worked for him last in September of 1989, not September of 1990 as Beckett had represented to the police.

Although Beckett was arrested by local authorities for the Fidelity Bank robbery, the evidence was presented to a federal grand jury, which returned a four-count indictment against Beckett. Counts One and Two charged robbery and armed robbery of the Home Unity Savings Bank in Bensalem, Pennsylvania. Counts Three and Four charged robbery and armed robbery of the Fidelity Bank in Bensalem, Pennsylvania. The armed robbery charges in Counts Two and Four stemmed from Beckett's use of the hoax bombs to secure monies from the tellers. Beckett filed a Motion to Dismiss the Indictment, on the basis of the delay between his state arrest and his federal indictment, which the District Court denied.

At trial, an FBI fingerprint specialist testified that she had identified one of Beckett's fingerprints on the newspaper recovered from the hoax bomb used in the Fidelity Bank robbery.

An FBI bomb expert examined the remnants of the...