United States v. Watson, 011614 FED6, 12-2218

Docket Nº:12-2218
Opinion Judge:HELENE N. WHITE, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEVIN WATSON, Defendant-Appellant.
Judge Panel:BEFORE: SUTTON, MCKEAGUE, and WHITE, Circuit Judges.
Case Date:January 16, 2014
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

KEVIN WATSON, Defendant-Appellant.

No. 12-2218

United States Court of Appeals, Sixth Circuit

January 16, 2014

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: SUTTON, MCKEAGUE, and WHITE, Circuit Judges.

OPINION

HELENE N. WHITE, Circuit Judge.

Kevin Watson was convicted by a jury of conspiracy to commit bank robbery, 18 U.S.C. §§ 317, 3113(a); bank robbery, 18 U.S.C. §§ 2113(a), (e); and murder with a firearm during and in relation to a violent crime, 18 U.S.C. § 924(j). He appeals, asserting that the district court erred by admitting into evidence portions of a recording made by a jailhouse informant as well as hearsay testimony deemed to be an "admission by silence" on Watson's part, and, further, that prosecutorial misconduct during closing arguments and the cumulative effect of these errors denied him a fair trial. We AFFIRM.

BACKGROUND

This case stems from the 2001 robbery of an armored truck at the Dearborn Federal Credit Union (DFCU) in Dearborn, Michigan. The robbers killed a guard and stole $204, 000 and the guard's gun. The robbery went unsolved for almost three years, until a jailhouse informant provided police with information. Eventually Watson and six others—Timothy O'Reilly, Khayyam Wilson, Norman Duncan, Archie Broom, Earl Johnson, and Henry Matthews—were arrested and charged.

The jailhouse informant, Baron Nix-Bey, was incarcerated in the Michigan Department of Corrections with O'Reilly. After he overheard O'Reilly discussing the DFCU robbery, he contacted the Detroit FBI hoping that the information he provided might merit some reward. The FBI arranged for Nix-Bey to record conversations between himself and O'Reilly using a recording device hidden in a portable radio. During one of these conversations, O'Reilly described the 2001 robbery in detail, naming several of his coconspirators. Watson and his codefendants were then indicted. Johnson was tried first and found guilty. This court affirmed in United States v. Johnson, 581 F.3d 320 (6th Cir. 2009). O'Reilly was also tried and convicted. Duncan, Broom, Wilson, and Matthews pleaded guilty.

Broom, Wilson, and Matthews testified against Watson at his trial. The story that emerges from their testimony is that Wilson, Johnson, and Watson had known each other since they met at work in 1994. In 2001, Johnson told Wilson and Watson of his idea to rob an armored truck. Watson then recruited O'Reilly and Duncan, both of whom had previously worked at Guardian Armored Security, an armored truck company. Johnson recruited Matthews during the final few days before the robbery, believing that a sixth person at the scene would be helpful. Broom was a friend of Duncan's who worked for U-Haul. Broom was not present for the robbery, but he provided the group access to a U-Haul van that they used during the robbery.

On December 12, 2001, the six men—Watson, O'Reilly, Duncan, Wilson, Johnson, and Matthews—made a first attempt to rob the armored truck. They met at Duncan's and drove to the DFCU parking lot to wait for the armored truck to arrive, but aborted the robbery when the van's lights unexpectedly began flashing. Two days later, they returned and committed the robbery. The men again met at Duncan's house. They arrived at the DFCU at around 1:00 a.m. and waited with the engine running until the armored truck arrived at 2:30 a.m. Watson, Duncan, and O'Reilly left the van first, each carrying a shotgun. According to the plan, they were supposed to make the guards get down on the ground, while the other three men ran to collect the bags of money. Within seconds after Watson, Duncan, and O'Reilly left the van, Wilson and Matthews heard gunshots. Matthews and Johnson grabbed the money while Wilson got in the driver's seat. Once everyone made it back to the van, they drove away. Matthews learned on the drive home that a guard had been shot. The men divided up the proceeds at Johnson's house that night.

Nix-Bey testified regarding his conversations with O'Reilly and the recording was played for the jury. In the recorded conversation, O'Reilly discussed the 2001 robbery and stated that he and Wilson shot the guard. O'Reilly also discussed a second armored-truck robbery that he committed in 2003 with Duncan and Broom.

Derrick Smith, LaTonya Smith, and Jerome Crutcher also testified for the prosecution. Derrick Smith was close with Earl Johnson at the time of the bank robbery. He testified that Johnson invited him to participate in the robbery but Smith did not take him seriously. After reports of the robbery surfaced in the media, Johnson admitted to Smith that he had been involved. Smith also testified that shortly after the robbery, he heard a conversation between Watson and Johnson during which Watson threatened to kill a coconspirator who had been "flashing money around, " and who Watson feared had snitched to the police. LaTonya Smith was Duncan's girlfriend in 2001, and his wife at the time of Watson's trial. She testified that she witnessed a conversation shortly after the robbery during which Watson made no comment when he heard Duncan ask O'Reilly if O'Reilly saw Watson shoot the guard. The district court admitted her testimony about the conversation over Watson's objection as an admission by silence on Watson's part. Jerome Crutcher had met Watson through his brother. Crutcher testified that he witnessed Watson attempt to sell his brother a shotgun shortly after the robbery and heard Watson state that he had used the gun when he "had to lay a guard down" during a robbery.

Watson presented his ex-wife's testimony that he was at home sleeping when the robbery occurred. He...

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