U.S. v. Butler

• Decision Date: 23 June 1992
• Docket Number: Nos. 778,776,801,D,s. 778
• Citation: 970 F.2d 1017
• Parties: UNITED STATES of America, Appellee, v. Wakeem BUTLER, Stanley Harris, and Marcellus Thomas, Defendants-Appellants. ocket 91-1349, 91-1350 and 91-1369.
• Court: U.S. Court of Appeals — Second Circuit

Page 1017

970 F.2d 1017

UNITED STATES of America, Appellee, v. Wakeem BUTLER, Stanley Harris, and Marcellus Thomas Defendants-Appellants.

Nos. 778, 776, 801, Docket 91-1349, 91-1350 and 91-1369.

United States Court of Appeals, Second Circuit.

Argued Jan. 23, 1992.

Decided June 23, 1992.

Julie Copeland, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. E.D. New York, Emily Berger, Asst. U.S. Atty., on the brief), for appellee.

Christine Yaris, New York City (Joel Cohen, on the brief), for defendant-appellant Wakeem Butler.

Harriet B. Rosen, New York City, for defendant-appellant Stanley Harris.

Erica Horwitz, New York City, for defendant-appellant Marcellus Thomas.

Before: NEWMAN and KEARSE, Circuit Judges, and MARSHALL, Associate Justice Retired ^*.

KEARSE, Circuit Judge:

Defendants Wakeem Butler, Stanley Harris, and Marcellus Thomas appeal from judgments entered in the United States District Court for the Eastern District of New York following a jury trial before I. Leo Glasser, Judge, convicting each of them of obstructing, delaying, and affecting interstate commerce by robbery and of conspiring to do so, in violation of 18 U.S.C. § 1951 (1988) (the "Hobbs Act counts"); and convicting Harris and Thomas of using and carrying firearms during the robbery, in violation of 18 U.S.C. § 924(c) (1988). Butler was sentenced principally to 126 months' imprisonment on the Hobbs Act counts, to be followed by a three-year term of supervised release. Harris was sentenced principally to 240 months' imprisonment on the Hobbs Act counts, to be followed by 60 months' imprisonment on the firearm count, with the prison terms to be followed by a three-year term of supervised release. Thomas was sentenced principally to 210 months' imprisonment on the Hobbs Act counts, to be followed by 60 months' imprisonment on the firearm count, with the prison terms to be followed by a three-year term of supervised release. On appeal, Butler principally challenges the sufficiency of the evidence to support his conviction; Harris contends principally that evidence of an out-of-court identification should have been suppressed as the product of an impermissibly suggestive showup; and Thomas contends that the court erred in sentencing him under the federal Sentencing Guidelines as a "career offender." For the reasons below, we affirm the convictions of Butler and Harris; we vacate Thomas's sentence and remand for further proceedings and resentencing.

I. BACKGROUND

The present prosecution arises out of the November 9, 1990 robbery of the M.U.H. Check Cashing business ("MUH"), operated in a storefront office in Brooklyn, New York. At about 8:20 a.m., as armored car guards arrived to deliver $151,000 to the store, two armed men, one wearing a ski mask, followed the guards in and ordered them to hand over their guns and the money. The guards' bag of money was taken from the store by the unmasked robber; the masked robber remained behind a moment longer. When the robbers entered, Maryanne Sundbye, a part-time employee who was the owner's sister, was behind the bullet-proof glass teller windows that normally separated MUH's customers from its employees. She watched the events, which she said lasted less than three minutes, from not more than 10 feet away.

Outside, a street vendor near the entrance had been forced to kneel on the ground and put his hands over his head. Two witnesses outside saw him kneeling. One of the witnesses, driving by, also saw the armored car guards inside with their hands up; he saw a man whom he later identified as Thomas leave the store carrying an Uzi submachine gun and a bag and get into a brown van, and saw another man subsequently leave the store and get into the van. The other witness saw the van, which he noticed was a brown Ford with a broken window, being driven off, and he heard someone jump into the van as it was moving away.

The police, promptly alerted to the robbery, the description of the van, and the direction in which the robbers had gone, apprehended a brown Ford van with a broken window within about 10 minutes. Thomas, Harris, and Butler were in the van; there was no sign of the money or the guns.

Sundbye, a coworker, and the armored car guards were then taken to where the van had been apprehended, and the suspects were brought, one by one, to the police car in which Sundbye and the others were sitting. She did not recognize Butler, the first suspect brought to the car. She identified Harris, the second suspect brought to the car, as the masked robber who had done the talking and who had momentarily remained behind. The ski mask's openings had not completely concealed the robber's face, and Sundbye identified Harris from his build, his clothing, and his skin color. She identified Thomas, the third suspect brought to the police car, as the unmasked robber who had left with the bag of money.

All three suspects were arrested. In a postarrest interview, Butler told FBI agents that he had gotten out of the van at MUH, but he said the robbery had not been his idea and had been a spur-of-the-moment action. He denied knowledge of what had happened to the guns and the money, saying that when he reentered the van, he had closed his eyes.

In a three-count indictment, all three defendants were charged with one count of obstructing, delaying, and affecting commerce by robbery, in violation of 18 U.S.C. § 1951 (count 2), and of conspiring to do so, in violation of § 1951 (count 1); Harris and Thomas were also charged with using and carrying firearms during the robbery, in violation of 18 U.S.C. § 924(c) (count 3). The jury found defendants guilty of all the charges against them, and they were sentenced as indicated above.

II. DISCUSSION

On appeal, Harris contends, inter alia, that the police conducted an impermissible showup at the site of the apprehension of the van and that evidence of Sundbye's identification at that time should have been excluded at trial. Butler contends that the evidence was insufficient to convict him and that he was prejudiced by a part of the government's opening statement that was not substantiated by the evidence. Thomas contends that the court erred in sentencing him as a "career offender." We find merit only in Thomas's challenge to his sentence.

A. The Identification Testimony

Prior to trial, Harris and Thomas moved unsuccessfully to suppress evidence of the identification of them by Sundbye at the site where the police had stopped the van. Harris pursues here his principal argument that the officers' bringing the suspects to the police car for Sundbye to view them was an impermissible showup, and he argues that her testimony was inherently suspect because prior to the showup she apparently had not given the officers any descriptions of the robbers. We reject these contentions.

When a pretrial identification procedure has been suggestive, the court must assess the likely reliability of the identification in light of " the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); accord Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). For both pretrial and in-court identifications, the linchpin of admissibility is reliability. Id. at 106 n. 9, 114, 97 S.Ct. at 2249 n. 9, 2253. The determination of whether or not the identification is sufficiently reliable to be admitted must be made in light of the totality of the circumstances. Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. at 382.

In the present case, after hearing testimony at a Wade hearing, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the district court found that Sundbye's identification testimony was reliable. That finding is supported by the record. Sundbye had a clear view of the robbers through the teller windows while the robbery was in progress. She was no more than 10 feet away from the action, and her testimony indicated that she had paid close attention and had observed the robbers' appearances and their actions. Her identification of the suspects, less than 30 minutes later, when they were brought to the police car in which she was sitting was unequivocal and selective: she did not identify Butler, the first man brought to the car (Butler had remained outside the store); she did identify the second and third, Harris and Thomas, as the robbers who had entered the store. We conclude that the record supports the district court's finding that, in all the circumstances, Sundbye's identifications were sufficiently reliable to be admitted into evidence. Any flaws in these identifications went to their weight rather than their admissibility.

In a pro se brief, Harris also claims, inter alia, that the police lacked probable cause to arrest him and that evidence that the van had been stolen was improperly admitted at trial. These claims provide no ground for reversal and do not require discussion.

B. The Sufficiency of the Evidence To Convict Butler

Butler points out that no witness identified him as one of the robbers, and he contends that the evidence introduced at trial showed only that he was present at the scene and that it was insufficient to support his conviction for robbery or conspiracy to commit robbery. He also contends that there was no evidentiary support for so much of the government's opening as stated that Butler's role in the robbery was to "remain[ ] outside [MUH] holding a gun at the neck of a man who sold watches on the street." Neither of Butler's arguments has merit.

In challenging the sufficiency of the evidence to support his conviction, a defendant bears a heavy burden. United...