U.S. v. Davis
| Decision Date | 25 September 2002 |
| Docket Number | No. 00-1270.,00-1270. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David Devon DAVIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Andrew Byerly Birge (argued and briefed), Grand Rapids, MI, for Plaintiff-Appellee.
Kevin M. Schad (argued and briefed), Schad & Cook, Indian Springs, OH, for Defendant-Appellant.
David Devon Davis (briefed), Terre Haute, IN, pro se.
Before CLAY and GILMAN, Circuit Judges; HAYNES, District Judge.*
Defendant, David Devon Davis, appeals from the judgment of conviction and sentence entered by the district court following Defendant's jury trial convictions for aiding and abetting in the commission of two armed bank robberies, in violation of 18 U.S.C. § 2113(a) and (d), and of aiding and abetting in the using or carrying and brandishing of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Defendant, through counsel, raises seven challenges to his sentence. Proceeding pro se, Defendant raises another three independent challenges. The challenges Defendant raises in this appeal go to the entire proceedings below, from alleged deficiencies in his indictment to sentencing errors. For the reasons that follow, we AFFIRM Defendant's convictions, but VACATE AND REMAND his sentence with respect to his restitution order. In all other respects, we AFFIRM Defendant's sentence.
On June 28, 1999, a federal grand jury in Grand Rapids, Michigan returned a four-count indictment against Defendant, alleging two counts of aiding and abetting in two bank robberies, in violation of 18 U.S.C. § 2113(a) and (d), and 18 U.S.C. § 2, and two counts of aiding and abetting in the use and brandishing of a firearm during the robberies, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). On September 16, 1999, the grand jury returned a superseding indictment alleging the same crimes, but with technical modifications to the indictment. Defendant was arraigned on the original indictment on July 19, 1999, and on the superseding indictment on September 21, 1999. Both times, Defendant pleaded not guilty to all charges. A three-day jury trial commenced on September 23, 1999, and after deliberations, the jury returned a verdict of guilty as to all counts. Defendant was sentenced to a term of 481 months' imprisonment, a $400 special assessment ($100 for each count), $4,790 in restitution, and five years of supervised release. Defendant filed this timely appeal on March 2, 2000.
At Defendant's first arraignment, a federal magistrate judge informed Defendant, and his then counsel Larry B. Woods, of the four charges against Defendant. The magistrate specifically informed Defendant that if he was convicted on count four of his indictment for aiding and abetting the use of a firearm during a crime of violence, he faced twenty-five years' imprisonment. At Defendant's second arraignment pertaining to the charges in the superseding indictment, the magistrate informed Defendant and his counsel, John R. Beason, of the same four charges, but advised Defendant that as to counts two and four, he faced a possible sentence of only seven years for each offense. Defendant represented that he understood the charges against him and the possible sentences he faced and pleaded not guilty both times. Defense counsel failed at any time to inform Defendant that he faced a twenty-five-year sentence if he was convicted of count four of the indictment.
At Defendant's trial, fourteen-year-old Jordell Steen testified that he robbed two banks on February 9, 1999 and was aided by Defendant, who was twenty-two years old at the time of the offense, and Antwand Hawkins. Steen testified that before Defendant arrived at Hawkins' house, Steen and Hawkins had talked about making some money, but made no mention of a bank robbery. Hawkins called Defendant, who when he arrived, asked Steen whether he (Steen) "was going to do that?" Steen testified that this referred to committing a bank robbery. Steen testified that Defendant told him he had better rob the bank. According to Steen, Defendant planned many of the details of the robbery and provided the firearms to be used.
Hawkins and Steen's account of what transpired varied somewhat. Hawkins testified that Steen needed to get out of town because the police were looking for him, and he wanted to rob a bank but did not know how to drive. Hawkins called Defendant and told him that Steen wanted to rob a bank but needed guns and a ride.
Steen testified that Hawkins and Defendant originally wanted him to rob a bank on "28th Street," but that because Steen had robbed that bank earlier, they thought it would be "too hot" to return there. Steen testified that Defendant then selected a bank on 3000 Eastern Avenue in Grand Rapids. Steen testified that Defendant lived in that area and said he was familiar with the bank Hawkins verified this account, testifying that Defendant told Steen that they would rob a bank that's "smoother."
Steen testified that before they arrived at the bank, Defendant gave him a gun and told him that it was already cocked and loaded. Steen testified that Defendant told him to go into the bank and ask for hundreds, fifties, and twenties, and that if anyone put dye in the bag with the cash, that he was to shoot that person. However, Hawkins testified that Defendant gave Steen one of the guns at his home, and told him not to shoot anyone.
Steen testified that Hawkins dropped him off in front of the bank and, pursuant to the plan, Steen went inside with a .38 firearm and demanded money. He testified that a man put money and, unbeknownst to Steen, dye, in a burgundy bag that Hawkins had given to Steen. After Steen got the bag, he ran to the side of bank where, according to the plan, he was to find clothes that Hawkins left for him. The dye in the bag exploded and Steen stated that it got on his hands. Steen left the money by a fence, which he testified Hawkins and Defendant told him to do, and changed into the clothes that were left there for him. He eventually left the gun on a nearby bridge. Steen testified that Defendant told Steen after he robbed the bank, changed clothes, and dropped the money off, he was either supposed to take a city bus back to Hawkins' house, or Hawkins and Defendant would pick him up.
After the first robbery was completed, Defendant and Hawkins picked up Steen in Defendant's car. Defendant and Hawkins went to look for the money but could not find it. Hawkins and Defendant took Steen to the house of one of Defendant's relatives so that Steen could wash the dye off his hands.
Defendant then decided that Steen should rob another bank. According to Steen, Defendant told him that Defendant had not "come down here for nothing." They drove to Old Kent Bank in Grand Rapids, and Defendant gave Steen the second gun, and told him to rob that bank. Steen testified that Defendant told him to demand hundreds, fifties and twenties, and also to tell the teller "to fill the money up" so that Steen could see if the teller were to put dye in the bag. After the robbery, Steen ran from the bank and jumped into Hawkins' car. Defendant followed in his car. Once back at Hawkins' home, which was also the home of his girlfriend, Defendant and Hawkins split the money and Steen returned Defendant's gun to him. Steen testified, however, that he stole fifty dollars of the money when Hawkins' back was turned.
Steen testified that after the robbery, Defendant told Steen that he was sending him to stay with some friends in Cleveland. He provided Steen money for a bus trip to Cleveland and with the name and number of the friend with whom Steen was to stay. After arriving in Cleveland, Steen realized the contact information was false. Steen slept in the bus terminal, garages and on the streets for a few days until he was aided by a woman, Mahogany Austin, who found him on the street one night and with whom he stayed for a month. Steen contacted Defendant from Cleveland, and testified that Defendant told him to go to New York and that there were friends there with whom Steen could reside. Steen received money from Austin's sister and stayed with Defendant's friends, who told Steen that in order to remain with them he would have to sell drugs. Steen testified that he overheard one of Defendant's friends speaking with Defendant on the phone, and that Defendant gave his friend orders to kill Steen. Steen testified that he managed to escape after a lengthy street chase.
At the end of the second day of the three-day trial, a juror, Karen Stephen, notified a member of the judge's staff that she worked with the mother of a government witness who had just testified. The district court advised the parties of this fact, and defense counsel suggested making Stephen an alternate. The following day, the district court again addressed the issue, and the prosecution reiterated the defense counsel's earlier suggestion. The district court stated that another possibility would be "to get Ms. Stephen in here," presumably for questioning. However, both parties agreed to allow all jurors, including Stephen, to remain on the jury, but to dismiss Stephen as an alternative at the end of the trial.
On the second day of trial, the prosecutor informed the district court that he had discovered two new witnesses, Heidi Austin and Joan Harry, that he might call to take the stand. The prosecutor told the court that he had only the day before discovered that Austin knew anything about the case. As for Harry, the prosecutor stated that he did not know...
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