U.S. v. Ellzey

• Decision Date: 24 June 1991
• Docket Number: No. 90-2085,90-2085
• Citation: 936 F.2d 492
• Parties: 33 Fed. R. Evid. Serv. 378 UNITED STATES of America, Plaintiff-Appellee, v. Brian T. ELLZEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 492

936 F.2d 492

33 Fed. R. Evid. Serv. 378

UNITED STATES of America, Plaintiff-Appellee, v. Brian T. ELLZEY, Defendant-Appellant.

No. 90-2085.

United States Court of Appeals Tenth Circuit.

June 24, 1991.

Peter Schoenburg, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

Robert J. Gorence, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Before SEYMOUR, ANDERSON, and TACHA, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Brian T. Ellzey appeals his conviction in district court for interference with interstate commerce by threats of violence in violation of 18 U.S.C. Secs. 1951 and 2. He contends that: (1) the trial court's prohibition of his cross-examination of a government witness to show bias denied him his right to confrontation; (2) the prosecutor's remarks during closing argument constituted prosecutorial misconduct sufficiently prejudicial to justify the granting of a new trial; and, (3) the trial court's submission of an Allen instruction coerced the jury into a guilty verdict. We affirm.

BACKGROUND

Brian Ellzey was charged with extorting $50,000 from the Moriarty branch of the United New Mexico Bank. The facts are as follows: On January 11, 1989, John Griego, an Assistant Vice-President and Branch Manager of the bank, arrived at the bank at his usual time of 7:45 a.m. Upon entering the building, Griego found a note telling him of the location of a bomb in the bank and informed him that a similar bomb was located at his home with his wife and daughter. The note warned that the bombs would be activated either by the lifting of a phone receiver or by transmitter signals from police radios within fifty feet or by the triggering of remote transmitters in the possession of the extortionists who "will monitor every action you take." The note then instructed Griego to wait in the storeroom until the bank vault's time lock expired at 8:00 a.m. at which time he was to place $50,000 in small, unmarked bills in a box, along with the instructions and the bomb.

Griego complied with the instructions except he left the storeroom at 7:55 to retrieve the newspaper from the front of the bank and photocopied the instructions to prove that he had, in fact, been extorted. He filled the order entirely with $20 bills. Griego then drove to Old Cemetery Road and left the box behind the ninth power pole as instructed.

Thomas Brown lived a half-mile from the drop-site and witnessed both the drop and the pick-up. While walking to work along Cemetery Road, Brown saw a dark pick-up truck stop, the driver get out and leave a box behind the power pole. Soon thereafter, Brown saw a maroon car stop, the driver get out and retrieve the box. Later that day, Brown described the second car to police authorities as a two-door, maroon Chevy Citation hatchback with a six-inch racing stripe and a white sticker on the windshield. He later identified a photograph of Ellzey's car as the same car even though his car was a red four-door Datsun without sticker or racing stripe, although it had a bumper guard.

New Mexico State police officer Mark Clayton and a fellow officer were the first to arrive at the drop-off scene a few minutes after 8:30. Clayton testified that there were two sets of footprints going from the roadway directly east to the pole. One set was made by cowboy boots, the other by boots with a corrugated vibrum sole, like the kind worn by the police. Clayton denied that he had made the second set of prints. He saw no other tracks leading up to the pole from any direction. About 9:00 a.m., Sheriff Gary Watts arrived. He found tennis shoe tracks some distance south of the pole that led to Brown's house and then returned along the road and passed several feet west of the pole.

At trial, Elizabeth Campbell, the grandmother of Ellzey's wife, took the stand. Ellzey and his wife had lived with Campbell for a number of years. She testified that while Ellzey usually got up at 9 o'clock, on January 11th he was gone from the house by 5:30 a.m. He returned for lunch wearing basketball shoes. She testified, however, that he did own work boots, presumably of a type that would leave a print similar to those found at the pole.

Two other prosecution witnesses, Kelly Bicknell, the cousin of Ellzey's wife, and Leslie, his wife, both testified that Ellzey had picked them up after work on June 2. They stated that Ellzey and Kelly got drunk and that Ellzey told them that he had extorted the Bank, but that he only received $10,000 and his father had kept the rest. Ellzey also purportedly stated that he was not afraid of getting caught because he had nothing left to show for his ill-gotten gains and because he trusted them not to tell anyone.

The government then showed the financial status of Ellzey before and after the date of the extortion as circumstantial evidence of his involvement. Prior to the extortion, Ellzey had $5,000 in outstanding debt, lived rent-free with relatives and his wife had been receiving public assistance. In December, he and his wife applied for an FHA loan to purchase a house, indicating in their application that they had $200 in cash and that they anticipated that Ellzey would earn $13,800 in 1989.

After the extortion, the government presented evidence that Ellzey became notably more affluent than before and spent approximately $6,300 within a few months. For example, on January 15, he bought a 1978 Oldsmobile for $1,100, entirely in $20 bills. Then, he and his family drove to California for a week long vacation visiting relatives. Ellzey also paid $318.75 in cash to finish payments on a gun. Then in February, Ellzey rented a home for his family, making the payments almost totally in $20 bills. In addition, he paid $220 in cash to start utility services and posted $1,200 worth of bonds in Bernalillo County Metropolitan Court, paid in $20 bills. Campbell testified that Ellzey also bought a big screen TV, a VCR, a Nintendo game and several Nintendo tapes. When Ellzey's car was searched on May 10, 1989, nineteen $20 bills were found in the glove compartment.

The defense sought to establish reasonable doubt as to Ellzey's guilt by showing that Griego concocted the extortion hoax and had carried it out with Brown's help. Ellzey attempted to show that Griego had become disenchanted with his work and had a personality conflict with his supervisor. He also relied on Griego's preoccupation with preserving evidence of extortion, on Griego's minor departures from the instructions indicating that he did not fear that he or his family would actually be harmed, and on the fact that Brown had failed to tell the police that he had seen Griego drop off the box and had inaccurately described Ellzey's car. He also showed that Brown was in financial trouble at the time of the extortion.

Ellzey claimed that he had been in Estancia, New Mexico on the day of the extortion. He and his wife testified that Ellzey left the house about 8:50 a.m. on the day in question and went to Estancia as usual to call his father to see if there was work for him that day. He also testified that he began earning more money than he had ever earned before in late 1988 and early 1989 and that he saved as much as he could, much in $20 bills, to better his family situation. He denied confessing to the Bicknells.

The jury returned a verdict of guilty from which Ellzey now appeals.

CONFRONTATION CLAUSE

Ellzey argues that the district court violated his right to confrontation by restricting his cross-examination of Gary Watts, a government witness, concerning a pending state felony indictment against him. After reviewing de novo, we disagree. See Tapia v. Tansy, 926 F.2d 1554, 1557 (10th Cir.1990) (review Confrontation Clause claims de novo, citing Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1055 (6th Cir.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984)).

At the time of his testimony, Gary Watts, sheriff of Torrance County, was under indictment in Bernalillo County for residential burglary, larceny and conspiracy, facing a maximum sentence of eight years imprisonment. One of the prosecutors for that case, Mark Jarmie, had worked in the United States Attorney's Office with Robert Gorence, the assistant U.S. attorney prosecuting this case, up until one year before trial. Ellzey sought to cross-examine Watts about his state charges in order to establish a "prototypical form of bias" for the prosecution. He argues that "[i]t would not be unreasonable [for the jury] to surmise Watts would feel that, by impressing with his helpfulness the recent colleagues of the person prosecuting him, he would increase his chances for favorable treatment by the prosecutor in his criminal case." Appellant's Brief at 30-31.

The district court prohibited questioning on the subject for the following reasons:

Firstly, there is absolutely no testimony in this proffer from which a jury could infer that there is any suggestion that he might receive any favorable consideration by anyone connected with this case in reference to the charges in exchange for favorable testimony to the government.

As a matter of fact, and so far as the testimony is concerned, the testimony, all that it does is it buttresses other testimony to the same effect.... So that there is no suggestion at all that this witness is doctoring his testimony in any way whatsoever.

And if relevant by any stretch of the imagination, if the matter of the state indictment against him is relevant by any stretch of the imagination, I would exclude it on 403 grounds, on the grounds that the probative value of that testimony, the testimony concerning the state charges, is greatly outweighed by the possible prejudice to the state, to the government, and also by a confusion of the issues.

Tr. at 372-73.

The Confrontation Clause guarantees the right to effective cross-examination....