8 F.3d 1552 (11th Cir. 1993), 91-8859, United States v. Thomas

Docket Nº:91-8859, 91-8885.
Citation:8 F.3d 1552
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David Milton THOMAS, Lisa Reese, William Bide Shelton, and Terry Wayne Giddeons, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Johnny REESE, Defendant-Appellant.
Case Date:November 22, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1552

8 F.3d 1552 (11th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

David Milton THOMAS, Lisa Reese, William Bide Shelton, and

Terry Wayne Giddeons, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee,

v.

Johnny REESE, Defendant-Appellant.

Nos. 91-8859, 91-8885.

United States Court of Appeals, Eleventh Circuit

November 22, 1993

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[Copyrighted Material Omitted]

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John R. Francisco, Macon, GA, for Thomas.

Randall Russell, Macon, GA, for Reese.

Christina Hunt, Macon, GA, for Giddeons.

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Floyd M. Buford, Jr., Buford & Buford, Macon, GA, for Johnny Reese.

Gregory Burr Macaulay, Washington, DC, for William Bide Shelton.

G.F. Peterman, III, Asst. U.S. Atty., Macon, GA, for U.S.

Appeals from the United States District Court for the Middle District of Georgia.

Before KRAVITCH and BLACK, Circuit Judges, and DYER, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Appellants Johnny Reese, Lisa Reese, William Bide Shelton, David Milton Thomas and Terry Wayne Giddeons appeal their convictions under the Hobbs Act, 18 U.S.C. § 1951. Giddeons and Shelton also appeal their sentences. 1 The convictions arose out of an alleged scheme by appellants to rob a bank and to dynamite the sheriff's office in Danielsville, Georgia. Appellants raise a variety of issues, including the sufficiency of the evidence, deficiencies in the jury instructions, prosecutorial misconduct and error in calculating their sentences. For the reasons stated below, we reverse the convictions of Johnny Reese and Lisa Reese, and affirm the convictions and sentences of Giddeons, Thomas and Shelton.

I.

On March 4, 1991, at approximately 1:00 a.m., Thomas and Giddeons visited the home of Tina Bryant and her husband Tim. 2 Thomas and Giddeons revealed to the Bryants that they planned to rob the Bank of Danielsville on March 7. They stated that Thomas, Giddeons, Shelton and a fourth unidentified individual were involved in the conspiracy. One of the participants would throw dynamite into the sheriff's office to prevent a response to the bank alarm, which was connected to the sheriff's office, while the others, using guns Thomas and Giddeons planned to steal, would commit the robbery. The get-away would be accomplished in Giddeons' car. A few hours later, Thomas and Giddeons returned to the Bryants' house and again discussed the scheme.

Tina Bryant went to the sheriff's office in Danielsville and told the authorities of her conversations with Thomas and Giddeons. The next day, Bryant met with Federal Bureau of Investigation (FBI) and other law enforcement officials and agreed to tape-record conversations concerning the planned robbery.

On March 5, Shelton, Johnny Reese, Lisa Reese, Tina Colston and Colston's child, drove into Danielsville in Giddeons' car. The car broke down in the center of town, behind the hardware store and near the Bank of Danielsville. Lisa Reese, Colston and Colston's child went into the bank for approximately three minutes. As they were leaving, Shelton briefly entered the bank and then ushered them out. The group of five then walked to the nearby Golden Pantry convenience store, where Bryant worked. Bryant asked Shelton if the plan to rob the bank was true. Shelton stated that it was and he discussed details of the plan with her, in the presence of the others. That evening the Reeses left Danielsville to return to their home in Woodstock, Georgia.

On March 6, Bryant had two further conversations with Thomas and one with Shelton, in which the planned bank robbery again was discussed. Appellants were arrested later that evening. No physical evidence resulted from searches of Shelton's residence and Giddeons' father's home, where Giddeons and Thomas were staying.

Six defendants--Colston, Johnny Reese, Lisa Reese, Giddeons, Thomas and Shelton--were indicted on a single count of conspiracy to rob a federally insured bank in violation of the Hobbs Act. Colston and Shelton were granted a separate trial. At the first trial, all the defendants, Lisa Reese, Johnny Reese, Thomas and Giddeons, were found guilty. At the second, Colston was acquitted and Shelton was convicted. This appeal followed.

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II.

The claim of insufficient evidence is raised by Johnny Reese, Lisa Reese, Thomas and Shelton. The sufficiency of the evidence is a question of law that is reviewed de novo. United States v. Kelly, 888 F.2d 732, 739 (11th Cir.1989). In reviewing this claim we examine the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). "It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt ... [as a] jury is free to choose among reasonable constructions of the evidence." United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). 3 The reversal of a conviction for insufficient evidence is warranted only if no reasonable jury could find proof of guilt beyond a reasonable doubt. United States v. Jones, 913 F.2d 1552, 1557 (11th Cir.1990). Nevertheless, there must be sufficient evidence to support all necessary elements of the crime. We noted in Jones that:

[t]o support a conviction for conspiracy, the government must prove ... that two or more persons agreed to commit a crime, that the defendant knew of the conspiratorial goal, and that he voluntarily participated in helping to accomplish that goal.

Id. (citation omitted). Keeping in mind the standard of review for claims of insufficient evidence and the elements that must be proven for conspiracy we examine appellants' individual claims.

Johnny Reese

The evidence introduced at trial against Johnny Reese is insufficient to support his conviction. 4 The case presented against Johnny Reese amounted to no more than a demonstration of "mere presence" with those involved in the conspiracy. Proof of association with the conspirators is one factor that can be considered as evidence of a defendant's participation in a conspiracy. United States v. Garate-Vergara, 942 F.2d 1543, 1547 (11th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1212, 117 L.Ed.2d 451 (1992). Presence with conspirators alone, however, or close association with them, is not by itself sufficient proof of participation in a conspiracy. Id.; United States v. Vera, 701 F.2d 1349, 1357 (11th Cir.1983).

The government's best case against Johnny Reese is as follows: On March 5, Johnny Reese emerged from Giddeons' car along with Lisa Reese, Colston, Colston's child and Shelton in downtown Danielsville, near the bank. 5 The car apparently had broken down. Johnny Reese stood in front of the hardware store while Lisa Reese and Colston entered the Bank of Danielsville. Shelton subsequently went into the bank as well. When they emerged from the bank, the group, joined by Johnny, talked amongst themselves as Lisa Reese appeared to be writing something down. Johnny then walked with the others to the Golden Pantry. Bryant testified that the group entered the store and Shelton discussed the bank robbery with her. She testified that Johnny Reese was present while Shelton disclosed the plan. 6 The conversation

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was mainly between Shelton, Colston and Bryant. 7 Johnny Reese's limited contribution to the conversation in no way reflected participation or acquiescence in the planned robbery. The only reference to Johnny Reese occurred toward the end of the conversation, and reflected the fact that, until that point, Bryant was unaware of Johnny Reese's identity. 8 Further, Bryant testified that Johnny Reese was never identified as a participant in the conspiracy during any of the conversations she had with the conspirators. 9 The government makes much of the fact that while in the Golden Pantry, Johnny Reese did not object to Shelton's statements concerning the robbery scheme. As Johnny Reese was not identified as a participant, however, his failure to object carries little weight.

On March 6, Bryant had two conversations with Thomas, one at approximately 2 p.m. and another at approximately 7:30 p.m. In these conversations, Thomas told Bryant that Johnny and Lisa Reese had returned to Woodstock on the preceding evening. 10 Later that night, Bryant went to Shelton's home and spoke with him. Mention again was made of Johnny Reese. 11 The government

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contends that the implication from these conversations is that Johnny Reese attempted to withdraw from the conspiracy. The government argues that based on this legally ineffective withdrawal, ineffective as it occurred after the commission of an overt act in furtherance of the conspiracy, it can be inferred that Johnny Reese originally was a participant in the conspiracy. An examination of the conversations, however, reveals that the inference that Johnny Reese "backed out" of the conspiracy came from questions posed by Bryant, and not from statements made by Thomas or Shelton. In her testimony at trial, Bryant stated that she assumed that Johnny Reese was a participant although none of the other conspirators ever directly stated that he was a part of the plan. This unconfirmed assumption is not sufficient to sustain the conviction of Johnny Reese. The most that can be drawn from the comments of Shelton and Thomas made during the conversations with Bryant is that they had an expectation or a hope that Johnny Reese would participate in the planned robbery. It cannot be inferred that Johnny Reese, at any point, joined the agreement to rob the bank.

While the evidence presented by the government against Johnny Reese would...

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