U.S. v. Acker
| Citation | 52 F.3d 509 |
| Decision Date | 03 May 1995 |
| Docket Number | No. 94-5246,94-5246 |
| Parties | 42 Fed. R. Evid. Serv. 181 UNITED STATES of America, Plaintiff-Appellee, v. Catherine Yvonne ACKER, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
ARGUED: Edward Anthony Fiorella, Jr., Harkey, Lambeth, Nystrom & Fiorella, Charlotte, NC, for appellant. William A. Brafford, Asst. U.S. Atty., Charlotte, NC, for appellee. ON BRIEF: Mark T. Calloway, U.S. Atty., Charlotte, NC, for appellee.
Before WIDENER and HALL, Circuit Judges, and CHAPMAN, Senior Circuit Judge.
Reversed and remanded for a new trial by published opinion. Senior Judge CHAPMAN wrote the opinion, in which Judge WIDENER and Judge HALL joined.
Catherine Yvonne Acker was tried by a jury and convicted of the August 18, 1992 armed robbery of a Charlotte Branch of the First Citizens Bank in violation of 18 U.S.C. Secs. 2113(a) and (d), for knowingly and unlawfully using and carrying a firearm during the commission of said robbery, in violation of 18 U.S.C. Sec. 924(c)(1), and the September 28, 1992 robbery of the Kenilworth Avenue Branch of Wachovia Bank in Charlotte, North Carolina. At the same trial, she was acquitted of the charge of robbing the Tyvola Road, Charlotte, North Carolina branch of Wachovia Bank on December 24, 1992 and the May 19, 1993 robbery of Central Carolina Bank in Charlotte. She was sentenced to 51 months imprisonment for her bank robbery convictions, plus a consecutive 60 month sentence on the firearm count. Her appeal presents numerous claims of error, but we find merit in only one of these claims, which was the use of the prior consistent statement of a witness in violation of Fed.R.Evid. 801(d)(1)(B). We reverse the convictions and remand for a new trial.
The appellant was arrested on May 21, 1993 pursuant to a criminal complaint charging her with the May 19, 1993 robbery of the Central Carolina Bank in Charlotte. She participated in a lineup at the Mecklenburg County Jail on June 3, 1993 with five other black females. Each of these individuals wore a wig, sun glasses and a straw hat, which was the dress of the robber as described by witnesses at each bank. Each lineup participant was asked to say, "Hurry up, hurry up," and "Look lady, don't get hurt." Of the four witnesses from the August 18, 1992 robbery, three identified the appellant as the robber. From the September 28, 1992 robbery, the only witness to the lineup identified the appellant as the robber. All three of the witnesses to the December 24, 1992 robbery identified the appellant as the robber. Neither of the witnesses to the May 19, 1993 robbery identified the appellant. The three witnesses who failed to identify the appellant as the robber of any of the banks did not identify anyone else in the lineup as the robber.
Appellant was thereafter indicted for all four bank robberies, the firearms count and a one-count conspiracy with Samuel Holly to rob the Central Carolina Bank. Samuel Holly and appellant Catherine Acker lived together for approximately 25 years, but never married.
Appellant moved to sever the charges as to each bank robbery pursuant to Fed.R.Crim.P. 8(a) and 14. She claimed a misjoinder of offenses under Rule 8(a) and prejudicial joinder under Rule 14. These motions were denied.
Prior to trial, Holly entered into a plea agreement in which he agreed to enter a plea of guilty to aiding and abetting the Central Carolina Bank robbery and to testify for the prosecution in exchange for the dismissal of the conspiracy count and a recommendation for a probationary sentence. Appellant objected to Holly testifying against her, claiming that all confidential conversations between them were privileged under spousal immunity or the marital communications privilege. This motion was denied, and Holly testified for the prosecution.
Holly testified that appellant told him that she robbed the First Citizens Bank and the two branches of Wachovia Bank. She brought large amounts of money home after each of the robberies, and over time she explained to him various details of the robberies. Holly was a participant in the robbery of the Central Carolina Bank on May 19, 1993. He drove the get-away car, a brown Cadillac El Dorado. He also described the appellant's clothes at the time of the robberies, the wig, glasses and straw hat she wore and the approximate amount of money taken from each bank.
There were surveillance camera photographs from three of the robberies and other evidence, including the eye witnesses' identifications to support the jury verdict.
Holly was arrested after the May 19, 1993 robbery of Central Carolina Bank, but was not held in custody. On August 4, 1993, the appellant and Holly were charged in a superseding indictment. Holly was charged with conspiracy to rob the Central Carolina Bank and with aiding and abetting in the robbery of that bank. Holly had been questioned by Officer Mark Rozzi at the time of his original arrest in May 1993, but he denied participating in any of the robberies. However, he did indicate to Officer Rozzi that Catherine Acker might be involved and suggested that Rozzi talk with her.
On October 13, 1993, five months after his original arrest, two months after he had been indicted, and shortly before the scheduled date of his trial, Holly and his attorney met with Officer Rozzi in the attorney's office. At this meeting, Holly gave a statement that Acker committed the four robberies and described them in some detail. Shortly after providing this information to the government, Holly signed a plea agreement which allowed him to plead guilty to aiding and abetting the robbery of the Central Carolina Bank. The agreement also required the government to dismiss the conspiracy count against Holly and the government agreed to recommend a sentence of probation in exchange for his testimony at Acker's trial.
Holly testified for the government and identified the appellant as the robber of each of the four banks. On direct examination, the prosecutor asked Holly if this testimony in court was the same as what he told Officer Rozzi when Rozzi interviewed him in October, 1993. Holly answered in the affirmative.
Later in the trial, Officer Rozzi was called as a government witness and gave information as to his investigation of the bank robberies. On direct examination by the Assistant United States Attorney, he was asked about his October, 1993 interview with Holly and Holly's attorney. The prosecutor asked Officer Rozzi if Holly told him in the interview the same things about each of the robberies that Holly had just testified to in court. Defense counsel objected:
Your Honor, I think this impermissible in corroboration. Mr. Holly testified. Now, the agent can't come in and state things that Mr. Holly may not have testified to.
The Court: Come on. Step up to the bench.
(Bench conference off the record).
The Court: All right. Under Rule 801(b)(1), 1 subsection (b), this witness will be permitted to testify in corroboration of what Mr. Holly said only, Agent Rozzi, as to whatever he has stated in the courtroom today. You cannot expand beyond that.
Prosecutor Brafford: Agent Rozzi, I am going to ask you if you think you are able to go through your report of your interview with Mr. Holly on October 13th and state what he said then only with respect to things he has also said here in court? Do you believe you can do that?
Agent Rozzi then testified in considerable detail about his October interview with Holly and all that Holly told him about the four bank robberies and Catherine Acker's role in these offenses.
Following approximately two and one-half days of testimony, the jury arguments and the instructions of the court, the jury retired to deliberate about 3:40 p.m. on Wednesday, November 17, 1993. The court adjourned at 5:15 p.m. and dismissed the jury with instructions to return the following day at 9:30 a.m. to resume deliberations. Shortly before court reconvened on Thursday, juror Brenda N. Revels called the Clerk of Court for the Western District of North Carolina and advised that she had injured her ankle in a fall the day before and would not be able to resume deliberations at the time ordered by the court because she had to seek medical attention.
Upon being informed of this call from the juror and not knowing the extent of her injuries or how long she might be unavailable or the length of any delay that might be occasioned, the district court, exercising its discretion under Fed.R.Crim.P. 23(b), excused the absent juror and allowed the eleven remaining jurors to reach a verdict. The jury found the appellant guilty of Counts 1, 2, and 3 and not guilty of Counts 4 and 5.
Appellant made a motion for judgment of acquittal, and in the alternative, for a new trial on the ground that the verdict by the eleven person jury violated her Sixth Amendment right to a unanimous verdict by a jury of twelve persons. This motion was denied, the appellant was sentenced and now appeals.
We find no merit to appellant's claims of misjoinder. Her motion was filed on September 29, 1993, and she claimed that joinder of the various counts in the indictment was not permissible under Fed.R.Crim.P. 8(a) and 14.
Rule 8. Joinder of Offenses and of Defendants.
(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
Rule 14. Relief from Prejudicial Joinder.
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or...
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