462 F.3d 1124 (9th Cir. 2006), 04-50431, United States v. Washington

Docket Nº:04-50431, 04-50485.
Citation:462 F.3d 1124
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Eric WASHINGTON, Defendant-Appellant. United States of America, Plaintiff-Appellant, v. Eric Washington, Defendant-Appellee.
Case Date:September 06, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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462 F.3d 1124 (9th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Eric WASHINGTON, Defendant-Appellant.

United States of America, Plaintiff-Appellant,

v.

Eric Washington, Defendant-Appellee.

Nos. 04-50431, 04-50485.

United States Court of Appeals, Ninth Circuit.

Sept. 6, 2006

Argued and Submitted Oct. 17, 2005.

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Michael J. Treman, Santa Barbara, CA, for the appellant/cross-appellee.

Elizabeth R. Yang, Assistant United States Attorney, Organized Crime and Terrorism Section, Los Angeles, CA, for the appellee/cross-appellant.

Appeal from the United States District Court for the Central District of California; William J. Rea, District Judge, Presiding. D.C. Nos. CR-02-01215-WJR-1, CR-02-01215-WJR.

Before PROCTER HUG, JR., HARRY PREGERSON, and RICHARD R. CLIFTON, Circuit Judges.

HUG, Circuit Judge.

On June 5, 2003, a jury convicted Eric Washington of violating 18 U.S.C. § 371 (conspiracy), 18 U.S.C. §§ 2113(a), (d) (armed bank robbery), and 18 U.S.C. § 924(c) (using, carrying, or possessing firearm in furtherance of crime of violence). On appeal, Washington contends that he is entitled to have his convictions reversed because: 1) the district court improperly admitted into evidence statements obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); 2) Washington was prejudiced when the judge admitted hearsay into evidence; and 3) Washington was prejudiced as a result of prosecutorial misconduct when the Government, in front of the jury, referred to his custodial status and to the judge's ruling on a suppression motion.

On August 23, 2004, the district court sentenced Washington to seventy-seven months imprisonment for the conspiracy and armed bank robbery convictions. Washington appeals his sentence, claiming that it violated his Sixth Amendment rights. At the same time, the court also sentenced Washington to a five-year consecutive sentence for use of a firearm in violation of 18 U.S.C. § 924(c). The Government cross-appeals this part of the sentence, claiming that Washington should have been sentenced to seven years because there was brandishing of a firearm in furtherance of the armed bank robbery.

We affirm the convictions, vacate the sentences, and remand for resentencing.

Background

The Robbery

On August 1, 2002, Eric Washington met with his co-conspirators, including Andrew Carter, Derrick Lindsey O'Neal and Joe Earl Alexander, to plan an armed bank robbery. According to the trial testimony, the conspirators discussed who would carry guns. The conspirators then drove to the United California Bank in Commerce, California. Three of the conspirators entered and robbed the bank while Washington acted as a lookout. Janett Guizar, a bank employee, testified that one of the robbers pointed a gun at her and ordered her to open a teller drawer. There also was testimony that one of the robbers pointed a gun at two other bank employees and ordered them to give him the money from their teller drawers. After the robbery, Special Agent Peter Taglioretti of the FBI obtained a videotape from the bank's surveillance cameras and developed multiple photographs of the robbers. Taglioretti contacted the bank employees and presented them with a six-pack of photospreads of the robbers. Guizar identified

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Washington from a photospread as the lobby lookout. Another witness also identified Washington from the photospread. At trial, Guizar again identified Washington.

Washington's Post-Arrest Interview

On November 7, 2002, local police arrested Washington for the robbery of United California Bank. Agent Taglioretti and FBI Special Agent Roberto J. Basteris met Washington upon his arrival at the FBI Westwood office. Taglioretti asked Washington a series of background questions, including his name, date of birth, address, medical condition, gang moniker, and gang affiliation.

Agent Taglioretti then explained to Washington the charges pending against him. Agent Taglioretti also advised Washington about the opportunity to cooperate. Washington responded by asking the agents about the source of their information. When Taglioretti told Washington that there were several people cooperating, Washington asked for more information. Taglioretti then read Washington his Miranda rights. Washington responded by saying that he was willing to listen to the agents without an attorney present. Taglioretti wrote "agreed to listen w/o atty present" on an advisement form that Washington then signed and initialed.

Taglioretti then showed Washington photographs of individuals in custody for the bank robbery and explained the information that law enforcement had about the robbery. Washington stated "I can't do no time but I know I am." Taglioretti proceeded to show Washington bank surveillance photographs, including a photograph of a robber standing outside the bank doors. When viewing one of these photographs, Washington stated: "Anybody can see that's me in the picture." However, when Taglioretti asked Washington if he wanted to talk about his role in the robbery, Washington responded by saying "[t]hat's not me in the picture." Taglioretti commented that the photograph clearly showed Washington, and Washington then grinned and nodded his head in the affirmative.

Washington's Motion to Suppress

On February 24, 2003, Washington moved to suppress his post-arrest statements. On May 19, 2003, the district court held a suppression hearing. Washington testified at that hearing. He claimed that he did not say anything to the FBI about the photographs. He also gave conflicting testimony about whether he made any statements after he was advised of his Miranda rights. Washington testified that he could not clearly remember the interview because he was under the influence of alcohol and "chronic" at the time of the interview. However, during his testimony, Washington acknowledged that he agreed to listen to the agents after they read him his Miranda rights and that he signed a paper which said "agreed to listen without an attorney present."

Taglioretti testified that, before meeting with Washington, he already had been informed of Washington's name, gang moniker, height, weight, and other background information, but needed to ask Washington this information to ensure that law enforcement's information was accurate. He also testified that he did not show Washington the photos until after Washington had agreed to listen to the agents without an attorney present.

The court denied the motion to suppress. The court reasoned that the pre- Miranda questions were routine booking questions, that the post- Miranda statements were voluntary, and that Washington had agreed to listen to the agents without an attorney present.

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The Trial

Testimony of the Cooperating Witnesses

During the trial, the Government called two cooperating witnesses, Derrick Lindsey O'Neal and Joe Earl Alexander. Both witnesses had entered into cooperating plea agreements with the Government. Before entering into the cooperating plea agreements, they met with Government representatives and provided information to them, including identifying Washington as one of the bank robbers. At trial, both witnesses testified that Washington had taken part in the robbery with them.

In the course of cross-examining Alexander and O'Neal, defense counsel asked questions suggesting that, because of their plea agreements with the Government, the two men had colluded with each other to make up stories implicating Washington in the bank robbery.

In closing argument, defense counsel argued that the witnesses tried to make their stories mesh. In particular, defense counsel argued that O'Neal changed his story after the plea agreement as a result of discussions with Alexander in the van on the way to the courthouse to enter his plea.

Testimony of Agent Taglioretti

At trial, Government counsel asked Taglioretti, "did O'Neal ever identify who, along with himself, robbed the bank in Commerce?" and "Who did he identify?" Defense counsel objected on the basis of hearsay. Government counsel responded that the statements were prior consistent statements and therefore not hearsay. The court overruled the objection. In addition, when Taglioretti testified about his interviews with Alexander, Government counsel asked Taglioretti whether Alexander had identified who had robbed the bank with him. Defense counsel again objected on hearsay grounds and the judge again overruled the objection. Taglioretti then testified that Alexander had identified Washington as one of the robbers.

During Agent Taglioretti's testimony, defense counsel asked him "And about what time was it that you finally read [Washington] any Miranda rights?" The Government objected, stating: "Objection, your Honor. This is a matter we've already litigated, and the Court's already denied the defendants' suppression motion." Defense counsel then responded:

Your Honor, I'm moving for a mistrial. There's absolutely no reason for this lawyer to stand up in this courtroom and make those kind of representations in this court in front of the jury. It's a clear violation of the Court's rules and its ethics. The fact that this Court ruled on the voluntariness of my client's statement does not take away from the issue of allowing these ladies and gentlemen to make a determination about the voluntariness of it and the accurateness of it. Move for mistrial.

The court denied the motion for a mistrial, but instructed the jury to disregard the...

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