U.S. v. Frauendorfer, 04-3624.

• Decision Date: 14 November 2005
• Docket Number: No. 04-3624.,04-3624.
• Citation: 428 F.3d 1115
• Parties: UNITED STATES of America, Appellee, v. Russell J. FRAUENDORFER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

428 F.3d 1115

UNITED STATES of America, Appellee, v. Russell J. FRAUENDORFER, Appellant.

No. 04-3624.

United States Court of Appeals, Eighth Circuit.

Submitted: September 15, 2005.

Filed: November 14, 2005.

Mary C. Gryva, Omaha, NE, for appellant.

Jan W. Sharp, Asst. U.S. Atty., Omaha, NE, for appellee.

Before RILEY, HEANEY, and COLLOTON, Circuit Judges.

RILEY, Circuit Judge.

Russell Frauendorfer (Frauendorfer) appeals his convictions after a jury found him guilty of conspiring to commit armed bank robbery (Count One), committing an armed bank robbery (Count Two), and using a firearm in connection with the bank robbery (Count Three). The district court¹ sentenced Frauendorfer to concurrent sentences of 48 months' imprisonment on both Counts One and Two, and 84 months' imprisonment on Count Three, to be served consecutively. On appeal, Frauendorfer challenges the sufficiency of the evidence used to convict him. We affirm.

I. BACKGROUND

On May 30, 2003, a witness across the street from the Bank of Leigh in Creston, Nebraska, saw two men "sneaking along the edge of the bank, ducking down beneath each window as they went along the sidewalk," and then watched as the men "rapidly entered the bank." The men wore masks, hoods, and dark clothing. One man carried a silver handgun, and the other carried a "dark-colored" gun. Upon entering the bank, the men pointed their guns at the tellers, told the tellers to get on the floor, and stole $4,217 in cash from the bank. The stolen money contained bait bills, and copies were given to law enforcement. After the robbery, a witness saw a dust-covered Blazer speed away from the Bank of Leigh. Another witness observed a mud-covered Blazer or GMC Jimmy, with splashes of red visible through the mud, drive away from the scene of the robbery.

On June 18, 2003, Aaron Shanle (Shanle) and another young man entered the Columbus Tour & Travel Agency in Columbus, Nebraska. Shanle used cash to purchase a one-way airline ticket to Helsinki, Finland. Finding Shanle's purchase suspicious, employees of the travel agency contacted law enforcement. After learning Shanle used bait bills from the Bank of Leigh robbery to purchase the airline ticket, law enforcement issued an arrest warrant for Shanle. Shanle and Frauendorfer were close friends, and Shanle is Frauendorfer's nephew.

On June 21, 2003, a lone gunman wearing a mask, gloves, and dark-colored clothing entered the Platte Center Bank in Platte Center, Nebraska. The man stole approximately $5,255 in cash. A bank employee saw the robber leave the bank, and shortly thereafter, he saw a white sport utility vehicle drive away. Another witness spotted a white Blazer speeding away from the scene of the robbery. Witnesses could not tell how many people were inside the vehicle, because the windows of the Blazer were darkly tinted.

On June 25, 2003, during the course of the investigation to determine Shanle's whereabouts, law enforcement interviewed Frauendorfer. Frauendorfer told officers he was in Lincoln, Nebraska, on the day of the robbery, and he did not believe Shanle would be involved in a bank robbery.

After avoiding arrest for approximately two months, Shanle turned himself in to law enforcement. During a proffer interview with law enforcement, Shanle stated he committed the bank robberies with Frauendorfer.

On February 17, 2004, officers arrested Frauendorfer pursuant to a federal arrest warrant. Frauendorfer was indicted on five counts: (1) conspiring to commit armed bank robbery; (2) robbing the Bank of Leigh in Creston, Nebraska; (3) using a firearm in connection with the Bank of Leigh robbery; (4) robbing the Platte Center Bank in Platte Center, Nebraska; and (5) using a firearm in connection with the Platte Center Bank robbery.

At trial, Shanle testified against Frauendorfer. In exchange for implicating Frauendorfer in both robberies, Shanle hoped for a reduced sentence. Shanle testified to the following: (1) Frauendorfer went into the bank during the first robbery, and Frauendorfer drove the getaway vehicle after the second robbery; (2) Frauendorfer drove Frauendorfer's GMC Jimmy in the first robbery, and Frauendorfer drove Shanle's white Blazer in the second robbery; (3) before the first robbery, Shanle and Frauendorfer applied red contact paper and mud to Frauendorfer's GMC Jimmy to make it appear red; (4) during the first robbery, Shanle carried a Remington Rand 1911 handgun, and Frauendorfer carried a Glock .40 handgun purchased from Frauendorfer's brother-in-law for Shanle's use; (5) while Shanle was a fugitive, Frauendorfer gave Shanle his birth certificate and social security number so Shanle could apply for a passport and purchase an airline ticket to Ireland using Frauendorfer's name; (6) Frauendorfer accompanied Shanle to the travel agency to purchase the airline ticket to Helsinki; (7) Shanle was interested in traveling to Finland to see a foreign exchange student he dated in high school and whom Shanle believed lived near Helsinki; (8) within hours of the second robbery, Frauendorfer drove Shanle to Phoenix, Arizona, and left him with some friends; (9) while Shanle was a fugitive from justice, Frauendorfer helped Shanle move locations while he made brief visits to Nebraska; and (10) shortly before Shanle surrendered, Shanle and Frauendorfer spent Labor Day weekend at a Mexican resort town.

During trial, one of Frauendorfer's...