U.S. v. Coleman

Decision Date18 November 2003
Docket NumberNo. 02-2992.,No. 02-2994.,No. 02-3147.,02-2992.,02-2994.,02-3147.
Citation349 F.3d 1077
PartiesUNITED STATES of America, Appellee, v. Kenneth COLEMAN, Appellant. United States of America, Appellee, v. Andre Worthy, Appellant. United States of America, Appellee, v. Orlando Willis, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Before MELLOY, HANSEN, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Kenneth Coleman, Andre Worthy, and Orlando Willis were charged with a variety of counts arising out of a conspiracy to rob multiple banks. Following a jury trial, appellants were convicted of all counts and sentenced to terms of imprisonment of 709, 444, and 275 months, respectively. Appellants appeal a variety of the district court's1 rulings-including its refusal to suppress the results of a search warrant and its denial of motions for alleged Franks and Bruton violations. They also appeal the denial of two motions for mistrial and a sentencing determination. For the reasons stated herein, we affirm.

I.

Appellants masterminded a series of five bank robberies in the St. Louis area from December 1999 to June 2001. Each robbery followed the same modus operandi. After the bank had closed, appellants would abduct at gunpoint the bank's manager-either in the parking lot of the bank or from her home. Often they would restrain and hold hostage the bank manager's family members or roommates. They would then force the manager to open the bank's vaults and automatic teller machines. During each of the robberies, appellants wore ski masks or other disguises and communicated in code with each other through two-way radios. In total, they stole approximately $1.2 million from various banking institutions.

During one bank robbery — a December 8, 2000, robbery of the St. Louis Community Credit Union — a dye pack was accidently taken along with the currency. When the robber left the bank, the dye pack exploded onto some of the currency. Later, some of the dyed currency was used to purchase two money orders at the Grand-U-Buy convenience store and two cans of gun powder and shotgun-shell primers at Graf's Reloading — a gun and ammunition shop.

On both occasions, an employee of the store became suspicious and called the police. At the gun shop, an off-duty police officer became so suspicious that he further monitored the two men who made the purchase. He observed them leave in a dark blue or black customized van with Missouri license plate number 192-BMW or 192-MBW. License number 192-MBW was registered to Sheila Willis, Coleman's aunt, and was listed as a dark blue conversion van. The money orders purchased at the convenience store were later traced to a firearms seller in Ducktown, Tennessee. The money orders were used to purchase two grenade launchers and three reloading kits, deliverable to Kevin Willis (a Coleman alias) at 3116 Hickory Street.

After a failed bank robbery attempt on June 2, 2001, a confidential informant ("CI") came to the St. Louis Police Department ("SLPD") on June 5, 2001, and informed the police that Coleman, Worthy, and possibly Willis were responsible for the string of bank robberies. The CI-who in turn received much of his information from an anonymous source close to the appellants-advised the SLPD and the FBI that the appellants were planning another robbery and that they intended to murder someone while doing it. The CI advised them that Coleman lived at 5034 Bulwer Avenue. The SLPD and the FBI then began independent investigations of Coleman, Worthy, and Willis.

Surveillance of Coleman, Worthy, and Jacqueline Scott-Coleman's girlfriend-confirmed much of the CI's and anonymous source's information. Coleman, Worthy, and Scott were observed coming and going from 5034 Bulwer Avenue and appeared to be preparing for a bank robbery. Further investigations uncovered, among other things: that Worthy's name was on the first floor utilities of the Bulwer Avenue address; that on February 9, 2001, Scott had been arrested during an eviction from her and Coleman's 3116 Hickory Street residence; that during the arrest police seized drugs, drug paraphernalia, and weapons. In addition, records showed that Worthy was on probation for a drug crime and on parole for an armored car robbery, in which Coleman was implicated but not charged.

As a result of the above information, SLPD Detective Wayne Klobe prepared a warrant application and affidavit to search 5034 Bulwer Avenue. After reading the affidavit of Klobe and of the CI, who appeared personally at the hearing, a Missouri state court magistrate issued a warrant to search 5034 Bulwer Avenue. On the morning of June 7, 2001, police executed that warrant. Earlier that night, Coleman and Worthy were also arrested-Coleman in his dark blue conversion van; Worthy in his 1982 Pontiac Firebird. Police then searched Worthy, Coleman, and their cars. During these searches much incriminating information was discovered-including a receipt for a "U-Store It" locker in the name of Orlando Willis. Warrants for the U-Store It locker and for other storage facilities were then obtained and more incriminating evidence was discovered.

Willis was arrested and interviewed. During his interview, he made a number of admissions to FBI Special Agent Eric Simmons regarding the rental of the U-Store It locker. Coleman, Worthy, and Willis were then indicted and charged with a variety of counts, including conspiracy to commit armed bank robberies (violating 18 U.S.C. § 371), attempted armed bank robbery (violating 18 U.S.C. §§ 2, 2113(a) and (d)), and use of a firearm in relation to a crime of violence (violating 18 U.S.C. §§ 2, 924(c)). At trial, the government introduced evidence, which came from a variety of sources-testimony of the managers of the banks, the results of crime scene investigations, information seized after the searches, financial and cell phone records, other documentary evidence, and results of forensic testing. At one point, a redacted portion of Willis's admission of his rental of the U-Store It locker was permitted-over the objection of Coleman-to come into evidence.

On three relevant occasions through the trial, motions for mistrial were filed. First, Coleman moved for a mistrial after Police Officer Darren Whitehorn, who executed the search on 5034 Bulwer Avenue, testified about narcotics discovered there. (The district court had previously ruled such testimony inadmissible.) Coleman then lodged a second motion after the government's closing rebuttal argument, when the government made a comment regarding a potential witness — Phyllis Paige — and her failure to testify. Finally, Coleman made a motion for mistrial when Willis's counsel directly commented on who had rented the U-Store It locker, why that person had rented it, and who had requested that the person rent it. The district court — after issuing curative instructions — however, denied each of these motions.

The jury returned a verdict of guilty on all counts for each party. The verdict included a special finding that Coleman and Worthy had conspired to rob five banks and that Willis conspired to rob two banks. Based on that special finding, the district court — pursuant to Sentencing Guidelines § 1B1.2(d) — treated each of the five bank robberies as a separate count of conspiracy. Worthy objected, arguing that this amounted to an improper expansion of his indictment. The district court denied that motion and sentenced Coleman to 709 months, Worthy to 444 months, and Willis to 275 months. Coleman, Willis, and Worthy appeal.2

II.

Appellants first challenge the district court's refusal to suppress the results of the searches of Coleman's house and of the U-Store It locker. They initially argue that the searches should have been suppressed because the warrants were not supported by probable case. They additionally contend that the search of Coleman's house should have been suppressed because the search warrant's supporting affidavit contained deliberate or reckless falsehoods and omissions, which rendered the warrant void under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

A.

We first address Coleman's, Worthy's,3 and Willis's4 claim that the warrants to search Colman's residence at 5034 Bulwer Avenue and the U-Store It locker were not supported by probable cause. Specifically, they argue that the warrants were invalid because they relied upon the affidavit of Klobe, who based his affidavit upon double hearsay — information he received from a CI that had been received from an anonymous source. After the district court heard argument on this issue, it denied appellants' motion. We review the denial of a motion to suppress de novo, but review the underlying factual determinations for clear error, giving due weight to the inferences of the district court and law-enforcement officials. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

For a search warrant to be valid, it must be based upon a judicial finding that there is probable cause, that is, a "fair probability" to believe that the listed items may be found at the place to be searched. Illinois v. Gates, 462 U.S. 213, 232, 246, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Such a determination is to be based upon the "the totality of the circumstances." Id. at 238, 103 S.Ct. 2317. In other words, the task of the issuing magistrate is to make "a practical, common-sense decision whether given all the circumstances set forth in the affidavit before him, including...

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