U.S. v. Kimmons, s. 90-5413

• Citation: 965 F.2d 1001
• Decision Date: 08 July 1992
• Docket Number: 90-5432,Nos. 90-5413,s. 90-5413
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William KIMMONS, Howard Small, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Bruce Lee BERTA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1001

965 F.2d 1001

UNITED STATES of America, Plaintiff-Appellee, v. William KIMMONS, Howard Small, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Bruce Lee BERTA, Defendant-Appellant.

Nos. 90-5413, 90-5432.

United States Court of Appeals Eleventh Circuit.

July 8, 1992.

Theodore J. Sakowitz, Federal Public Defender, Gregory A. Prebish, Alison Marie Igoe, Asst. Federal Public Defenders, Miami, Fla., for Small.

Kenneth P. Speiller, Miami, Fla., for Kimmons.

Dexter W. Lehtinen, U.S. Atty., Frank H. Tamen, Lynne W. Lamprecht, Linda C. Hertz, Asst. U.S. Attys., Miami, Fla., for U.S.

Henry M. Bugay, Miami, Fla., for Berta.

Appeals from the United States District Court for the Southern District of Florida.

Before FAY, Circuit Judge, DYER and CLARK ^*, Senior Circuit Judges.

FAY, Circuit Judge:

In this consolidated appeal, William Kimmons, Howard Small, and Bruce Lee Berta challenge the district court's application of the United States Sentencing Guidelines. In addition, Small and Kimmons raise claims concerning the validity of their convictions. The appellants were charged with conspiracy to affect commerce by robbery of armored car companies, in violation of 18 U.S.C. § 1951(a), and with related firearms offenses. A jury convicted Kimmons and Small on all counts, and each received life imprisonment with additional concurrent sentences. In a separate proceeding, Berta pled guilty to all pertinent counts of the indictment and received a sentence of 123 months. We AFFIRM the challenged convictions and the sentences the district court imposed on each defendant.

I. BACKGROUND

On June 21, 1989, an anonymous source notified the Federal Bureau of Investigation (FBI) that certain unidentified individuals intended to rob an armored car near Bird Road in the southwest section of Miami. The robbery would be committed by men driving a white van with a boomerang-shaped television antenna on the roof. In response to the tip, the FBI established a loose surveillance of several financial institutions in the area. The FBI ascertained the routes and delivery stops of armored cars in the vicinity and watched for unusual activity.

The next day, a white van, precisely matching the description provided by the anonymous source, deliberately drove through the parking lot of the Coral Gables Federal Savings & Loan on Bird Road moments after a Wells Fargo armored car had arrived to deliver cash to the bank. The van was registered to William Kimmons. Having been warned by the FBI of the threat, Wells Fargo had conspicuously placed extra guards with shotguns on their armored cars. The white van turned away.

In mid afternoon, the van again drove through the parking lot of the bank. It then circled around the block of a second branch bank of Coral Gables Federal Savings & Loan. In the late afternoon, the FBI spotted the van at the Town & Country Mall, where Special Agent Robert Kaminski observed Kimmons and Howard Small exit the van, Kimmons enter the mall, and Small stand in the parking lot of the CenTrust branch bank for roughly ten minutes.

The following day, on June 23, 1989, Special Agent Peter Schopperle observed Small sitting at the entrance of the Las Americas shopping center on Coral Way. Small stayed at the mall for approximately five hours, intermittently surveying the traffic that entered the stores, making calls from a pay phone, walking to a turnpike overpass that overlooked the mall, and watching the arrivals of a Wells Fargo armored car at a Woolworth's Department Store and a Brinks armored car at Ocean Bank and Flagler Bank mall branches.

Over the next five weeks, the FBI observed the defendants repeatedly return to the Las Americas mall. On June 26th, Kimmons and Small arrived at the mall shortly before a Wells Fargo armored car delivered cash to a Woolworth's store; they watched the delivery from the sidewalk of the mall, standing at opposite sides of the armored car. On July 3rd, Small and Kimmons again arrived at the mall, approximately one minute prior to the arrival of a Wells Fargo armored car. They watched the armored car's activities at the mall and left approximately fifteen minutes after the car departed. On at least ten more occasions the defendants arrived at the mall solely for the purpose of observing armored cars, police patrols, mall traffic, the parking lot, and potential escape routes.

The FBI tracked the defendants to a single story residence at 12350 S.W. 35th Street in Miami. Kimmons had rented the residence continuously since 1987. Bruce Lee Berta, who had joined Kimmons and Small in their activities at the mall, had subleased a room from Kimmons and lived at the residence with his girlfriend. In June and July of 1989, during the course of their joint activity, Small also used the house as his residence.

On July 31, 1989, the FBI observed the defendants prepare for the actual robbery. The defendants had parked a Lincoln Town car in front of a Zayre store next to the door through which a Loomis armored car messenger entered and left with cash. At 8:50 a.m., Berta and Small drove a stolen Dodge Aspen from Kimmons' residence to the mall, and Kimmons followed in a Cadillac owned by Berta. Once at the mall, Small entered the Lincoln and drove it out while Berta pulled the Dodge into the same space. Kimmons remained in his Cadillac and drove up and down the parking lanes in front of Zayre's before returning home. Meanwhile, Berta joined Small in the Lincoln and drove up on the Florida Turnpike directly behind the Zayre store. They parked the Lincoln on the berm of the road and hung a sign in the window that said "Out of Gas--Will Return Shortly," although the gas tank was actually more than half full.

Berta and Small walked down the slope of the turnpike and entered the back portion of the mall through a narrow gap in the fence behind Zayre's. They walked to the parked Aspen and entered the car. Berta sat in the driver's seat and read a newspaper. Small ducked down and remained out of sight in the back seat. Berta checked his watch repeatedly.

At approximately 9:25 a.m., a Loomis armored car approached the Las Americas mall. At the same moment, however, a woman and a small child had wandered to the front of the Zayre department store so the child could play on a carousel. Small and Berta were less than ten yards away, poised in their parked car for the arrival of the armored car. Special Agent Stephen Warner immediately directed the manager of Zayre's to invite the mother and child into the store for a "pre-opening sale," in order to avoid the prospect of innocents caught in a crossfire.

Seconds later, as the Loomis car pulled in front of Zayre's, Special Weapon and Tactic (SWAT) agents rapidly converged on Small and Berta and ordered them out of the Dodge Aspen. They were arrested and handcuffed. On the seat next to Berta, agents found a sawed-off twelve-gauge shotgun loaded with five rounds of buckshot, including a round in the chamber of the shotgun. On the floor of the backseat, agents found a fully loaded Colt .38 super automatic pistol, a black ski mask, and gloves.

FBI agents then surrounded Kimmons' residence, ordered him out of his house, and placed him under arrest. Agents conducted a protective security sweep of the inside of the residence and found, inside a hall closet, a Ruger Mini-14 semi-automatic assault rifle with a taped, double magazine loaded with sixty rounds of ammunition. After giving Miranda warnings at the scene, agents took Kimmons to FBI headquarters.

Agent Warner again read Kimmons his rights. Kimmons said he understood his rights and that he would not make a statement until he spoke with his attorney. Agent Warner discontinued questions regarding the case but told Kimmons that he desired his cooperation concerning a search of the residence. After Warner read Kimmons a "consent-to-search" form, Kimmons stated that a search warrant was inevitable and signed the form.

A search of the residence uncovered several weapons, including a modified fully automatic nine millimeter Intratech pistol, a thirty-round magazine, two silencers, .38 caliber super automatic ammunition, a Mossberg twelve-gauge shotgun, another Ruger assault rifle, various shotgun shells, and two portable police radio scanners. The serial numbers on the weapons had been partially obliterated. Receipts found in Kimmons' bedroom showed that three of the weapons had been purchased by Kimmons' girlfriend, Barbara Rodriguez.

On October 31, 1989, a federal grand jury returned a superseding indictment against the defendants. Count I charged all three defendants with conspiracy to affect commerce by robbery of armored car companies, in violation of the Hobbs Act, 18 U.S.C. § 1951(a). Count II charged them with attempting to affect commerce by robbery of employees of Loomis Armored, Inc., in violation of 18 U.S.C. §§ 2 and 1951(a). Count III charged Berta with possession of a short-barrelled shotgun with no serial number, in violation of 26 U.S.C. § 5861(h) and 5871. Count IV charged Berta with carrying a Mossberg twelve-gauge shotgun during a federal crime of violence, in violation of 18 U.S.C. § 924(c)(1). Count V charged Small with carrying a Colt pistol during a federal crime of violence, in violation of 18 U.S.C. § 924(c)(1). Count VI charged Kimmons with possession of a silencer in violation of 26 U.S.C. §§ 5861(d) and 5871. Count VII charged Small with violation of the Armed Career Criminal Act, 18 U.S.C. § 922(g)(1). Count VIII charged Kimmons with the same offense.

Berta pled guilty to all relevant counts of the indictment on February 14, 1990. After a six-day jury trial beginning February 16, 1990, Small and Kimmons were convicted on all applicable counts. Under the Sentencing Reform Act of 1984, Berta received concurrent sentences of sixty-three months on Counts I, II, and III. He received a consecutive sixty-month sentence on Count IV, for a total sentence of...