U.S. v. Mayberry

• Decision Date: 21 August 2008
• Docket Number: No. 06-2239.,No. 06-2413.,06-2239.,06-2413.
• Citation: 540 F.3d 506
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shawn MAYBERRY (06-2239); James Peoples (06-2413), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

540 F.3d 506

UNITED STATES of America, Plaintiff-Appellee, v. Shawn MAYBERRY (06-2239); James Peoples (06-2413), Defendants-Appellants.

No. 06-2239.

No. 06-2413.

United States Court of Appeals, Sixth Circuit.

Argued: July 22, 2008.

Decided and Filed: August 21, 2008.

ARGUED: Michael A. Faraone, Lansing, Michigan, Jolene J. Weiner-Vatter, Law Offices, Grand Rapids, Michigan, for Appellants. Timothy P. VerHey, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Michael A. Faraone, Lansing, Michigan, Jolene J. Weiner-Vatter, Law Offices, Grand Rapids, Michigan, for Appellants. Phillip J. Green, Christopher M. O'Connor, Assistant United States Attorneys, Grand Rapids, Michigan, for Appellee. James Carnell Peoples, Terre Haute, Indiana, pro se.

Before: BOGGS, Chief Judge; MOORE and CLAY, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Defendant James Peoples appeals his conviction as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), alleging that he was deprived of his Fifth Amendment rights when the prosecution introduced evidence demonstrating that he possessed firearms during multiple armed robberies, that insufficient evidence exists to support his conviction, and that he was denied his Sixth Amendment right to confront a witness. Defendant Shawn Mayberry appeals his 110-month sentence on similar charges, claiming that the district judge unconstitutionally made findings of fact at sentencing, and that his sentence is unreasonable. As none of these claims have merit, we AFFIRM both Defendants' convictions and sentences.

BACKGROUND

A. The Robberies

Although Defendants James Peoples and Shawn Mayberry were charged only as felons in possession of a firearm, not with armed robbery, both Defendants allegedly participated in a string of such robberies prior to their December 24, 2005 arrest. On October 30, 2005, the night of the first robbery, three men wearing dark clothes and ski masks entered a D & W Food Store in Grand Rapids, Michigan at just before midnight. At least two of these men were armed, and both of the armed men were described by witnesses as African-American. Additionally, one of the armed robbers was carrying an assault rifle with a wooden stock and distinctive scratches in the wood. During the two minutes the robbers spent in the store, approximately $5000 was stolen.

On November 19, 2005, four armed men wearing masks entered a different D & W Food Store at just before midnight.¹ One of these men was carrying an assault rifle just like the one used in the first robbery. In addition to stealing money, the robber carrying the assault rifle attempted to steal several cartons of Newport and Kool brand cigarettes, but the cartons he grabbed were empty displays. After robbing the store, the men fled in a black, four-door pick-up truck which fit the description of a truck which had been rented by Defendant Peoples' cousin Lashenica Armstrong.

On December 1, 2005, Grand Rapids Police Officer Connie Moore was directed to meet with Laura Hammond and her boyfriend Mario Fagairo, who had previously contacted the police department regarding an assault rifle which he had found. Officer Moore met the couple in a public park, where she confiscated the weapon and learned that Mario had discovered it at the home of his sister Robin— Defendant Peoples' girlfriend and the mother of Peoples' children. According to Mario, he and Hammond were visiting his sister's house when they discovered the gun leaning against a wall. Mario wrapped the gun in a jacket and immediately called the police to retrieve it.

On December 10, 2005, Officer Moore interviewed Robin Fagairo regarding the assault rifle which was reportedly found in her home. The next day, Peoples called Mario, admitted that the gun belonged to him, and expressed concern that police would discover his prints on it. Peoples also asked Mario to help him concoct an innocent explanation for why his prints would be on the firearm, but Mario refused to help Peoples fabricate such a story for the police.

A government weapons expert later identified the confiscated assault rifle as an AK-47, the same type of weapon used in the two grocery store robberies.

B. Defendants' Arrest

On December 14, 2005, an informant named Jon Bowman contacted the Grand Rapids police and informed them that Peoples and Mayberry were involved in the two grocery store robberies. According to Bowman, Peoples and Mayberry approached him around "Christmas time" 2005 and asked if he would like to participate in their next robbery. (Peoples J.A 40)² Peoples also told Bowman that he had used his AK-47 during a third, aborted robbery attempt, and that potential future victims included a person named "T.C." who was involved in check forging and drug dealing. (Peoples J.A. 220) Police learned from Bowman that the only thing preventing Peoples and Mayberry from committing another robbery was the fact that they liked to use rental cars as get-away vehicles, and they did not yet have the money to rent another car. As a result, the police provided Bowman with the money to allow Peoples and Mayberry to rent another car, and set up surveillance at the local Enterprise car rental station.

On December 23, 2005, police observed Peoples' cousin Lashenica Armstrong arriving at the Enterprise rental station in a white car along with Mayberry. The two rented a grey Nissan Altima, and they left together with both vehicles, eventually both stopping at the same apartment complex, placing a large white bag in the rental car, and entering one of the apartments. At some point while the vehicle was parked at this apartment complex, police secretly placed a GPS tracking device on the rental car.

Around midnight, Mayberry left in the rental car and drove to a nearby house, where an officer observed Peoples climbing into the passenger side of the vehicle. After stopping briefly at a nearby Meijer store, Mayberry and Peoples drove to Bowman's home, and Bowman joined the two of them in the rental car. The vehicle then proceeded toward the home of "T.C.," the check forger and potential victim. Fearing that Defendants were about to rob T.C., police decided to stop the vehicle and arrest the occupants. In a search of the vehicle made incident to this arrest, police found several dark-colored knit caps, and two handguns in the trunk of the car.

Subsequent to his arrest, Peoples was interrogated by police. Although he admitted to touching the AK-47 which police had previously confiscated, he initially claimed that he thought that the gun was a toy, and had picked it up and moved it aside when he was visiting his girlfriend Robin. Later, however, Peoples contradicted this claim, stating that he recognized the gun as one that "had been used in some armed robberies," but he claimed that the gun had been used by Shawn Mayberry. (Peoples J.A. 226) Despite also claiming that he did not participate in any of the previous robberies, Peoples did identify Mayberry in photographs of the masked participants in the grocery store robberies. He claimed that the other three robbers went by the names "O," "Meth" and "Black." (Peoples J.A. 231) Peoples also admitted that he smokes Newport cigarettes, the same brand of cigarettes which one of the robbers attempted to steal during the November 19, 2005 robbery.

After the interrogation, police briefly left Peoples alone in the interrogation room, but kept a tape recorder running. During this time, Peoples muttered under his breath "I'm hit." (Peoples J.A. 233)

C. Peoples' Trial

Despite his alleged involvement in multiple armed robberies, Peoples was only charged with two counts of being a felon in possession of a firearm; the first concerning the two handguns found in the trunk of the rental car at the time of his arrest, and the second concerning his possession of the confiscated AK-47. Peoples pled not guilty to both charges.

During Peoples' trial, the government presented significant evidence linking Peoples to the armed robberies in order to show that he possessed a firearm during his participation in these robberies. Peoples did not object to this evidence, but did request that a limiting instruction be given to the jury. During final instructions, the judge did, in fact, give the following instruction:

You heard testimony during this trial that the defendant may have committed other crimes than the ones charged in the indictment. If you found and if you find that he did commit earlier crimes, you may consider this only as it relates to the government's contention that this defendant intended to carry the firearms that are at issue in Counts 1 and 2 of the indictment. You may not consider this evidence for any other purpose, remembering that this defendant is on trial only for being a felon in possession of firearms and not for any other acts. Do not return a guilty verdict unless the government proves those crimes beyond a reasonable doubt.

(Peoples J.A. 283-84)

Also during Peoples' trial, the prosecution called Bowman to testify. Although Bowman had previously testified to a grand jury regarding Peoples and Mayberry's plans to conduct additional robberies, he claimed that he was unable to remember numerous facts which he had recently revealed to the grand jury. As a result, the prosecution read excerpts of Bowman's prior sworn statements to the grand jury, and asked Bowman if he remembered making those statements, but Bowman continued to claim poor recollection. Despite counsel's objection to the introduction of these prior, sworn statements, the judge overruled the objection, and allowed the statements to be admitted as substantive evidence.

D. Mayberry's Hearing

Unlike Peoples, Mayberry was charged with just one count of being a felon in possession of a firearm. He pled guilty to this charge. At sentencing, the judge found by a preponderance of the evidence that Mayberry had been involved in at least one armed...