U.S. v. Espinoza, 01-4240.

• Decision Date: 07 August 2003
• Docket Number: No. 01-4240.,01-4240.
• Citation: 338 F.3d 1140
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Devin ESPINOZA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

338 F.3d 1140

UNITED STATES of America, Plaintiff-Appellee, v. Devin ESPINOZA, Defendant-Appellant.

No. 01-4240.

United States Court of Appeals, Tenth Circuit.

August 7, 2003.

COPYRIGHT MATERIAL OMITTED

Edward K. Brass, Salt Lake City, Utah, for Defendant-Appellant.

Diana Hagen, Assistant United States Attorney (Paul M. Warner, United States Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

Before LUCERO, HARTZ, and McCONNELL, Circuit Judges.

HARTZ, Circuit Judge.

Defendant Devin C. Espinoza appeals his conviction and sentence for armed bank robbery in violation of 18 U.S.C. § 2113(a) & (d) and 18 U.S.C. § 2. He contends that (1) the trial judge failed to dispel the jury's confusion when responding to a jury question during deliberations, (2) the evidence of guilt was insufficient, and (3) his offense level under the Sentencing Guidelines was improperly adjusted upward on the basis of unreliable hearsay evidence. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm Defendant's conviction and sentence.

I. Background

A. Factual Background

On the morning of January 20, 2000, two robbers armed with handguns, and wearing coveralls, ski masks, and gloves, entered a branch of the U.S. Bank in Holladay, Utah. One of the robbers, later identified as Omar G. Sanchez, stayed in the bank's lobby area and watched the doors. The other walked toward the tellers' station, pointing his gun at teller Sherri Bird. He struggled to open the gate to the tellers' station until a second teller, Brandy Sawyer, unlocked it.

As he continued to point his gun at Ms. Bird, she opened her drawer, and he emptied the contents into a backpack. Unbeknownst to the robber, the drawer's contents included a dye pack. At the next drawer Ms. Sawyer emptied more money into the backpack. While searching the area for additional money, the robber was interrupted by Mr. Sanchez, who yelled from the lobby, "Come on, we're taking too long." The robbers fled the bank with $16,966.

A witness in the bank's parking lot saw a black extended-cab Toyota Tundra pickup truck speed away from the lot immediately after the robbery. About the same time, a worker at a cemetery near the bank heard tires squealing, looked up, and saw a dye pack explode in a black pickup.

Later that day the black pickup was found abandoned in a nearby church parking lot. On the morning of the robbery a person who lived next to the church had seen two men leave a green Chevrolet Blazer in the lot. (Evidence indicated that Mr. Sanchez owned a green Blazer.) That Blazer was gone when the black pickup was discovered. The pickup's interior had pink and orange stains with the same chemical composition as a bank dye pack.

At trial Ms. Bird, the bank teller, identified Defendant as the robber who had pointed the gun at her. She testified that she had seen him when he entered the gate and approached her drawer, when he was taking the money from the other teller, and when he was looking around for additional money. She explained that she was able to identify Defendant based on his eyes and the shape of his face, despite his wearing a ski mask.

Also testifying was a customer who witnessed the robbery from the bank's drive-thru window. She identified Defendant's photograph in a photo line-up as one of two that resembled the robber. She noted that the robber in the tellers' station was taller and thinner than the robber who waited in the lobby of the bank (Mr. Sanchez). (Defendant is, in fact, taller and thinner than Mr. Sanchez.) She also indicated that she could see the robber's brow and long face.

Two eyewitnesses outside the bank provided corroborating identifications of Defendant. One, the cemetery worker who saw the dye pack explode in the black pickup, identified Defendant's photo in a photo line-up as one of two that resembled the driver. He testified that when the dye pack exploded, smoke began to pour out of the truck and the two occupants stuck their unmasked heads out their doors, at which point he could see their faces.

The other eyewitness, an employee at a nearby nursery who saw a black pickup drive by after the robbery, selected two possible suspects from a photo line-up as resembling an occupant in the vehicle; one of the two photos depicted Defendant. Unlike the cemetery worker, however, she identified him as the passenger in the vehicle.

In addition to the eyewitness testimony, there was evidence tying Defendant to the black pickup, the purchase of coveralls like those used in the robbery, dye-stained money, and other dye-stained items. The black pickup had been stolen from Kimberly Jensen on January 17, 2000, when she went inside her babysitter's house to drop off her child, leaving her keys, purse, wallet, checkbook, and identification in the truck. Defendant, who lived less than a mile from the babysitter's house, was later seen carrying Ms. Jensen's wallet, including her checkbook, identification, and a credit card. On the day Ms. Jensen's pickup was stolen, when Defendant and Mr. Sanchez were at the home of their friend, Christine Rollins, Mr. Sanchez asked Defendant for the wallet so that he could give it to Ms. Rollins, who was experienced in forging and cashing stolen checks. Defendant informed Ms. Rollins that the checks were "fresh" from a stolen vehicle. Later that day the three friends — Defendant, Mr. Sanchez, and Ms. Rollins — used the stolen checks at numerous stores. As they were so engaged, Defendant informed Ms. Rollins that he had a "little black truck" but that it was broken down.

There was also evidence that Defendant purchased coveralls similar to those used in the robbery. The day before the robbery, three pairs of coveralls were purchased from the General Army Navy Store. A recording from the store's security camera showed Defendant buying the coveralls, paying in cash. The receipt for that purchase was later found in Mr. Sanchez's home, with Defendant's fingerprint on it. The bank tellers who witnessed the robbery identified the coveralls purchased at the General Army Navy Store as of the same type as those worn by the robbers.

Finally, evidence linked Defendant to the stolen money. Defendant's brother testified that Defendant gave him and two other siblings money that was red or pink on the edges. Defendant told them that he had spilled Kool-Aid on the bills. Moreover, an FBI agent who searched Defendant's bedroom discovered an ironing board cover and pad with red and pink stains on them. A later test indicated that the stains were chemically consistent with stains caused by a bank dye pack. Expert testimony indicated that an item would have to be thoroughly saturated with dye for it to transfer dye to items such as the ironing board cover and pad.

Defendant called Mr. Sanchez as his sole witness. A year earlier Mr. Sanchez had pleaded guilty to the robbery of the U.S. Bank, but he had repeatedly refused to name his accomplice. At Defendant's trial Mr. Sanchez insisted that Defendant had not been involved. He testified that he had given Defendant money to buy coveralls but had never told Defendant how they were to be used. He also testified that after the robbery he had given Defendant between $200 and $400 in dye-stained bills, which he had told Defendant to wash, but that he had never told Defendant how he had gotten the money. Mr. Sanchez also indicated that he had purchased the guns used in the robbery, and that the guns had been thrown in the river after the robbery.

According to Mr. Sanchez, Russell Thornwall (also known as "Puppet") was the person who robbed the bank with him. Mr. Thornwall died a year before Defendant's trial. Mr. Sanchez testified that the reason he had not previously named Mr. Thornwall as his accomplice was that Mr. Thornwall had still been alive when earlier inquiries had been made; Mr. Sanchez had not, however, come forward to clear Defendant's name during the year between Mr. Thornwall's death and Defendant's trial.

B. Court Proceedings

Defendant was charged with one count of committing and aiding and abetting an armed bank robbery, in violation of 18 U.S.C. § 2113(a) & (d) and 18 U.S.C. § 2 (Count I), and one count of committing and aiding and abetting the offense of using or brandishing a firearm during the robbery, in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2 (Count II). A jury trial was conducted from June 25 to June 29, 2001.

During deliberations the jury sent a note to the trial judge asking whether it could convict Defendant on the armed robbery count without convicting him on the firearm count. After the question the note said: "We consider it possible that while he aided and abetted the commission of the crime, there is not enough evidence to determine that the defendant was instrumental in procuring weapons or planning their use." R., Vol. I, Doc. 108. The judge, without any objection from the parties, answered "yes" to the question and reminded the jury to consider all previous instructions. Four hours later the jury rendered its verdict: Defendant was found guilty of armed robbery, but not guilty of using or brandishing a firearm during the robbery.

The probation office presentence report recommended that the court increase Defendant's offense level by two levels for obstruction of justice under USSG § 3E1.1, because Defendant had colluded with Mr. Sanchez to present false testimony. Evidence of the collusion came from an unidentified informant who claimed to have spoken with Mr. Sanchez while both were incarcerated. The Court found the evidence reliable and imposed the enhancement. Defendant was sentenced to 200 months' imprisonment.

II. Discussion

On appeal Defendant claims three errors: (1) the trial judge's response to the jury's note was incomplete and misleading; (2) the evidence was insufficient to support the guilty verdict for armed bank robbery; and (3) the obstruction-of-justice enhancement was improper because it was based on...