U.S. v. McCarty

• Decision Date: 25 October 1994
• Docket Number: No. 93-7757,93-7757
• Citation: 36 F.3d 1349
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul Martin McCARTY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1349

36 F.3d 1349

UNITED STATES of America, Plaintiff-Appellee, v. Paul Martin McCARTY, Defendant-Appellant.

No. 93-7757

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Oct. 25, 1994.

Cynthia A. Stewart, Jackson, MS (court-appointed), for appellant.

Victoria May, Richard T. Starrett, G.W. Bond, Asst. U.S. Attys., George Phillips, U.S. Atty., Jackson, MS, for appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before DUHE, WIENER and STEWART, Circuit Judges.

PER CURIAM:

Paul Martin McCarty was convicted by jury of two counts of bank robbery and one count of use of a firearm during a bank robbery. He was sentenced to serve a 175-month concurrent term of imprisonment on each of the bank robbery counts, and to serve a consecutive term of 60 months on the firearm offense, for a total of 235 months imprisonment. McCarty appeals his conviction and sentence, asserting as error the

following issues: (1) admission of Rule 404(b) evidence, (2) sufficiency of evidence to prove element of "force and violence, or intimidation", (3) denial of motion to suppress, (4) admission of search-warrant affidavit into evidence, (5) cumulative error, and (6) sentencing errors and double jeopardy. Finding no reversible error, we affirm.

FACTS

On December 23, 1992, a man walked into the Sunburst Bank in Jackson, Mississippi. The man wore a black wig and fake beard, tennis shoes, coveralls, and black gloves. He carried a black bag which had a zippered opening. He walked up to Robin Dunaway, a teller, handed her a note and indicated that she was to give him money from her two cash drawers. He did not speak to her, but did use gestures to wave her past the security bait bills and the dye pack. The man put the money into the black bag, retrieved the note, and left the bank. A subsequent audit disclosed that $13,816 was missing from Dunaway's cash drawer.

A few days later, on December 28, 1992, a stolen rental car was located. It was a 1992 Ford Thunderbird. Whoever stole the car apparently had a duplicate set of keys, because the rental agency still had its keys when the car was stolen, and there was no damage to the recovered vehicle and no evidence of forced entry. In its trunk were the following: a black wig, fake beard and mustache; blue coveralls; tennis shoes; a .38 caliber revolver; a white clasp envelope, approximately 8 X 10 inches large; and .38 caliber practice rounds were found in the envelope and in the pockets of the coveralls. The white envelope was submitted for fingerprint analysis. When checked, the rental records for the Thunderbird revealed that the only local person who had recently rented the vehicle before it was stolen was Paul McCarty. McCarty had rented the vehicle on November 23, 1992, and returned it on November 30, 1992.

On December 29, 1992, Paul M. McCarty purchased a blue 1993 Chevrolet pick-up truck for $18,272.01. He was allowed $1,500 on a trade in, and he paid a down payment of $7,295.01 via a cashier's check.

On February 11, 1993, a blue pick-up truck turned onto a dead-end street. The driver turned into the driveway of a residence, triggering motion detection lighting. The driver then turned off the truck's headlights, backed out of the driveway to turn the truck around, and parked the truck. Two women watched from the window of their home as the man, who had turned into their driveway, got out of the truck and walked to a nearby street, toward the Magnolia Federal Bank. About 15 to 20 minutes later, he returned to the truck and drove away.

The next day, a man entered and robbed the Magnolia Federal Bank. He was wearing a black wig and fake beard, tennis shoes, and coveralls. He carried a black bag with a zippered opening. The man handed a typewritten note to the teller and, when she "froze", he displayed a .45 caliber firearm. This time, he demanded cash from three tellers. The man left the bank on foot and got on a bicycle. A bank customer chased him. At some point, the man stopped and searched his bag. In the process, he emptied some of the money out onto the ground. The customer who followed him hid between cars, heard gun fire--approximately two shots--and assumed that the bank robber had retrieved a firearm from the black bag and fired it. The bank robber got away. However, approximately $8,000 of the stolen money was recovered from the ground.

Meanwhile, the fingerprints found on the white envelope were identified as those of McCarty. On February 24, 1993, a warrant issued to arrest him, and to search his apartment and his blue Chevrolet truck. The affidavit in support of the warrants stated much of the above facts. McCarty was arrested and the searches were performed on February 25, 1993. Among the items seized were two sets of keys found in the blue Chevy truck.

Paul Martin McCarty was charged in an indictment with (count 1) robbery of the Sunburst Bank on December 23, 1992, in violation of 18 U.S.C. Sec. 2113(a); (count 2) robbery of the Magnolia Federal Bank and jeopardizing the lives of bank employees by the use of a dangerous weapon on February 12 While incarcerated on these charges, McCarty shared a cell block with Alan Lucero. Lucero notified his attorney that McCarty had threatened certain witnesses and had described how he committed the bank robberies. Lucero testified at trial. According to Lucero, McCarty said he had taken the .38 and .45 caliber guns, as well as a .22 caliber gun, during two residential burglaries. Lucero also testified that McCarty said he had rented a Lincoln car and duplicated the keys, and had later stolen the Lincoln and used it for the Magnolia Federal Bank robbery. Based upon this information from Lucero, law enforcement officers located the stolen Lincoln and found in its trunk the .45 caliber semi-automatic gun, a .22 caliber gun, a typewriter and typewriter ribbon, a wig and fake beard, coveralls, and tennis shoes. One set of the keys that were found in McCarty's blue truck fit the stolen Lincoln.

1993, in violation of 18 U.S.C. Secs. 2113(a) and (d); (count 3) use of a firearm during a bank robbery on February 12, 1993, in violation of 18 U.S.C. Sec. 924(c)(1); (count 4) money laundering; and (count 5) forfeiture.

After trial, the jury convicted him of counts 1, 2, and 3 but found him not guilty of count 4. The Government dismissed count 5. McCarty was sentenced to a total of 235 months imprisonment. McCarty appeals his conviction and sentences.

DISCUSSION

ADMISSION OF RULE 404(B) EVIDENCE

McCarty asserts that the district court improperly allowed admission of three types of extrinsic evidence. First, the court permitted testimony about two burglaries which Lucero said McCarty described. Second, the court permitted introduction of a .22 caliber pistol which had no connection to any of the charged offenses. Third, the court permitted Lucero to testify that McCarty had threatened certain witnesses.

The district court's decision to admit extrinsic offense evidence under Federal Rule of Evidence 404(b) will not be disturbed absent a clear showing of abuse of discretion. United States v. Bermea, 30 F.3d 1539 (5th Cir.1994), citing United States v. Bruno, 809 F.2d 1097, 1106 (5th Cir.), cert. denied, 481 U.S. 1057, 107 S.Ct. 2198, 95 L.Ed.2d 853 (1987). Federal Rule of Evidence 404(b) provides as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, ...

We review alleged violations of Rule 404(b) under the two-pronged test of United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). That test requires that we verify (1) that the evidence of extraneous conduct is relevant to an issue other than a defendant's character, and (2) that it is not substantially outweighed by its undue prejudice and is otherwise admissible under Rule 403. ¹ Bermea, citing Beechum.

In order to determine relevance under the first prong, we must address the threshold question of whether the government offered sufficient proof demonstrating that the defendant committed the alleged extrinsic offense. U.S. v. Ridlehuber, 11 F.3d 516, 522 (5th Cir.1993), citing Beechum, 582 F.2d at 911. If the proof is insufficient, the judge must exclude the evidence because it is irrelevant. Ridlehuber, 11 F.3d at 523, quoting Beechum, 582 F.2d at 913. Rule 104(b) supplies the standard for determining the admissibility of extrinsic offense evidence: "the preliminary fact can be decided by the judge against the proponent only where the jury could not reasonably find the preliminary fact to exist." Id. The second prong of the Beechum analysis inquires whether Rule 403 has been satisfied, and we We shall first examine the challenged testimony about the burglaries. Vicky Phillips testified that her three-story Rankin County house looks like a two-story house from the front because two stories are built into a hillside so that it is actually three stories in the back. She stated that her house had been burglarized on November 30, 1992, and that the .45 caliber and .22 caliber guns, recovered from the Lincoln, belonged to her and her husband. Phillips verified that the serial numbers of the .45 and the .22 matched those from her records. Barry Wood testified that he had a single-story house in Rankin County that was burglarized on November 30, 1992, and that the .38 caliber Charter Arms revolver, recovered from the Thunderbird, belonged to him. However, on cross-examination, he admitted that the only reason he identified the revolver as his own is that he had been informed that the revolver was traced back to the store where he purchased it. Neither witness knew who had...