U.S. v. Jenkins

• Decision Date: 22 May 1990
• Docket Number: No. 89-8101,89-8101
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eugene JENKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1075

901 F.2d 1075

UNITED STATES of America, Plaintiff-Appellee, v. Eugene JENKINS, Defendant-Appellant.

No. 89-8101.

United States Court of Appeals, Eleventh Circuit.

May 22, 1990.

As Amended May 24, 1990.

James W. Ellison, Burnside, Wall and Daniel, Augusta, Ga., for defendant-appellant.

J. Michael Faulkner, Asst. U.S. Atty., Augusta, Ga., Joseph Douglas Wilson, Atty., DOJ, Appellate Section, Crim.Div., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before TJOFLAT, Chief Judge, and JOHNSON and HATCHETT, Circuit Judges.

JOHNSON, Circuit Judge:

Eugene Jenkins appeals his conviction for bank larceny under 18 U.S.C.A. Sec. 2113(b).

I. STATEMENT OF THE CASE

First Union Bank in Augusta, Georgia employed Eugene Jenkins as a security guard. Prior to January 1, 1988, the bank itself employed all of its security guards. On January 1, First Union executed a contract with a private security company named Sizemore Security. Sizemore offered all of the First Union security guards jobs with Sizemore, but at a lesser hourly salary and with a loss of all previously accrued benefits. Sizemore gave the guards approximately 48 hours to decide whether to accept its offer.

Before the change, First Union employed one guard on the first floor and one on the fourth. After the change, only one first floor guard stood duty and was responsible for all of the duties formerly performed by both guards, including checking a second First Union building next door at about 9:30 p.m. each night. Jenkins had been a fourth floor guard; after changing to Sizemore, Jenkins became a first floor guard. He was not pleased with the change because the Sizemore schedule interfered with his attending school while off duty.

On the night of January 4, 1988, Jenkins was on duty. At 9:30 p.m. the silent alarm connected to First Union went off at the Augusta police department. ¹ Because Officer Givens of the Augusta police department was around the corner, he arrived on the scene one to two minutes later. Upon his arrival, Jenkins met Officer Givens at the side door of the bank, which led into the main lobby. Jenkins told Givens that he was aware that the alarm had gone off and that he had contacted someone from the bank. Officer Givens and Jenkins checked around the bank building, but found nothing amiss. Later that night, Officer Givens received another silent alarm call from First Union. Upon his arrival at the bank the second time, Givens was met by Jenkins and a white male. ²

On the same night, Joe White of the Mosler Company received a call from Jenkins concerning a false alarm at the bank. White monitored all reports of alarms and security systems problems for the bank. When White arrived at the bank between 10:00 and 10:15 p.m., he discovered that the after-hours depository vault was closed but not locked. The vault door opened in response to a single turn of the handle. ³ White called Ann Gilmore, the bank's teller supervisor, and asked her to come and lock the vault. When Gilmore arrived, she and White checked the vault and determined that some of the night deposits were missing. White and Gilmore searched the immediate area, but did not find the missing deposits that were in the bags. There was no evidence of tampering or forced entry. Gilmore locked the vault, but did not alert the police until the following morning.

In the morning, it was discovered that the following items were missing from the depository vault: $25,344.70 in cash, $8,498.99 in checks, and securities totalling a face amount of $101,741.64. The security log indicated that Linda Dunbar of the cleaning crew left the bank at 9:25 p.m., five minutes before the silent alarm sounded.

On January 22, 1988, officers searched Jenkins' residence in Hephzibah, Georgia pursuant to a search warrant. In the attic, officers found a tightly wrapped box containing Christmas decorations. In the bottom of the box were eight aluminum foil-wrapped bundles containing a total of $19,015.00 in cash. In the top drawer of the dresser in the Jenkins' master bedroom, officers found a Citizens and Southern National Bank deposit bag containing $300.00 and three letters from Barclays American Mortgage Corporation indicating that Jenkins was behind in his mortgage payments. ⁴ The officers also recovered ashes and burnt scraps of paper from the fireplace.

Forensic tests conducted on the money and the vault turned up negative for fingerprints. A number of the bills found in Jenkins' home contained writing allegedly made by the customers' employees as they were counting their receipts. Five employees of bank customers stated that writing on the bills could possibly be theirs, but they could not be sure. One employee of a customer positively identified a bill from a tear in the bill. Ink from pens gathered from the various customers was compared with the ink on the bills; an FBI lab employee found similarities between ink in two of the pens and that on six of the bills.

On May 5, 1988, Jenkins was indicted for bank larceny under 18 U.S.C.A. Sec. 2113(b). On September 21, 1988, Jenkins filed a motion to suppress the fruits of the January 22 search on the grounds that the affidavits presented failed to establish probable cause for the search of the house and that the search exceeded the scope of the warrant. A magistrate held a hearing on the suppression motion and, on October 5, 1988, issued a Report and Recommendation recommending that the motion be denied. On October 25, 1988 the district court adopted the magistrate's recommendation and denied the motion.

Trial began on November 15, 1988. During trial, Jenkins renewed his motion to suppress. He also took the stand in his own defense, claiming that the doors from the bank lobby to the main banking area had been left open the night of the theft. He maintained that the money found in the attic belonged to him, but did not explain its origin. Jenkins testified that a customer had come in about 6:45 that evening complaining that he could not open the night depository. Jenkins located a bank officer, who had Jenkins send the customer into the banking area. Jenkins stated that he spent the remainder of the evening checking the building. Jenkins was next door at the adjacent First Union building for five to six minutes during the evening. Jenkins stated that he became aware that the silent alarm had been activated when he came downstairs and discovered Officer Givens.

On November 18, 1988, the jury returned a verdict of guilty; ten days later, Jenkins filed a motion for a new trial based on his suppression argument. The court denied the motion on January 4, 1989. On March 30, 1989, the court sentenced Jenkins to twenty-seven months' incarceration, three years' supervised release, $6,029.70 restitution to First Union Bank, and a $50.00 special assessment.

On appeal, we consider four questions: (1) whether the district court erred in denying Jenkins' motions to suppress on the grounds of insufficiency of the affidavit and lack of probable cause; (2) whether the court erred in denying Jenkins' motion to suppress certain evidence allegedly obtained outside the scope of the warrant; (3) whether the court erred in commenting on the evidence prior to the jury charge; and (4) whether the court accurately computed Jenkins' sentence under the Federal Sentencing Guidelines.

II. ANALYSIS

A. Sufficiency of the Affidavit and Probable Cause

On January 20, 1988, FBI Agent Ann Todd applied for a warrant to search Jenkins' house. The affidavit accompanying the warrant application first recited the details of the theft. The affidavit then explained that Todd had interviewed the bank's cleaning staff and determined that none of them had been in the bank when the alarm was activated. The affidavit stated that the investigation had focused on Jenkins for four reasons:

1. Jenkins was the only person in the bank when the alarm sounded who had keys to the bank;

2. Jenkins was "bitter" at having his First Union employment terminated;

3. Jenkins told Officer Givens that he knew the alarm had sounded even though there was no indication of that within the bank; and

4. Jenkins was the only person with access to the night depository vault who refused to take a polygraph test. ⁵

The affidavit also stated that Todd had spoken with a 17-year veteran FBI agent who had worked on bank robbery and burglary matters for ten of those years. The agent told Todd that people who steal money are most likely to take it to their homes for safekeeping. Finally, the affidavit recited the contents of the depository vaults as listed by the bank employees, including depository bags and envelopes of varying sizes and shapes, deposit tickets, checks, stock certificates, and currency. Based on this affidavit, the magistrate issued a warrant to search Jenkins' home.

Jenkins argues that the fruits of the search should have been suppressed because the affidavit failed to mention certain facts, the inclusion of which would have precluded a finding of probable cause for the issuance of a warrant. Jenkins alleges that the affidavit did not state: (1) that January 4 was Jenkins' first night as the only security guard, and that he had previously worked on the fourth floor; (2) that there were no specific instructions telling Jenkins how to perform what had previously been a two-man job by himself; (3) that Jenkins had never been convicted of a crime; (4) that the total contents of the depository vault weighed approximately 30 pounds and would have been very difficult to carry; (5) that upon activation of the alarm a perpetrator would have had less than a minute to conceal any stolen items; (6) that Jenkins, White, and Gilmore all searched the immediate area and found nothing; (7) that there were no specific instructions to lock the doors from the lobby to the bank while checking the building next door; (8) that...