U.S. v. Douglas

• Decision Date: 13 May 2008
• Docket Number: Docket No. 06-0581-cr.
• Citation: 525 F.3d 225
• Parties: UNITED STATES of America, Appellee, v. Paul Ryan DOUGLAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

525 F.3d 225

UNITED STATES of America, Appellee, v. Paul Ryan DOUGLAS, Defendant-Appellant.

Docket No. 06-0581-cr.

United States Court of Appeals, Second Circuit.

Argued: October 16, 2007.

Decided: May 13, 2008.

Stephen J. Ritchin, Assistant United States Attorney, New York, NY, (Michael J. Garcia, United States Attorney for the Southern District of New York, Karen B. Konigsberg, Celeste L. Koeleveld, Assistant United States Attorneys, New York, NY, on the brief), for Appellee.

Clinton W. Calhoun, III, White Plains, NY, (Briccetti, Calhoun & Lawrence, White Plains, NY, on the brief), for Defendant-Appellant.

Before: KEARSE and KATZMANN, Circuit Judges, and RAKOFF, District Judge^*.

KEARSE, Circuit Judge:

Defendant Paul Ryan Douglas appeals from an amended judgment, entered in the United States District Court for the Southern District of New York following a jury trial before Colleen McMahon, Judge, convicting him of killing a person in connection with an attempt to enter a bank with intent to commit a crime therein, in violation of 18 U.S.C. §§ 2113(a) and (e), and sentencing him principally to a mandatory term of life imprisonment and ordering him to pay $11,081.44 in restitution. On appeal, Douglas contends principally (1) that, because a § 2113(e) offense may be punished by death, he was entitled to representation by two attorneys, see 18 U.S.C. § 3005, and the district court erred in dismissing one of his two appointed attorneys after the government stated that it would not seek the death penalty; (2) that the government engaged in impermissible discrimination in the use of a peremptory challenge during jury selection; (3) that there were various errors in connection with the eyewitness identification evidence admitted against him; and (4) that evidence obtained in violation of his privilege against self-incrimination should not have been admitted in evidence in the government's rebuttal case. For the reasons that follow, we affirm.

I. BACKGROUND

The present prosecution arose out of an attempted theft from automated teller machines ("ATMs") at a branch of Citibank N.A., located in a building on Central Park Avenue in Yonkers, New York (the "Yonkers ATMs"), during which an ATM technician was killed. Douglas was tried on a two-count superseding indictment that charged him with attempting to enter a bank facility with intent to commit larceny therein, in violation of 18 U.S.C. § 2113(a) (count one), and killing a person in connection with that attempt, in violation of 18 U.S.C. §§ 2113(a) and (e) (count two). We summarize the evidence as to the robbery attempt, as well as the evidence as to Douglas's ensuing flight and statements, in the light most favorable to the government.

A. The Government's Direct Case

In 2004, Citibank ATMs were serviced by Brink's, Inc. ("Brink's"), which periodically replenished the machines with cash. From late 1999 through mid-2002, Douglas was an employee of Brink's. Part of his job had been to fill the Yonkers ATMs with $400,000 to $500,000 in cash on Thursday mornings.

In April 2004, Milton Moran, Jr. ("Moran"), was employed by Brink's as an ATM repair technician. On the morning of Thursday, April 22, 2004, Moran went to the building in which the Yonkers ATMs were located to repair an ATM printer. For such an assignment, Moran normally carried, inter alia, a pouch containing (a) keys to give him access to the backs of the ATMs and (b) the various codes for disabling alarms and for releasing the electronic locks on the backs of the ATMs; as a matter of Brink's policy, he also carried a gun. At 8:54 on that Thursday morning, Moran notified Brink's that he had arrived at the Yonkers ATMs facility; at 9:02 a.m. he notified Brink's that he was about to depart.

At about 10:00 or 10:30 that morning, John Vitetta, who worked in a ground floor office in the building in which the Yonkers ATMs were located, was in the parking lot working on his car when he saw a body being dragged between an SUV and an adjacent Toyota. Thinking the body was a CPR mannequin, Vitetta returned his attention to his car. After hearing a thud and looking up again, he saw feet sticking out of the trunk of the Toyota and saw a man standing behind the open trunk. Realizing that the body he had seen being dragged was not that of a mannequin but that of a person, Vitetta ran into his office and called 911. At trial, Vitetta pointed out Douglas as the man he had seen standing behind the trunk in which the body had just been placed. Vitetta also testified that he had selected the picture of Douglas from a six-picture photographic array shown to him by the police two days after the event.

When the police arrived at the parking lot in response to Vitetta's 911 call, they opened the trunk of the Toyota and found Moran, dead, with duct tape wrapped around his mouth and head. Moran had extensive bruising on the head, along with contusions on his arm and hand that were consistent with defensive wounds. The cause of death was determined to be principally asphyxia due to smothering, along with blunt force trauma to the head and face. The keys and codes that Moran had used to gain access to the back and interior of the ATM machine were missing. And although Moran was wearing a gun holster and carrying a gun permit, his gun was missing.

Marilyn Sarin, employed in the same office as Vitetta, had heard Vitetta calling 911 and describing what he had seen. She had then run into the parking lot and had seen an SUV back swiftly out of a parking spot and speed out of the lot through the marked entrance rather than the exit. Sarin testified at trial that the vehicle was driven by "a heavyset, black male with dark facial hair." (Trial Transcript ("Tr."), at 178.) Although Sarin was unsure whether she would recognize the driver if she saw him again, she testified that when she was shown a six-picture array four days after the incident, see Part II. C. 1. below, she selected the picture of Douglas as the driver.

In addition, upon observing the SUV on the morning of April 22, Sarin wrote down the SUV's license plate number. Records revealed that the vehicle belonged to a woman with whom Douglas was living in Brooklyn. When the SUV was recovered several days later, its contents included a loaded shotgun, a bulletproof vest, a suitcase containing men's clothing and toiletry items, Douglas's social security card, and his then-recently expired Jamaican passport.

Douglas, after exiting the Yonkers ATMs parking lot on April 22, shortly left the New York area by bus and made his way to Florida. There he made statements to his cousin and a close friend of the family, both of whom were called as witnesses by the government.

Douglas told those witnesses that he had planned, in collaboration with Moran, to steal money from ATM machines immediately after the machines received cash infusions. Douglas was to hit Moran on the head and bind his mouth and hands to make it appear that Moran had been a robbery victim. Douglas said he had hit Moran on the head and taped Moran's mouth while they were in the SUV; that the Brink's truck bringing cash to the ATMs did not arrive when expected; and that while he and Moran were waiting, Moran pointed out that the tape on his mouth had come loose and Douglas tightened it. Douglas said he then went to the ATMs to check on whether the cash had been delivered, and when he returned to the SUV, he found Moran unresponsive, and he panicked. He put Moran's body in the trunk of Moran's car and fled in his girlfriend's SUV.

On April 26, Douglas turned himself in to the police in Florida, saying, inter alia, that he had been involved in a robbery attempt in New York in which a man had died.

B. Douglas's Defense

Douglas's defense consisted principally of his own testimony. He admitted that he had made most of the statements to which his cousin and friend testified; but Douglas testified that he had given them a story that he had "made up" (Tr. 569). Douglas testified that he had in fact been at the site of the Yonkers ATMs on the morning in question, had put Moran's body in the trunk of Moran's car, and had left the scene in his girlfriend's SUV. He also admitted that he had gone to Florida and told his cousin and their friend that he and Moran had planned to rob the ATMs together and that Moran had accidentally died. However, Douglas denied that he had said anything about hitting Moran, tying him up, or taping his mouth; he also denied that he had gone to see whether the ATMs' expected cash delivery had arrived or had tightened the tape on Moran's mouth. Douglas testified that in fact Moran had been killed by another man.

Douglas testified that some three months prior to April 22, he encountered a man he had not met before and the man began extorting money from him by threatening him and his family. Douglas — who testified that in Jamaica he had been a policeman for more than six years — never notified the authorities of the extortion (see, e.g., Tr. 612-15); he gave the man money on several occasions (a total of $13,000 (see id. at 752)), indeed draining his bank account (and borrowing on his credit cards and pawning his jewelry) to do so (see id. at 473-74). Douglas described the man as darker-skinned than himself, with dreadlocks or twists in his hair, but testified that he did not know the man's name. However, the man somehow knew, without any input from Douglas, that Douglas had formerly worked at Brink's. On April 20, Douglas agreed to drive the unnamed man to the site of the Yonkers ATMs on the morning of April 22 (see Tr. 482-83), and on April 22 he did so with the unnamed man holding a gun to his neck. Douglas testified that it was this unnamed man who killed Moran.

Douglas testified that after he drove the unnamed man to the Yonkers ATMs location, he drove around the parking lot, then parked for a while, and then exited the lot and parked on the street, adjacent to the lot. Douglas then...