USA. v. McMutuary

Decision Date21 June 2000
Docket NumberNos. 98-1150,s. 98-1150
Citation217 F.3d 477
Parties(7th Cir. 2000) United States of America, Plaintiff-Appellee, v. Brian K. McMutuary and Dante A. Grier, Defendants-Appellants. & 98-1151
CourtU.S. Court of Appeals — Seventh Circuit

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 CR 25--Elaine E. Bucklo, Judge. [Copyrighted Material Omitted] Before Fairchild, Manion and Kanne, Circuit Judges.

Kanne, Circuit Judge.

Brian McMutuary, Dante Grier and Steven Brown participated in the armed robbery of Southwest Financial Bank in Chicago. A superseding indictment charged each with conspiracy to commit armed bank robbery, armed bank robbery and use of a firearm in connection with a crime of violence. McMutuary also was charged with one count of perjury. Brown entered a plea of guilty on all counts of the original indictment (which contained the same charges with respect to Brown as the superseding indictment) pursuant to a written plea agreement in which he agreed to provide assistance to the government. In considering Brown's sentence, the district court departed downward because of the substantial assistance provided to the government by Brown and because of his family circumstances and sentenced Brown to a period of one year home confinement followed by a period of probation. After Brown pleaded guilty, a jury convicted McMutuary and Grier on all counts of the superseding indictment. The district court sentenced McMutuary to 195 months in prison and Grier to 138 months in prison.

On appeal, Grier argues that the district court erred by denying his motion to dismiss the indictment for prejudicial pre-indictment delay. McMutuary and Grier assert that the district court erred in refusing to consider a downward departure from their sentencing ranges based on a perceived unjustified disparity between their sentences and the sentence imposed on Brown. We reject Grier's argument regarding the pre- indictment delay, and although we agree that an unjustified disparity existed between the sentence imposed on Brown and the sentences imposed on McMutuary and Grier, we find no error in the district court's refusal to consider this disparity in the computation of McMutuary's and Grier's sentences. Accordingly, we affirm the decisions of the district court.

I. History

On February 18, 1992, Brown entered Southwest Financial Bank, where McMutuary worked as a coin and currency teller and presented a note to the bank's vault custodian demanding to be shown the location of the bank's safe deposit boxes. To ensure the bank took his demand seriously, Brown showed the custodian a handgun, which he had placed in the waistband of his pants. The custodian led Brown to the vault where McMutuary was waiting. Brown then pulled the gun from his waistband and instructed the custodian and McMutuary to fill a duffle bag with money. Once the bag was filled with money, Brown told McMutuary to bind the custodian with tape. To make it appear that McMutuary was not involved in the robbery, Brown did the same to McMutuary before exiting the bank.

Events before and after the robbery clearly established that McMutuary, Grier and Brown acted in concert in robbing the bank. On the day before the robbery, Grier approached Brown and inquired about his interest in participating in a bank robbery. Grier explained that he and McMutuary intended to rob the bank where McMutuary worked, and McMutuary's participation in the scheme would facilitate the robbery. Grier would simply enter the bank, and McMutuary would fill his bag with money. Based on Grier's assurances regarding the manner in which the plan would be carried out, Brown agreed to participate in the robbery by acting as the getaway driver.

On the day of the robbery, Brown and Grier parked McMutuary's car across the street from the bank and waited for McMutuary to contact them. After receiving two pages on his beeper from McMutuary, Grier entered the bank. He quickly returned, informing Brown that a security guard deterred him from following through with the plan. A few minutes later, Brown entered the bank and once he was satisfied that the security guard was not at his post, presented a demand note to the vault custodian. Brown left the bank upon completion of the robbery and placed the money in the trunk of McMutuary's car, and Grier and Brown drove off. Two days later, McMutuary, Brown and Grier met at a nearby hotel and split the money.

During the investigation conducted by the Federal Bureau of Investigation, local authorities and a federal grand jury, McMutuary and Grier told conflicting stories regarding their involvement in the robbery. Eventually, the two recanted portions of their stories. Based in part on the testimony of McMutuary and Grier and their interviews with authorities, a federal grand jury returned an indictment charging McMutuary and Brown with conspiracy to commit armed bank robbery in violation of 18 U.S.C. sec. 371, armed bank robbery in violation of 18 U.S.C. sec. 2113(a) and (d) and use of a firearm in connection with a crime of violence in violation of 18 U.S.C. sec. 924(c). Additionally, McMutuary was indicted on a single charge of perjury. A superseding indictment was subsequently returned by the grand jury charging McMutuary and Brown with the same crimes and also charging Grier with conspiracy to commit armed robbery, armed robbery and use of a firearm in connection with a crime of violence.

Brown entered a plea of guilty on all counts of the original indictment pursuant to a written plea agreement in which he agreed to cooperate with the government. McMutuary and Grier proceeded to trial after the district court denied Grier's motion to dismiss the indictment based on a claim of prejudicial pre-indictment delay. The jury convicted both McMutuary and Grier on all counts.

A straightforward application of the United States Sentencing Guidelines to Brown's conviction placed Brown in a sentencing range of 117 to 131 months--57 to 71 months for the robbery and conspiracy charges, combined with a consecutive 60-month minimum mandatory sentence for the violation of sec. 924(c). In exchange for Brown's cooperation, the government specified in the plea agreement that at the time of Brown's sentencing, it would file a motion pursuant to U.S.S.G. sec. 5K1.1, requesting a downward departure from the applicable Guidelines range and the statutory minimum sentence to a term of imprisonment one-third lower than the combined term required by the Guidelines for the conspiracy and armed robbery charges and the additional term required by his plea of guilty to the sec. 924(c) charge.

Brown moved for an additional downward departure based on extraordinary family circumstances. At his sentencing hearing, members of Brown's family testified in support of his claim that he was needed at home to care for his elderly and ill parents and his eleven-year-old niece. Although the government opposed Brown's motion, the government nevertheless moved for the downward departure as agreed in Brown's plea agreement. Upon consideration of the motions made by both Brown and the government, the district court departed downward fourteen offense levels and sentenced Brown to twelve months home detention followed by a period of probation. In imposing that sentence, the court cited both Brown's cooperation with the government and his family circumstances as grounds for the departure, but did not specifically assign either ground to any aspect of the departure.

Prior to sentencing, McMutuary and Grier moved for downward departures based on a perceived disparity between Brown's sentence and the sentences called for under their own Guidelines ranges. The district court denied this motion, reasoning that "the only way [the court] could grant your motion . . . would be to say that I granted an improper departure [with respect to Brown], and I do not believe that I did." Although the court rejected McMutuary's and Grier's requests for downward departures, the district court sentenced them to the lowest sentences available under the Guidelines for the conspiracy and armed robbery offenses combined with the required consecutive sixty-month sentence for the violation of sec. 924(c). The district court sentenced Grier to a term of 138 months in prison. Because of an enhancement for his perjury conviction, McMutuary received a term of imprisonment of 195 months. Grier now appeals the denial of the motion to dismiss the indictment based on prejudicial pre-indictment delay, and McMutuary and Grier both appeal the sentences imposed on them by the district court.

II. Analysis
A. Pre-indictment Delay

Grier was first named as a defendant in the superseding indictment returned by the grand jury on February 11, 1997--nearly five years after the robbery. Grier claims that the government's delay in prosecuting him caused him actual and substantial prejudice by severely hampering his ability to defend himself against the charges contained in the superseding indictment. Grier's claim of actual and substantial prejudice is predicated upon his assertion that he was unable to present the testimony of a material witness who died during the period of the government's delay. Furthermore, Grier submits that the prejudice he suffered was not outweighed by the government's proffered justification for its delay. Accordingly, Grier contends that the district court erred in denying his motion to dismiss the indictment based on pre-indictment delay. We review a district court's decision to deny a motion to dismiss an indictment for prosecutorial delay for an abuse of discretion. See United States v. Spears, 159 F.3d 1081, 1084 (7th Cir. 1998); United States v. Pardue, 134 F.3d 1316, 1319 (7th Cir. 1998).

A defendant's primary safeguard against unreasonable prosecutorial delay is derived from...

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