U.S. v. Austin
| Decision Date | 11 March 1996 |
| Docket Number | Nos. 94-4220,94-4238,94-4278,s. 94-4220 |
| Citation | 81 F.3d 161,1996 WL 109500 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Darin AUSTIN, a/k/a Darnell Wiggins, a/k/a "D Baby"; David Clements; and Jason Jarvis, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: BOGGS and DAUGHTREY, Circuit Judges; and McKEAGUE, District Judge. *
Darin Austin, David Clements, and Jason Jarvis appeal from their convictions and sentencing for armed bank robbery and conspiracy to commit armed bank robbery, in violation of 18 U.S.C. §§ 371, 924(c)(1), and 2113(a), (d) on a host of grounds. We affirm as to all issues and all defendants.
A summary of the seven bank robberies charged in the indictment against the defendants is given below:
Date Bank Robbed
1. July 22, 1993 National City Bank (NCB), Euclid, Ohio
2. September 15, 1993 NCB, Cleveland, Ohio (Lorain Avenue)
3. September 23, 1993 Third Federal Savings, Cleveland, Ohio
4. October 18, 1993 NCB, Cleveland, Ohio (E. 40th St.)
5. October 29, 1993 Dollar Bank, Cleveland, Ohio
6. November 8, 1993 Dollar Bank, Cleveland, Ohio (same)
7. November 27, 1993 Society National Bank, Cleveland, Ohio
A
The first robbery at NCB occurred at about 2:40 p.m. Two men entered in dark sweat clothes, with bandanas across their faces, wearing ski masks and surgical gloves. They told everyone to lie on the floor. One of the men told the teller Rina Laspina to open her top drawer and give him the money. When she made a move as if to set off her bait alarm, the man said, When she made a move to set off her vault alarm he reiterated the warning. Knowledge of the location or existence of the bait and vault alarms is uncommon. Another robber took $3,000 in Canadian notes, including some red-colored notes. The robbers were seen leaving with a black plastic garbage bag filled with money.
Earlier that day, Darin "D Baby" Austin offered Joseph Jordan $500 to "rent" his station wagon. He told Jordan to report the station wagon stolen after he left. Between 2:00 and 2:30 p.m. that day, Austin and Ulysses ("Woog" or "Woogie") Braxton, while sitting in Jordan's station wagon, asked fifteen-year old Juwan Thomas to get his brother Andre Hall. Once Hall was located, Austin asked him, "Man, you got a pistol because we about to go Jack somebody?" At about 4:00 p.m. that day, Jordan saw Austin pull up in front of him in a small blue car. Austin was carrying a black plastic garbage bag. Austin approached Jordan and dumped some money out of the garbage bag, including some that was red-colored. Later, Jordan also saw David Clements and Braxton arrive at Austin's house driving a blue Cadillac with "D Baby" license plates.
On January 12, 1994, a teller who had seen the face of the driver of the station wagon parked outside the first bank when it was robbed identified a picture of Clements out of a group of 15 other pictures. Police had earlier recovered Jordan's station wagon about a quarter mile away from the NCB branch that was robbed. In the car were pieces of clothing that matched the description of the clothes worn by the robbers, including the gloves and ski masks. Austin's fingerprints were found in one of the gloves.
B
The second bank was robbed using a similar method. Clements was acquitted of participating in this robbery.
C
Early on the day of the third robbery, police arrested "D Baby" Austin at his parents' house on unrelated charges. The police obtained consent to search his third-floor bedroom from his step-father, the owner of the home. Police recovered three firearms, and two black "ninja-type" ski masks from Austin's room. They were identical to the masks recovered from Jordan's station wagon.
Later that afternoon, the third bank was robbed. Anthony "Ant" Robinson testified that he was the driver for this robbery. He also testified at trial that he had attended an instructional showing of the movie "Point Break" with Austin, Braxton and Jason Jarvis earlier in the summer of 1993. At this "Point Break" gathering, Braxton and Austin asked Robinson if he would like to rob banks with them. Austin and Braxton, by imitating the movie, developed a modus operandi for bank robbery, in which they trained Robinson and Jarvis. Using this modus operandi, Robinson, Braxton, Jarvis, and Clements met at Austin's house to plan the third robbery on the same morning Austin was arrested. Robinson provided various details of the third robbery that were corroborated by a number of other government witnesses, including individuals who had nothing to do with the conspiracy.
D
Robinson testified that he, Braxton, Jarvis, and Gary Hobbs committed the fourth robbery. The defendants in this case were ultimately acquitted of this robbery, however. Robinson testified that Alfred "Alfie" Cade was allowed to help to plan this robbery, as he was becoming jealous of seeing his friends spend their ill-gotten gains.
E
Robinson was arrested on unrelated charges the day of the fifth robbery. Four men using roughly the same modus operandi participated in this robbery. Two eyewitnesses saw Jarvis and Clements immediately after the fifth robbery. They were seen running from the bank with a bag to their getaway car.
F
The sixth robbery saw the first injuries inflicted on a teller and on a robber. One teller was struck in the head by one of the robbers with what was probably a gun, and one of the robbers was shot by a bank security guard. Jarvis was admitted to the hospital with gunshot wounds later that same day. Michelle Orr testified that Jarvis told her that he had been wounded at a bank.
G
The seventh and final bank robbery was conducted by Orr, Braxton, Hobbs, and Jarvis. It followed the same modus operandi, and the bank robbery even ended when one of the bank robbers called out "time!" This practice was followed in the robberies portrayed in the movie "Point Break," where the perpetrators tried to execute their bank robberies with military precision.
H
An eighth potential bank robbery was aborted when an eyewitness observed Cade suspiciously looking into the window of a bank. A van then drove up containing Braxton, Jarvis, and Clements. The eyewitness managed to find a nearby police officer who ultimately stopped the van. Braxton, Jarvis, and Clements were then arrested. Each was either wearing the familiar black outfits used in the other robberies, or had such clothing nearby. Also in the van were three loaded semi-automatic pistols. Hobbs and Cade were arrested when they came that night to the police station to visit those who had been arrested. From an interrogation of Cade, the police learned about the possible involvement in the conspiracy of "Ant" Robinson and a person named "Del." "Del" turned out to be Austin's girlfriend, Adele Tucker. Tucker was a bank teller at the first bank that was robbed. She was the only teller to have refused a demand for money in the first bank robbery.
Cade, Tucker, Robinson, and Juwan Thomas testified before the grand jury, which returned an indictment of Austin, Clements, and Jarvis on charges of armed bank robbery and conspiracy to commit armed robbery, in violation of 18 U.S.C. §§ 371, 924(c)(1), and 2113(a), (d). After a trial, Austin was found guilty on 4 counts, and not guilty on 1 count. Jarvis was found guilty on 10 counts, and not guilty on 2 counts. Clements was found guilty on 8 counts and not guilty on 2 counts. Austin received a sentence of 262 months in prison, plus 60 months to run consecutively, all to be served concurrent with a sentence in a related case. Jarvis was sentenced to 96 years and 3 months in prison. Clements was sentenced to 74 years in prison. Each of these defendants timely appealed.
Other relevant facts are provided in the context of discussing the legal issues raised by Austin, Jarvis, and Clements. Each defendant's appeal is discussed separately, and this is the organization followed below; however, many of the same issues are raised by more than one defendant, so the discussion of Clement's and Jarvis's appeals is abbreviated.
Austin raises seven issues on appeal.
Austin argues that the firearms and ski masks obtained in a search of his apartment located in his parents' home should have been suppressed. 1 The district court, after a suppression hearing, denied Austin's motion to suppress. The burden is on Austin to show that some constitutional or statutory right was violated in order to have the evidence suppressed. Zalmanowski v. United States, 606 F.2d 673 (6th Cir.), aff'd, 445 U.S. 961 (1980). A district court's ruling on these matters will be upheld on appeal unless clearly erroneous. United States v. Moore, 917 F.2d 215, 223 (6th Cir.1990), cert. denied, 499 U.S. 963 (1991).
Austin's stepfather, Hardy Cole, gave consent for police to search the third floor of his house where Austin lived, which was a converted attic with no outside entrance. Cole said Austin paid rent, but had no idea how much, or if Austin did so consistently. Cole and Austin's mother owned the furniture on the third floor. The storage room across from Austin's bedroom was used by the family jointly. Cole and Austin never agreed that Cole could not go to the third floor. There were no locks or other obstacles preventing access from the second to the third floor. There were no kitchen facilities on the third floor. The electric bill came in Austin's mother's name. His mother often visited him there, and once told him when she found a gun on the third floor, that he was not allowed to keep the gun lying around. His mother...
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