U.S. v. Bates

• Decision Date: 12 January 2009
• Docket Number: No. 06-2460.,No. 06-2458.,06-2458.,06-2460.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert Steven BATES (06-2458) and Walter John Bates (06-2460), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

552 F.3d 472

UNITED STATES of America, Plaintiff-Appellee, v. Albert Steven BATES (06-2458) and Walter John Bates (06-2460), Defendants-Appellants.

No. 06-2458.

No. 06-2460.

United States Court of Appeals, Sixth Circuit.

Argued: December 10, 2008.

Decided and Filed: January 12, 2009.

ARGUED: Martin J. Beres, Law Offices Of Martin J. Beres, Clinton Township, Michigan, Harold Z. Gurewitz, Gurewitz & Raben, Detroit, Michigan, for Appellants. Daniel R. Hurley, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Martin J. Beres, Law Offices Of Martin J. Beres, Clinton Township, Michigan, Harold Z. Gurewitz, Gurewitz & Raben, Detroit, Michigan, for Appellants. Daniel R. Hurley, Assistant United States ATTORNEY, Detroit, Michigan, for Appellee.

Before: MARTIN and McKEAGUE, Circuit Judges; COLLIER, Chief District Judge.^*

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Albert Steven Bates and Walter John Bates appeal their convictions for bank robbery and conspiracy to commit bank robbery. Because we find that no reversible error occurred at trial and that both sentences were imposed in a procedurally reasonable manner, we AFFIRM.

I.

In early 2002, Walter Bates was in severe financial distress. He had recently been suspended from his job with the Detroit Police and he was mired in debt, in large part because of an affinity for gambling. Searching for a way out, he formed a plan: using his knowledge of police practices he would rob banks in ways that minimized his chances of being caught. However, he needed help to put this plan into motion. To this end, he recruited his brother, Albert Bates, and his longtime friend, Kevin Foster-Bey.¹

Walter's primary role was to plan the robberies. He identified easy targets — banks in low-traffic areas close to highways and police district lines. From his time with the Detroit Police Walter knew that the time it took to relay information across district lines could help them evade detection. Walter Bates also developed the modus operandi for the robberies. The "inside man" (usually Foster-Bey) would wear clothes that concealed his features and put "crazy-glue" on his hands to avoid leaving fingerprints. He would then enter the bank, hand the teller a "demand" note, remove any dye packs hidden in the bills he received, and exit within two minutes.² The inside man would then meet the getaway car (usually driven by Albert Bates) on a side street and make a quick escape. A second car (usually driven by Walter Bates) would follow closely behind to obscure the first car's license plate and run interference if the cars encountered pursuit.

Following this plan, the trio robbed seven banks in August and September 2002. During this time, Foster-Bey became increasingly frustrated with his share of the proceeds, and he decided to rob banks on the side with an acquaintance named Leroy Plummer. Plummer, however, soon proved to be a less than able partner: on September 18, the pair attempted to rob a bank together, but Plummer failed to remove a dye pack from the bills he received. As a result, Plummer and Foster-Bey had to literally launder the money afterwards. On the heels of this experience, Foster-Bey resumed working with Albert and Walter Bates. Together, they committed another seven robberies in September and October.

All the while, local police and the FBI were closing in on the men. Surveillance photos proved to be of better quality than Walter Bates believed, and they enabled police not only to identify Albert Bates and Foster-Bey but also to tie the robberies together based on certain distinctive articles of clothing the pair wore during different robberies. Eyewitness accounts from bank tellers and those living near the banks also helped tie the robberies together, both by identifying the three men involved and the vehicles used — a burgundy Chevy Impala owned by Albert Bates and a burnt orange Jeep Liberty owned by Walter Bates. The saga took its final turn when Leroy Plummer was caught trying to steal an ATM with Foster-Bey (who managed to escape). Plummer agreed to cooperate against Foster-Bey, who in turn agreed to cooperate against Albert and Walter Bates. Police subsequently recovered the Bates' getaway vehicles, both of which contained "crazy glue" stains in places Foster-Bey said he had spilled the glue while preparing for robberies. Police also recovered phone records showing extensive communication among the three men during the string of robberies. The phone contact between the men strongly correlated with the dates and times of the robberies.

On November 7, Albert Bates was indicted for four counts of bank robbery. On August 14, 2003, a superceding indictment added Kevin Foster-Bey as a defendant and a number of additional counts of bank robbery. On November 26, 2003, a second superceding indictment added Walter Bates as a defendant and charged him and Albert Bates with conspiracy to commit bank robbery and thirteen counts of bank robbery. On September 13, 2005, a third superceding indictment added Dante Townsend as a defendant to the conspiracy charge. It also reduced the total counts of bank robbery to seven, and the substantive counts against Walter Bates to one.³ Townsend and Foster-Bey pleaded guilty prior to trial, and Foster-Bey testified for the Government at trial.

Albert and Walter Bates were tried jointly in the United States District Court for the Eastern District of Michigan. The jury found Albert Bates guilty of conspiracy to commit bank robbery and five of the seven bank robbery charges against him (Third Superceding Indictment counts 1, 3-5, 7-8). It found Walter Bates guilty of conspiracy to commit bank robbery and of the single count of bank robbery against him (Third Superceding Indictment counts 1 and 8). The district court sentenced Albert Bates to 60 months in prison and sentenced Walter Bates to 70 months. Both now appeal.

II.

Collectively, Albert and Walter Bates make seven arguments on appeal: (1) the district court erred in denying Albert Bates's motion to sever their trial; (2) the district court improperly conducted voir dire; (3) the district court erred in allowing Leroy Plummer to claim a blanket Fifth Amendment privilege; (4) the district court erred in limiting cross-examination of Kevin Foster-Bey; (5) the district court improperly excluded certain statements made by Plummer and Foster-Bey as hearsay; (6) that evidence of Walter Bates's financial condition should have been excluded as against Albert Bates under Rule 404(b) of the Federal Rules of Evidence; and (7) that the district court failed to comply with the Sentencing Guidelines in sentencing Walter Bates.

Two of these issues require discussion in detail: (1) whether the district court erred in failing to force Leroy Plummer to take the stand to assert his Fifth Amendment privilege; and (2) whether the district court failed to comply with the Sentencing Guidelines in sentencing Walter Bates.

A. Leroy Plummer's Blanket Assertion of his Fifth Amendment Privilege

The longstanding rule of this circuit is that a defendant must take the stand and answer individualized questions in order to invoke his Fifth Amendment privilege. See In re Morganroth, 718 F.2d 161, 167 (6th Cir.1983) ("A blanket assertion of the privilege by a witness is not sufficient to meet the reasonable cause requirement and the privilege cannot be claimed in advance of the questions. The privilege must be asserted by a witness with respect to particular questions, and in each instance, the court must determine the propriety of the refusal to testify."). This presumption against blanket assertions of Fifth Amendment privilege is premised on the common sense notion that a judge must know what the witness believes is incriminating in order to evaluate whether the witness invokes the privilege with "reasonable cause." As this Court has since recognized, however, when a defendant has a clear entitlement to claim the privilege, forcing the defendant to take the stand is "futile" and thus unnecessary. United States v. Highgate, 521 F.3d 590, 594 (6th Cir.2008); Davis v. Straub, 430 F.3d 281, 288 n. 4 (6th Cir.2005); United States v. Medina, 992 F.2d 573, 586-87 (6th Cir.1993). In such a case, the reason behind the rule does not apply because the court already knows that "reasonable cause" to invoke the privilege exists.

Such was the case here. When defense counsel sought to put Leroy Plummer on the stand to impeach the testimony of Kevin Foster-Bey, Plummer was charged with robbing a bank with Foster-Bey. In order to lay a foundation for his proposed testimony, Plummer would have to admit his association with Foster-Bey and that he had extensively discussed robbing banks with him. These admissions tend to incriminate Plummer, see Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), and he thus had a valid Fifth Amendment privilege. And Plummer's lawyer made it clear that Plummer intended to invoke his privilege. Indeed, the reason the district court did not force Plummer to take the stand was because his privilege and his intent to invoke his privilege were so clear. Under these circumstances, it was not error for the district court to fail to force Plummer to take the stand. It would have been pointless to do so.

B. The Procedural Reasonableness of Walter Bates's Sentence

The second issue requiring extended discussion is the procedural reasonableness of Walter Bates's sentence. We review the district court's sentencing decisions for abuse of discretion. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). This review involves a dual inquiry into both procedural and substantive reasonableness. In the context of procedural reasonableness, a district court abuses its discretion when it commits a "significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines...