U.S. v. Curtsinger
| Decision Date | 20 October 1993 |
| Docket Number | 92-6067,Nos. 92-6044,s. 92-6044 |
| Citation | 9 F.3d 110 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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. Raymond H. CURTSINGER (92-6044) and Pete Gilbert (92-6067), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: MILBURN and GUY, Circuit Judges; and CONTIE, Senior Circuit Judge.
Raymond Hollis Curtsinger ("Curtsinger") and Pete Gilbert ("Gilbert") appeal their jury convictions, and the sentences imposed thereon, of one count of robbing a bank with a dangerous weapon in violation of 18 U.S.C. Sec. 371; one count of armed bank robbery in violation of 18 U.S.C. Sec. 2113(a) & (d); two counts of carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. Sec. 924(c)(1); one count of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1) and Sec. 924; one count of possession of an unregistered firearm in violation of 26 U.S.C. Secs. 5861(d), 5871; and one count of receiving, concealing and disposing of a stolen firearm which travelled in interstate commerce in violation of 18 U.S.C. Sec. 922(j) and Sec. 924.
On appeal, the issues are (1) whether the district court erred in denying Gilbert's motion to dismiss, or alternatively to elect prosecution, as to counts two, three, four, five, nine, and ten of the indictment and properly imposed sentence pursuant to 18 U.S.C. Sec. 924(c); (2) whether the district court abused its discretion under Federal Rule of Criminal Procedure 14 by denying Curtsinger's motion to sever count seven of the indictment, which charges a violation of 18 U.S.C. Sec. 922(g); (3) whether the district court erred in permitting the in-court identification of Gilbert by witness Mary Wood; (4) whether the district court abused its discretion by permitting evidence of Curtsinger's threat to harm government witnesses; (5) whether the district court abused its discretion in limiting the cross-examination of government witnesses who had exercised their Fifth Amendment rights concerning uncharged acts of misconduct by prohibiting introduction of extrinsic evidence of those acts; (6) whether the district court abused its discretion by refusing to permit Curtsinger to introduce a portion of the videotaped deposition of witness Gary Odom into evidence; (7) whether the district court erred in denying Gilbert's motions for judgment of acquittal under Fed.R.Crim.P. 29 as to counts nine and ten of the indictment and in denying Curtsinger's Rule 29 motion for judgment of acquittal as to all of the counts against him; (8) whether the district court erred in denying Curtsinger's motion for a mistrial based upon the prosecutor's closing argument; (9) whether the district court erred in rejecting Curtsinger's request for an addict witness instruction; (10) whether the district court erred in denying Curtsinger's motion for a new trial; (11) whether the district court correctly sentenced Gilbert as an armed career criminal under 18 U.S.C. Sec. 924(e); and (12) whether the district court correctly calculated Gilbert's and Curtsinger's offense level under United States Sentencing Guidelines ("U.S.S.G.") Sec. 2B3.1(b)(B) by including the value of a stolen pickup truck used in the bank robbery. For the reasons that follow, we affirm the defendants' convictions. However, because we conclude that the district court erred in including the value of the stolen S-10 pickup in calculating Gilbert's and Curtsinger's offense level, we vacate the sentences imposed by the district court and remand for resentencing.
During the summer of 1991, seventeen year old Joel Jaggers met Gary Odom, a felon with multiple convictions in Atlanta, Georgia. In September 1991, Odom and Jaggers travelled to Lexington, Kentucky, where they met Gilbert, also a convicted felon. Gilbert introduced Odom and Jaggers to Curtsinger. Subsequently, Odom and Jaggers returned to Atlanta. However, in October 1991, Odom and Jaggers, accompanied by Jaggers' girlfriend, Ginger Smith, left Atlanta to return to Lexington to meet Gilbert. En route, Jaggers' car broke down in Chattanooga, Tennessee. Odom stole a state highway truck, which the trio used to travel to Knoxville, Tennessee. At Knoxville, Odom and Jaggers stole a 1991 blue Chevrolet S-10 pickup from Jenkins Floor Coverings, which the trio used to travel to Gilbert's residence in Lexington.
After several days, Odom arranged with Curtsinger to rent a trailer home for the trio at 565 Paper Mill Road in Garrard County, Kentucky. The trailer home was owned by the Curtsinger family. Subsequently, Odom learned from Gilbert that Curtsinger had money problems. Consequently, Odom, Curtsinger, Jaggers and Gilbert began to plan a bank robbery.
In preparation for the bank robbery, Odom asked Curtsinger about acquiring guns. A few days later, Curtsinger told Odom and Jaggers that he knew of a house in Versailles, Kentucky, which had guns in it. Jaggers testified that Curtsinger said that his son-in-law, or nephew, or somebody knew the homeowner. Curtsinger took Odom and Jaggers to Pablo Ramirez's home at 313 Ridgewood, Versailles, Kentucky, showed them the house, and told them where the firearms were located in the house. Curtsinger discussed the plans to steal the firearms with the other conspirators. The following day, November 4, 1991, Odom drove the stolen S-10 pickup to Ramirez's home, determined that no one was at home, gained entry to the house through an unlocked window, and found the guns in the back bedroom of the house, just as described by Curtsinger. Jaggers crawled through an unlocked window and placed two .12 gauge shotguns, a .20 gauge shotgun, a .22 caliber rifle, a .30-.30 caliber rifle, a .22 caliber pistol, and a BB pistol into a bedspread along with some ammunition and handed them out the window to Odom.
Odom and Jaggers initially took the firearms to Gilbert's house in Lexington. Gilbert was aware that the guns were to be brought to his house, and the plans for the bank robbery were again discussed. Eventually, the stolen firearms were taken from Gilbert's residence to 565 Paper Mill Road. Curtsinger agreed to sell one of the .12 gauge shotguns and the .20 gauge shotgun in order to raise money. Odom gave the .30-.30 caliber rifle to either Gilbert or Curtsinger as a gift. Subsequently, during their discussions, the conspirators agreed that the other .12 gauge shotgun would be converted into a sawed-off shotgun and carried by Odom during the bank robbery. Gilbert was to carry the .22 caliber pistol and Jaggers was to carry the BB pistol.
The conspirators continued to discuss their plan to rob a bank. Gilbert, who was familiar with the area, took Odom and Jaggers to the Farmers Bank of Nicholasville, Kentucky, and pointed it out as a possible target of the plan. The conspirators decided that Odom would enter the bank carrying the sawed-off shotgun and would force all but one of the tellers in the bank to lie down on the floor; Gilbert would carry the .22 caliber pistol and would make sure that all of the employees in the back offices of the bank were brought out to the front of the bank and made to lie on the floor with the tellers. Jaggers was to carry the BB pistol and collect the money from the tellers. The conspirators further planned to go to the bank in the stolen S-10 pickup and to drive the pickup to a "switch" site, a little over a mile from the bank, where Curtsinger would be waiting in his truck to pick up the three robbers and drive them away.
A few days prior to the robbery, Odom, Gilbert, and Jaggers drove to the Farmers Bank of Nicholasville. Jaggers went inside to look at the floor plan of the bank and to check for security guards. There were no guards and Jaggers observed that only three female tellers worked there. He also observed that the bank's surveillance cameras were connected to a videotape machine located near the vault. Thereafter, the parties agreed that Gilbert would take the videotape from the machine during the holdup.
On the morning of November 19, 1991, the four conspirators met in Lexington and travelled to the "switch" site in the stolen S-10 pickup. There they found that the "switch" site had been fenced in during the night and they had to search for a new site. A new "switch" site was located behind a home which was under construction. Gilbert, Odom, and Jaggers then drove to the Farmers Bank in the stolen S-10 pickup. They were each carrying the weapons that they had previously planned to carry.
At approximately 1:10 p.m., tellers Jane Heibenthal and Ann Beckwith were working behind the teller counter of the bank. Teller Mary Wood was eating her lunch in the kitchen at the rear of the bank. At that time, Gilbert, Odom, and Jaggers entered the bank with their weapons drawn. They were not wearing masks. Odom ordered Heibenthal onto the floor; Gilbert went to the rear of the bank and brought Wood to the front of the bank at gunpoint. Wood noted that Gilbert had slicked back dark hair, a goatee, ruddy complexion, very mean-looking eyes, was about 5'7" to 5'8", and weighed approximately 175 pounds. Both Wood and Heibenthal identified Gilbert at trial.
Jaggers went to Beckwith's teller station and demanded money from her. He also told her that if she gave him any dye packs he would shoot the other two tellers. The bank's videotape then showed Gilbert approaching the videotape machine; however, as he did so a customer drove up to the bank's automatic teller machine setting off bells inside the bank. Because the customer at the automatic teller machine could see inside the bank, the three robbers exited the bank quickly, taking $5,744 but leaving the videotape. Photographs were made from the videotape.
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