U.S. v. Allen, s. 85-1725

• Decision Date: 07 May 1986
• Docket Number: 85-1773,Nos. 85-1725,s. 85-1725
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Helen ALLEN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael GUZMAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James ALLEN, Defendant-Appellant. , and 85-1776.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1395

797 F.2d 1395

UNITED STATES of America, Plaintiff-Appellee, v. Helen ALLEN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Michael GUZMAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James ALLEN, Defendant-Appellant.

Nos. 85-1725, 85-1773, and 85-1776.

United States Court of Appeals Seventh Circuit.

Argued Dec. 9, 1985.

Decided May 7, 1986.

Michael B. Mann, Zavislak & Mann, Ltd., Oakbrook Terr., Ill., Sheldon Nagelberg, William H. Theis, Chicago, Ill., for defendant-appellant.

James M. Conway, Asst. U.S. Atty., (Anton R. Valukas-USA), Chicago, Ill., for plaintiff-appellee.

Before BAUER, CUDAHY and FLAUM, Circuit Judges.

BAUER, Circuit Judge.

This case consolidates the appeals of three defendants, James Allen, Michael Guzman, and Helen Allen, who were convicted of various criminal charges arising from their participation in an armed bank robbery. James Allen pleaded guilty to four charges but contends that his sentence is improper. Michael Guzman contends that evidence was improperly admitted at his joint trial with Helen Allen. Helen Allen contends that the government did not present sufficient evidence to convict her, that she should have been granted a mistrial during the jury's deliberations, and that she was denied her sixth amendment right to confront witnesses against her at her sentencing hearing. We reject all of the defendants' claims and affirm the judgment of the district court.

I.

James Allen, Helen Allen, Michael Guzman, and Anthony Genovese were all involved in planning and preparing to rob the Thornridge State Bank in South Holland, Illinois. James Allen, Guzman, and Genovese executed the robbery as planned, successfully removing $45,305 from the bank. To their surprise, however, a red dye/tear gas canister that had been placed with the money by a bank employee exploded in their car as they fled the scene. The car filled with red smoke and tear gas, and in the ensuing confusion James Allen drove past the bank again. The three men then were pursued by police officers just arriving on the scene. Gunfire was exchanged during the chase, and James Allen managed to elude the officers. The three men abandoned the car, which they had stolen earlier for use in the robbery, on the far south side of Chicago and were later picked up by Helen Allen and her son Larry at a nearby tavern.

Helen Allen then drove to the house of another son, Tommy Allen, in Indiana. At Tommy Allen's house, the three men discarded their red-stained clothing and divided several hundred dollars of the bank's money among themselves. Later, James Allen and Genovese separately returned to Helen Allen's house in Illinois while Guzman stayed at Tommy Allen's. At Helen Allen's house, James Allen and Genovese attempted to wash the red stain out of the bank's money using soap, bleaches, and coffee grounds. ¹

The next day, James Allen gave Genovese his share of the robbery proceeds and a gun. Helen Allen gave Genovese some shells for the gun and returned his wallet, which she had held for safekeeping while he participated in the robbery. Genovese gave Helen Allen $1,000. Later, Helen Allen drove Genovese to a train platform where he caught a train to Chicago.

On October 15, 1984 police in Richmond, Kentucky pulled over a car being driven by James Allen for speeding and weaving between lanes. The police asked him to perform a field sobriety test, which he did, and after failing the test he was arrested. Guzman was seated in the front passenger seat of the car, and the police also asked him to perform a sobriety test after observing him fumbling with his jacket and with something on the floor of the car. After Guzman took and failed the test, the police arrested him for public intoxication. At the time of their arrests, James Allen had $330 and Guzman had $204 in robbery proceeds on their persons. Police also found additional bank money throughout the car as well as an M-1 carbine, marijuana, and various drug paraphenalia.

Helen Allen was subsequently arrested and indicted for her role in the robbery. In January 1985, three months after her arrest, she spent some seven hours in a bar exchanging stained robbery money for quarters and clean bills and playing poker machines. The following day the bartender and her boss noticed that the bills given to them by Helen Allen smelled like bleach that some were whitish, some pink, and that some had been trimmed at the edges.

On October 19, 1985 Chicago police arrested Genovese for creating a disturbance in a bar. At the time of his arrest, Genovese was carrying the gun he had used in the robbery and several hundred dollars in red-stained bills. Some of the bills had been trimmed at the edges. Police subsequently searched Genovese's hotel room and found numerous rubber gloves and rags and a bottle of spot remover.

After his arrest and indictment James Allen pleaded guilty to conspiracy to commit bank robbery, bank robbery, possession of a firearm by a convicted felon, and interstate transportation of a stolen motor vehicle. He was sentenced to five years imprisonment on the conspiracy charge, twenty-five years imprisonment on the robbery charge, two years imprisonment on the firearms charge, and five years imprisonment on the auto theft charge, each sentence to run consecutively. Helen Allen was tried by a jury and convicted of conspiracy to commit bank robbery and bank robbery. She was sentenced to five years imprisonment on the conspiracy charge to be followed by five years probation for the robbery charge. Michael Guzman was tried jointly with Helen Allen and convicted by the jury of the same two charges and the additional charge of possession of a firearm by a convicted felon. Guzman was sentenced to five years imprisonment on the conspiracy charge, twenty-five years imprisonment on the robbery charge, and two years imprisonment on the firearms charge, each sentence to run consecutively. Genovese entered a plea agreement with the U.S. Attorney and the Cook County State's Attorney in exchange for his testimony at Helen Allen and Guzman's trial. Pursuant to the agreement, Genovese was sentenced to twelve years imprisonment on the federal charges and the State's Attorney agreed to a concurrent twelve year sentence for a pending attempted murder charge and other state charges.

II.

Helen Allen's first argument on appeal is that the evidence at trial was insufficient to convict her of conspiracy to commit bank robbery and bank robbery. Helen Allen contends that she did not knowingly and intentionally participate in the conspiracy and did not participate in the actual robbery. In support of these contentions Helen Allen argues only that the testimony against her at trial by Genovese is not to be believed because of his motives for lying, and that without this testimony the government has not met its burden of proof.

In reviewing a claim of insufficiency of evidence in a criminal case, we determine only whether, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See United States v. Moya, 721 F.2d 606, 610 (7th Cir.1983), cert. denied, 456 U.S. 1037, 104 S.Ct. 1312, 79 L.Ed.2d 709 (1984). In this case, the evidence showed that prior to the robbery Helen Allen helped case the bank twice, discussed the escape route with the other defendants, provided guns and surgical gloves to be used in committing the robbery, participated in a discussion of the proposed robbery with James Allen, Guzman and Genovese in her home, and drove them to the stolen car immediately before the robbery. After James Allen, Guzman and Genovese robbed the bank and eventually eluded the police, James Allen telephoned Helen Allen and told her they were in trouble. She picked them up at a bar and drove them to Tommy Allen's house in Indiana. Later, at her own home, she helped wash the stained money and accepted a cut of the robbery proceeds. She drove Genovese to a train station, enabling him to flee to Chicago, and supplied him with bullets and dye remover while he was in Chicago through one of her daughters. Finally, she disposed of some of the stained bills at a bar after her arrest, repeatedly changing stained $20 bills for clean $10 bills and $10 worth of quarters.

Viewing these facts in the light most favorable to the government, we find that the jury had sufficient evidence to conclude that Helen Allen knowingly participated in the conspiracy to rob and the armed robbery of the Thornridge State Bank. The facts discussed above clearly show a knowing participation in the conspiracy, and, under 18 U.S.C. Sec. 2, Helen Allen is liable as a principal for the armed robbery even though she did not execute the robbery herself because she aided and abetted the robbery. See United States v. Beck, 615 F.2d 441, 448-49 (7th Cir.1980). The fact that the government's main witness against her, Genovese, had possible motives for lying about her participation in the robbery, a fact that her attorney brought out during cross-examination of Genovese, affects only Genovese's credibility at trial. Absent extraordinary circumstances, this is a matter solely for the jury to evaluate. United States v. Noble, 754 F.2d 1324, 1332 (7th Cir.1985). Helen Allen testified and contradicted Genovese's version of the conspiracy and robbery, but the jury chose to disbelieve her testimony and credit Genovese's. We find nothing extraordinary in that; as we stated in United States v. Moya, 721 F.2d 606 (7th Cir.1983), cert. denied, 465 U.S. 1037, 104 S.Ct. 1312, 79 L.Ed.2d 709 (1984), "[i]n every criminal trial, each party asks the trier of fact to believe its witnesses, to weigh its evidence more heavily than the opposition's evidence, and to draw certain inferences from the basic facts in evidence in order to accept its hypothesis regarding the events in dispute." We are...