405 F.3d 390 (6th Cir. 2005), 03-3241, United States v. Pugh

Docket Nº:Walter Meade PUGH, Jr. (03-3241) and Tyreese Pugh (03-3243), Defendants-Appellants.
Citation:405 F.3d 390
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:May 03, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 390

405 F.3d 390 (6th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,


Walter Meade PUGH, Jr. (03-3241) and Tyreese Pugh (03-3243), Defendants-Appellants.

Nos. 03-3241, 03-3243.

United States Court of Appeals, Sixth Circuit

May 3, 2005

Argued: June 9, 2004.

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[Copyrighted Material Omitted]

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William K. Fulmer II, Florence, Kentucky, Pierre H. Bergeron, Squire, Sanders & Dempsey, Cincinnati, Ohio, for Appellants.

Wende C. Cross, Cross, Smith & Associates, Cincinnati, Ohio, for Appellee.


William K. Fulmer II, Florence, Kentucky, Pierre H. Bergeron, Scott A. Kane, Squire, Sanders & Dempsey, Cincinnati, Ohio, for Appellants.

Walter M. Pugh, Jr., Atwater, California, pro se.

Before: KEITH and CLAY, Circuit Judges; OBERDORFER, District Judge. [*]


KEITH, Circuit Judge.

Defendants Walter Meade Pugh, Jr. and Tyreese Pugh appeal their convictions related to an armed bank robbery and their sentences entered on February 10, 2003, by the United States District Court for the Southern District of Ohio. For the reasons stated below, we REVERSE the convictions of Walter Pugh, and REVERSE, in part, and AFFIRM, in part, the convictions of Tyreese Pugh. We REMAND this case to the district court for proceedings consistent with this opinion.

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A. Factual Background

At approximately 2:20 p.m. on April 24, 2002, two armed men robbed the First National Bank of Southwestern Ohio ("First National Bank"), located at 2299 Peck Boulevard in Hamilton, Ohio. One robber, wearing a mask and carrying a shotgun, ordered the bank manager to get down on the floor and instructed him not to activate the alarm. At the same time, the other robber, who was unmasked and carried a handgun, jumped over the teller counter and demanded that the tellers empty the cash from their drawers into a trash can liner. The unmasked robber forced a teller into the bank's vault at gunpoint; after taking money from the vault, he instructed her to get on the floor of the vault and shut her inside of it. The robbers exited the bank with approximately $153,189 in unmarked bills. As the robbers were escaping, the bank manager saw them enter a vehicle, which he believed was a late 1980's or early 1990's maroon Oldsmobile. Joint Appendix ("J.A.") at 172. He also indicated that another man was in the back seat. Id.

When the police arrived, the officers secured the bank, interviewed the employees, and retrieved the bank's surveillance camera videotape. Detective James Calhoun of the Hamilton Police Department reviewed the videotape to ascertain descriptions of the robbers. The descriptions of the robbers--one tall, slender black male, wearing dark clothes, a baseball cap, and possessing a long gun, and one shorter black male, wearing a checkered shirt and dark pants--and their vehicle were dispatched to all local patrol units. Id. at 255. Detective Calhoun also lifted a shoe print from the teller counter, but detectives did not dust the area for fingerprints because the men were wearing latex gloves. Id. at 257-59.

The following day, April 25, 2002, Detective Calhoun received information that led him to interview defendant Walter Pugh's sister, Bessie Pew. 1 During the interview, Ms. Pew viewed a picture of the robbers from the bank's surveillance videotape. Upon looking at the picture, Ms. Pew began to cry and said that the picture looked like her brother, Walter Pugh. Ms. Pew then consented to a search of her vehicle, which was a 1988 maroon Oldsmobile Cutlass Cierra. Because she was having car problems and needed him to repair it, Ms. Pew had loaned Walter her Oldsmobile for several days prior to the robbery. Id. at 469. At approximately 3:00 p.m. on the day of the robbery, Walter Pugh, along with his son Tyreese Pugh, returned her vehicle, and Ms. Pew returned Walter's keys to his 1989 Cadillac Deville. During the search of Ms. Pew's Oldsmobile, Detective Calhoun found a partially torn latex glove and a pair of tennis shoes that, in his view, matched the footprint found on the teller counter. 2 Based on a statement given by Ms. Pew, Detective Calhoun obtained an arrest warrant for Walter Pugh. Id. at 267. The police began searching for Walter and Tyreese Pugh.

In attempting to obtain an arrest warrant for Tyreese Pugh, the police officers executed a search warrant at the apartment of Stephanie Luster, Tyreese Pugh's girlfriend. Id. at 268. Stephanie was not present during the time of the search. Id. at 269. In searching for Stephanie, Detective Calhoun interviewed her mother, Shellee

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Luster, who was incarcerated in a local jail. Id. at 519. Shellee indicated that she believed that her daughter was with the Pughs. Id. at 521. Upon being shown a picture taken from the bank's surveillance videotape, Shellee identified Walter and Tyreese Pugh as the bank robbers. Id. at 523.

On May 2, 2002, Walter Pugh's former live-in girlfriend, Shannell Holston, contacted an officer with the Hamilton Police Department. That same evening, she met with Detective Calhoun, Detective James Cifuentes, and others at the Hamilton County Sheriff's Department. Id. at 571. While at the Sheriff's Department, Holston called Walter Pugh and the police recorded the conversation. Id. at 573. Although Walter did not confess to the robbery, he mentioned wanting to launder $100,000. Id. at 575.

Holston also informed the officers of Walter Pugh's whereabouts. Id. After determining the Pughs' location, the detectives and officers formulated a plan to take the Pughs into custody. Id. at 573. Late at night on May 2, 2002, officers conducted a surveillance of the home where Holston believed that the Pughs were located. Id. at 278. The officers sat near the house for two hours and observed several individuals enter and exit the home. Id. at 278-79. The surveillance continued into the early morning of May 3, 2002. Around 2:00 a.m. on May 3, Walter Pugh and two other individuals left the house in a car. Id. at 442. Once the car was a safe distance from the house, the police effected a traffic stop and arrested Walter Pugh. Id. at 243. Upon being questioned, Walter informed the police that Tyreese Pugh was asleep in the upstairs bedroom of the house and that he had a gun. Id. at 444. He explained to the police officers that he did not want Tyreese to get hurt and even provided instructions to the officers on how to safely enter the home. Id.

When the S.W.A.T. team entered the house with a search warrant, the officers went to the upstairs bedroom and found Tyreese Pugh and his girlfriend Stephanie Luster in bed asleep. Id. at 446. Tyreese Pugh was pulled out of bed and had a shotgun beneath his body. Id. Tyreese Pugh was arrested. Id.

B. Procedural History

On May 15, 2002, a federal grand jury for the Southern District of Ohio returned a five-count indictment against Walter and Tyreese Pugh. Count 1 charged both defendants with conspiring with each other to commit armed bank robbery in violation of 18 U.S.C. § 371. Count 2 charged both defendants with aiding and abetting each other in the commission of the bank robbery in violation of 18 U.S.C. §§ 2113(a) & (d) and 18 U.S.C. § 2. Count 3 charged Walter Pugh with the knowing use of a long barreled revolver, during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Count 4 charged Tyreese Pugh with the knowing use of a shotgun, during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Count 5 charged Tyreese Pugh with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). 3

On September 3, 2002, a jury trial commenced against both defendants. During voir dire, defense counsel objected to the Government's use of its peremptory challenges. The Government struck juror twenty-three, a black woman, reasoning

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that she had two brothers in jail for robbery and that she had made a gesture that, the Government argued, displayed a distrust of law enforcement officers. J.A. at 149. Defense counsel objected, stating that many jurors have relatives in jail, and there were only three minority jurors in the pool of forty-one jurors. Id. at 150. The district court noted the objection but allowed the dismissal because the juror's brothers were in jail for robbery. Id.

The Government also used a peremptory challenge to strike juror forty-nine, a black man, and the defense objected because he was the only black man in the jury pool. The Government argued that the juror was a high school dropout, and it was asserting peremptory challenges against all high school dropouts. Id. at 153. Defense counsel stated that, although racially neutral, the decision to exclude high school dropouts has a disparate impact on minorities who have a higher dropout rate. Id. at 155. The district court overruled the objection.

During the trial, the Government presented testimonial evidence from various witnesses. 4 Tyreese Pugh's girlfriend, Stephanie Luster, testified that she was with Walter and Tyreese Pugh on the day of the robbery. Id. at 317-18; 334. She stated that Walter and Tyreese left her and her children at Walter's girlfriend's house for a few hours on April 24, 2002. Id. at 318. When they returned sometime during the afternoon, they instructed Stephanie and Tenikia, Walter's girlfriend, that it was time to leave. Id. at 320. Stephanie and her two children, Tenikia and her child, and Walter and Tyreese left the house; Stephanie claimed that she did not know why they were leaving. Id. at 322. At that time, Walter was wearing jeans and an old T-shirt, and Tyreese was wearing a black shirt and black pants. Id. at 319.

The four adults and three children...

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