U.S. v. Jones

• Decision Date: 03 July 1990
• Docket Number: 89-5034,Nos. 89-5032,s. 89-5032
• Citation: 907 F.2d 456
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert William JONES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald Eugene JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 456

907 F.2d 456

59 USLW 2135

UNITED STATES of America, Plaintiff-Appellee, v. Robert William JONES, Defendant-Appellant.

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

Nos. 89-5032, 89-5034.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 5, 1989.

Decided July 3, 1990.

James T. McBratney, Jr., Florence, S.C., argued, John Herman Hare, Asst. Federal Public Defender, Columbia, S.C., for defendants-appellants.

Alfred William Walker Bethea, Jr., Asst. U.S. Atty., Columbia, S.C., argued (E. Bart Daniel, U.S. Atty., Paul Stroebel, Third Year Law Student, Columbia, S.C., on brief), for plaintiff-appellee.

Before PHILLIPS and WILKINSON, Circuit Judges, and BRITT, Chief United States District Judge for the Eastern District of North Carolina, sitting by designation.

PHILLIPS, Circuit Judge:

Donald Johnson and Robert Jones appeal from their 1988 convictions for armed bank robbery, in violation of 18 U.S.C. Sec. 2113, and use of a firearm during a crime of violence, in violation of 18 U.S.C. Sec. 924(c), in connection with the June 6, 1988, robbery of Anchor Bank in Myrtle Beach, South Carolina. Johnson and Jones assign numerous errors in the admission of evidence and denial of their motions. They further contend that the district court incorrectly applied the Federal Sentencing Guidelines, resulting in both defendants being sentenced as career offenders under Sec. 4B1.1 of the Guidelines. We affirm the convictions but remand for resentencing under the interpretation of the Guidelines we outline below.

I

Johnson and Jones were convicted after a four-day trial in September 1988. At trial, the government presented the testimony of an FBI expert, who evaluated bank surveillance photographs of the two robbers, both of whom had worn sunglasses and baseball caps, but no masks, during the robbery. The expert identified the defendants as the men in the photographs after comparing the bank photographs with others of the defendants. He also identified sunglasses and baseball caps seized from a residence leased by Johnson and his cousin as those worn by the robbers in the photographs. In addition, the government presented the testimony of five eyewitnesses--four bank tellers and a bank customer--who identified Johnson in court as one of the robbers; two bank tellers identified Jones in court as the other. These witnesses also testified to their identification of the defendants at an earlier line-up.

Other evidence showed that Jones and Johnson were together when they were arrested and that both had in their possession at that time a large quantity of five-dollar bills with sequential serial numbers. The government presented other circumstantial evidence, including testimony that the defendants were in the area of the bank at the time of the robbery, that they had had no cash immediately before the robbery, and that just before he was arrested, Johnson denied that he was Donald Johnson when asked.

The jury found both defendants guilty on both counts. Following recommendations in the presentencing reports, the court sentenced both Johnson and Jones as career offenders under Sec. 4B1.1 of the Sentencing Guidelines. As a consequence of that most extreme of criminal history classifications, Johnson was sentenced to twenty-seven and a half years in prison, and Jones to twenty-seven years.

II

The first of the Johnson and Jones' assignments of error focuses on an allegedly improper comment made by the court:

You will recall yesterday, I mentioned that there are a variety of reasons why a person accused of a crime may choose not to testify. And more often than not, that reason not to testify will have nothing to do with the merits of the case on trial.

Sometimes a defendant has a not too complimentary background and does not wish the United States Attorney to have the opportunity to bring these matters out before the jury.

And yet, such a person could be innocent of the offense being tried before you. So, that could be a reason a defendant might choose not to testify.

So once again, if one or both defendants were to choose not to testify, you should place no inference against them in that regard, since the constitution affords them the right not to testify.

I remind you that the defendants are presumed to be innocent. And the government must prove their guilt beyond a reasonable doubt.

The defendants do not have to prove their innocence.

Joint Appendix at 81 (emphasis added).

The appellants point to the underlined portion of this excerpt from the trial judge's opening remarks and claim that this comment violated their fifth amendment right not to testify and to have no adverse inference suggested from the decision not to testify. They argue that the court's comment violated the dictates of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which forbids negative commentary on a criminal defendant's failure to testify.

Viewed in hindsight, the district judge's effort to drive home the irrelevance of a defendant's silence may have involved an improvident choice of example that was not worth the risk of misapprehension now seized upon by defendants. We do not condone it, precisely because of the obvious risk that in some contexts it could be prejudicial. But we are satisfied that, viewed realistically in total context of this case, it could not have been here. The remark was made as part of a strong admonition to the jury not to draw an unfavorable inference from silence, came before a four-day trial at which abundant evidence was presented, and was not repeated in the jury instructions, which included a cautionary statement against adverse inference from silence. A jury would not "naturally or necessarily take [this] as a comment on the defendant's refusal to testify," see United States v. Lorick, 753 F.2d 1295, 1298 (4th Cir.1985), and any conceivable impropriety in the comment was surely cured by its immediate context and by a later cautionary instruction that omitted the allegedly offensive remark. See id.

III

The appellants next contend that their right to an impartial jury was violated when two jurors saw them in handcuffs. They concede that a taint of this sort can be corrected if the court takes the necessary steps, but argue that in this case the court's general questions to each of the jurors were inadequate to ferret out bias.

Our review of the record indicates that the trial court was solicitous of the defendants' wishes on how to question the jurors and that, in fact, defendants' counsel had no objection at trial to the form of questioning. They now object to the generalized nature of the questions and to the fact that each juror was questioned. Ironically, both of these features were designed to protect the defendants: the general questions were meant to avoid any improper suggestion, and the blanket questioning was meant to test whether more than the two jurors might have heard about the handcuff scene.

Even assuming that these objections may now be heard, the questioning appears to have been thorough and careful. Each juror was asked whether he could reach a decision solely on the evidence and whether he had seen or heard anything out of court that might affect his decision. All answered no, and some were even probed further by the judge. In light of the trial court's broad discretion in conducting voir dire and in formulating questions for jurors, United States v. Robinson, 804 F.2d 280 (4th Cir.1986); United States v. Griley, 814 F.2d 967 (4th Cir.1987), this form of questioning was not an abuse of discretion.

IV

Johnson and Jones next challenge the line-ups in which they were identified. They make two arguments: (1) that they were denied their sixth amendment rights to counsel because, although their lawyers were present at the line-ups, they were not allowed in the witness' viewing room to monitor remarks of FBI agents conducting the line-up, and (2) the line-ups were overly suggestive because (a) other participants were joking with each other but not the defendants; (b) the others wore a variety of hats and sunglasses, but only the defendants wore ones like those used in the robbery; and (c) one of the defendants was required to repeat "Hit the floor!"--which the robbers had shouted--whereas the others said it only once. They contend further that the trial court erred in denying their motions to suppress both of these allegedly unconstitutional out-of-court identifications and tainted in-court identifications, which they claim had no independent basis.

We see no merit to the claimed violation of the right to counsel. Counsel was present in the line-up room with Johnson and Jones and had the opportunity to confer with them after the line-up. The appellants have cited no authority to the effect that counsel needs to be present in the witness room itself. There was testimony from one of the FBI agents that in his 22 years, lawyers had never been allowed in the viewing room. Furthermore, the defendants' counsel had opportunities to cross-examine the witnesses who made the identifications and the FBI agents who conducted the line-up, and a picture of the line-up was presented to the court when it ruled on the suppression motion.

Likewise, we see no merit to the various arguments that the line-up was impermissibly suggestive. As testimony heard on the suppression motion indicates, the defendants were themselves smiling, so that they did not stand out noticeably from the participants who were joking around; the defendants were given the chance to choose which set of hats and sunglasses they wanted to wear; and, finally, Johnson may have been asked to repeat "Hit the floor!" but only because he had spoken softly the first time.

Because the out-of-court identifications were sound, the in-court identifications need not be justified by any independent basis. If such a showing were required, however, the...