U.S. v. Cooper, No. 03-4019.

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: Seymour
• Citation: 375 F.3d 1041
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Todd Harold COOPER, also known as James M. Busch, Defendant-Appellant.
• Docket Number: No. 03-4019.
• Decision Date: 19 July 2004

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375 F.3d 1041 UNITED STATES of America, Plaintiff-Appellee,
v.
Todd Harold COOPER, also known as James M. Busch, Defendant-Appellant. No. 03-4019. United States Court of Appeals, Tenth Circuit. July 19, 2004.

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Edward Stanton Wall, of Wall Law Offices, Salt Lake City, UT, for Defendant-Appellant.

Michael S. Lee, Assistant United States Attorney (Paul M. Warner, United States Attorney, with him on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Before SEYMOUR, McKAY and O'BRIEN, Circuit Judges.

SEYMOUR, Circuit Judge.

In a two-count indictment, a federal grand jury charged Todd Harold Cooper with bank robbery in violation of 18 U.S.C. § 2113 and using a firearm while committing a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). After a trial, a jury found him guilty on both counts. Mr. Cooper appeals from the judgment of the district court on grounds of insufficient evidence, flawed jury instructions, improper denial of his request for access to a law library, and an illegal sentence. We affirm.

I

Shortly after 9:00 a.m. on July 17, 2003, a white male entered the First Security Bank at 3800 Washington Boulevard in South Ogden, Utah, wearing a Ronald Reagan mask and brandishing a shiny silver revolver. See Rec., vol. XV at 119-27, 147-51, 164-73. He announced that he was committing a robbery and ordered the bank tellers to place the bank's money on the counter. See id. After collecting $32,428.90 in a bag, he told the victims he had a police scanner and he would come back to kill them if they sounded an alarm. See id.; Rec., vol. XVI at 298. A witness described his getaway car as a black Trans-Am or Camaro. See Rec., vol. XVI at 257-58.

Early the next morning, an Arizona Highway Patrol trooper received a tip from a motorist that a driver who appeared

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to be impaired was traveling erratically along northbound Interstate 15 in a black Camaro. See id. at 327-29. A little after 2:00 a.m., the officer discovered an abandoned, smoking, and steaming black Camaro parked near an exit on Interstate 15. See id. at 330-31. He noticed blood on the ground near the driver's side door, and learned from his dispatcher that the Camaro's Oregon license plates were registered to a Todd Cooper. See id. at 332, 334. After a Utah Highway Patrol trooper arrived, the officers conducted a search for the driver and found Mr. Cooper asleep under a nearby bush. See id. at 335. Because he was bleeding, semi-coherent, and smelled of alcohol, the troopers arrested him for driving under the influence. See id. at 340. Mr. Cooper had in his possession a bag containing $31,172, including eight marked bills stolen from First Security Bank, a police scanner box and police code manual, a Ronald Reagan mask, and a loaded silver revolver. See id. at 324-344, 346-69; Rec., vol. XVII at 643.

A grand jury charged Mr. Cooper with one count of bank robbery, in violation of § 2113, and one count of using a firearm while committing a crime of violence, in violation of § 924(c)(1)(A)(ii). After a trial, the jury returned a guilty verdict on both counts and the district court sentenced Mr. Cooper to consecutive sentences of life imprisonment for the robbery and seven years imprisonment for the firearm charge.

II

On appeal, Mr. Cooper challenges the sufficiency of the evidence to establish that the branch bank he robbed was insured by the Federal Deposit Insurance Corporation (FDIC). He also contests the district court's aiding and abetting instruction, claims he was unconstitutionally denied access to a law library and argues the district court erred in giving him a life sentence under the "three-strikes" law. We address each argument in turn.

A. Sufficiency of evidence of FDIC insurance

Mr. Cooper contends the government failed to prove the First Security Bank branch at 3800 Washington Boulevard in South Ogden was insured by the FDIC. Sufficiency of the evidence is a question of law we review de novo. United States v. Carter, 130 F.3d 1432, 1439 (10th Cir.1997). To determine whether evidence is sufficient to uphold a conviction, "we examine, in the light most favorable to the government, all of the evidence together with the reasonable inferences to be drawn therefrom and ask whether any rational juror could have found the essential elements of the crime beyond a reasonable doubt." United States v. Arutunoff, 1 F.3d 1112, 1116 (10th Cir.1993). The jury has the responsibility of appraising witness credibility, weighing the testimony, drawing reasonable inferences, and reaching a conclusion. See United States v. Beaulieu, 900 F.2d 1531, 1533-35 (10th Cir.1990).

Proof that the financial institution at issue was insured by the FDIC at the time of the robbery is an essential element of bank robbery that the government must prove beyond a reasonable doubt. See 18 U.S.C. § 2113; United States v. Brunson, 907 F.2d 117, 118-19 (10th Cir.1990). To prove the South Ogden branch of First Security Bank was insured by the FDIC when it was robbed, the government offered testimony from a bank teller, a bank manager, and the official custodian of records at the FDIC.

Marianne Froerer, a bank teller at the South Ogden branch of First Security testified she had seen various insignia within the bank indicating it was insured by the

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FDIC, including signs at every teller window. Defense counsel objected to her testimony that the bank was insured by the FDIC on grounds that she lacked the knowledge necessary to testify competently to that fact. The court sustained the objection insofar as her testimony exceeded what she actually saw and knew directly, and the government moved on to a different line of questioning.

The bank's manager, Kerry Catt, then testified that based on his training and experience in the banking industry and with First Security in particular, he had information that the bank was insured by the FDIC when it was robbed. Mr. Catt also testified he provided the number from the bank's FDIC certificate to a federal agent. Defense counsel objected to his testimony several times on grounds of lack of personal knowledge, lack of foundation, and lack of competence to testify as to whether or not the branch at issue was covered by an FDIC certificate. The court either permitted clarification questions or overruled each objection, eventually stating "if somebody provides a number and says here's our insurance policy, here's the number, that would be some evidence from which the jury could conclude there was FDIC insurance...." See Rec., vol. XV at 303.

We will not disturb the district court's conduct of trial proceedings, including rulings on motions and objections, unless it affirmatively appears from the record the court abused its discretion. Smith v. Atl. Richfield Co., 814 F.2d 1481, 1485 (10th Cir.1987) (citing Rasmussen Drilling v. Kerr-McGee Nuclear Corp., 571 F.2d 1144, 1149 (10th Cir.1978)). Nothing in this record so indicates. The government established the foundation for Mr. Catt's testimony that the bank was insured. It questioned him about disclosures he was required to post throughout the branch, training he was required to provide to his staff, numerous communications and bulletins regarding those disclosures and training, his lengthy experience in banking, and his personal experience of providing the number on the insurance certificate to the federal agent. Because Mr. Catt provided evidence from which the jury could conclude there was FDIC insurance, we cannot say the district court abused its discretion in admitting his testimony.

The testimony of Valerie Best, an assistant executive secretary and official records custodian at the FDIC, was more contentious. Ms. Best testified that a federal agent requested documentation from her regarding whether the South Ogden branch of First Security Bank was insured by the FDIC on the day of the robbery. In response to that request, she reviewed the relevant FDIC records and prepared the following documents: an affidavit, computer record printouts indicating insured status for First Security Bank (Exhibit 11A) and the South Ogden branch specifically (Exhibit 11B), and a duplicate of the insurance certificate issued to First Security Bank. She also testified that when the FDIC began insuring banks in 1934, its records were kept on index cards, but over time the records were computerized. When Ms. Best testified that Exhibit 11A was an accurate representation of the FDIC's computer records, defense counsel objected on grounds that she had not compared the computer record to "the actual record." Rec., vol. XVIII at 747. The court overruled the objection and admitted Exhibits 11A and 11B into evidence.

Ms. Best attempted to explain the computer records she had prepared, and defense counsel objected strenuously on grounds that Ms. Best was testifying solely as the custodian of records and not as a designated expert witness. In defense counsel's view, the computer records

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should have spoken for themselves and any explanation by Ms. Best of the information on the computer screen printouts was improper expert testimony. The court overruled the objection, noting "I don't think she is testifying as an expert. I think she is just explaining what the screen says. I think that would be entirely appropriate. Some documents speak for themselves but I think this one might need a little explanation." Id. at 749.

Ms. Best then explained that Exhibit 11A was the FDIC record reflecting that the FDIC had insured First Security Bank since 1934. Turning her attention to Exhibit 11B, Ms. Best explained that over 33,000 branch banks exist in the United States and the FDIC uses a large second database to keep track of each branch. Defense counsel again objected, restating at length his objection that Ms. Best was offering her expert opinion that the bank was insured by the FDIC at the time of the...