U.S. v. Green, s. 96-6042

• Decision Date: 18 June 1997
• Docket Number: Nos. 96-6042,96-6043 and 96-6046,s. 96-6042
• Parties: 97 CJ C.A.R. 1058 UNITED STATES of America, Plaintiff-Appellee, v. Eric Devon GREEN, Vincent Berry, William Leroy Harding, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1479

115 F.3d 1479

97 CJ C.A.R. 1058

UNITED STATES of America, Plaintiff-Appellee, v. Eric Devon GREEN, Vincent Berry, William Leroy Harding,

Defendants-Appellants.

Nos. 96-6042, 96-6043 and 96-6046.

United States Court of Appeals, Tenth Circuit.

June 18, 1997.

Susan L. Foreman, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, CO, for defendants-appellants Green and Berry.

William P. Earley, Assistant Federal Public Defender, Oklahoma City, OK, for defendant-appellant Harding.

Ted A. Richardson, Assistant United States Attorney, (Patrick M. Ryan, United States Attorney, with him on the brief), Oklahoma City, OK, for plaintiff-appellee.

Before PORFILIO, Circuit Judge, HENRY, Circuit Judge, and McWILLIAMS, Senior Circuit Judge.

McWILLIAMS, Senior Circuit Judge.

By superseding indictment, Eric Devon Green, Vincent Berry and William Leroy Harding were jointly charged in the United States District Court for the Western District of Oklahoma with various criminal acts arising out of two robberies, and one attempted robbery, of three federally insured banks in or around Oklahoma City, Oklahoma. In a joint trial, all three were convicted on all counts wherein they were charged, and all were sentenced to imprisonment. Green (No. 96-6042) and Berry (No. 96-6043) have appealed their respective convictions and sentences. Their separate appeals were companioned for purposes of briefing and oral argument. Harding (No. 96-6046) also appealed his conviction and sentence and his counsel has filed a separate brief. All three appeals were set for oral argument before this panel of the court, and counsel for Green and Berry argued their appeals. Thereafter counsel for Harding argued his appeal. The In Count 1 of the superseding indictment, Green, Berry and Harding were charged with conspiring from December 23, 1994, to June 5, 1995, to rob various federally insured banks in Oklahoma in violation of 18 U.S.C. §§ 2113(a) and (d), and 18 U.S.C. § 371.

panel has now determined that these three appeals should be consolidated for disposition in one opinion since they are interrelated and there is, understandably, considerable duplication in the respective briefs of the appellants.

In Count 2, Green and Berry, but not Harding, were charged with robbery by force, violence and intimidation on December 23, 1994, of the Local Federal Bank in Oklahoma City, Oklahoma, a federally insured bank, in violation of 18 U.S.C. § 2113(a). In that same count, they were also charged with putting in jeopardy the life of Allison Ammer by the use of a firearm, in violation of 18 U.S.C. § 2113(d), in committing the aforesaid robbery.

In Count 3, Green and Berry, but not Harding, were charged with robbery by force, violence and intimidation on February 17, 1995, of the Bank of Oklahoma located in Midwest City, Oklahoma, a federally insured bank, in violation of 18 U.S.C. § 2113(a). In that same count, they were also charged with putting in jeopardy the lives of Paula Enix and Julie Cooper by the use of a firearm, in violation of 18 U.S.C. § 2113(d), in committing the aforesaid robbery.

In Count 4, all three defendants were charged with an attempt to enter and rob Bank IV of Guthrie, Oklahoma, a federally insured bank, on June 5, 1995, in violation of 18 U.S.C. § 2113(a), each of the three defendants then having an intent to commit bank robbery, by force, violence and intimidation.

In Count 5, Green was charged with knowingly carrying a firearm, a .380 caliber Pietro Beretta pistol, on June 5, 1995, during and in relation to a crime of violence, namely, attempted robbery of a federally insured bank, in violation of 18 U.S.C. § 924(c)(1).

In Count 6, Green was charged with possessing a firearm, a .380 caliber Pietro Beretta pistol, on June 5, 1995, after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1).

In Count 7, Berry was charged with carrying a firearm on June 5, 1995, during and in relation to a crime of violence, namely, attempted robbery of a federally insured bank, in violation of 18 U.S.C. § 924(c)(1).

In Count 8, Harding was charged with carrying a firearm, a .38 caliber Smith and Wesson revolver, on June 5, 1995, during and in relation to a crime of violence, namely, attempted robbery of a federally insured bank, in violation of 18 U.S.C. § 924(c)(1).

In Count 9, Harding was charged with carrying a firearm on June 5, 1995, after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1).

As indicated, Green, Berry and Harding were jointly tried, and a jury found all three guilty of the respective charges against them. Specifically, Green was found guilty on Counts 1, 2, 3, 4, 5 and 6. Berry was found guilty on Counts 1, 2, 3, 4 and 7. Harding was found guilty on Counts 1, 4, 8 and 9. ¹ Some background is necessary to an understanding of the issues raised on appeal by the three defendants.

The government's evidence showed that four men on December 23, 1994, robbed at gun point the Local Federal Bank in Oklahoma City, Oklahoma. The four were dressed in black from head to foot, including "black gloves, black sweats, [and] ski masks [that] were black." One robber vaulted over the counter and demanded money. Witnesses The government's evidence also showed that on February 17, 1995, a branch of the Bank of Oklahoma in Midwest City, Oklahoma, was robbed at gunpoint by four men dressed in dark sweatsuit-type clothing wearing ski masks and gloves. The robbers used demeaning and vulgar language to the bank employees and absconded with approximately $21,421.

testified that the four were black. The robbers' statements and demands were loud and laced with obscenities and vulgar terms. A security guard for Burns International Security Service was overpowered by the robbers who stole his .38 caliber Smith and Wesson pistol. The robbery lasted "no more than three minutes" and approximately $9,900 was taken by the robbers who then effected a successful escape.

One Raphael Avila was driving in the vicinity of the Bank of Oklahoma at the time of the robbery. At that place and time, a van pulled out in front of the car Avila was driving, causing him to slam on his brakes. Avila then began to follow the van. As Avila was catching up with the van, the driver of the van slammed on his brakes and the occupants of the van jumped from the van and fled on foot. One of them, before disappearing, fired several shots at Avila, his car being hit twice. The van was abandoned on the street. Inside it, Police found a white pillowcase containing approximately $5,110. In the vicinity of the van, the police recovered three expended cartridge casings and a spent bullet. The casings were stamped "NNY 88" and were of a size associated with a .380 automatic pistol cartridge.

Through various tips, the FBI targeted Green and Berry, and agents began to surveil the two. On Friday, June 2, 1995, agents followed Green, Berry, and an unidentified woman, who drove in a white Oldsmobile Cutlass from Oklahoma City to Bank IV in Guthrie, Oklahoma. At the bank, the woman went into the bank and cashed a $10.00 bill. The woman, Adrienne Colbert, testified for the government at trial. She stated that, when she returned to the car from Bank IV, she was specifically asked by Green and Berry whether there was a security guard on duty inside the bank. After leaving the bank, the agents followed Ms. Colbert and Green and Berry back to Oklahoma City.

On Monday, June 5, 1995, the agents observed Green and Berry, both Afro-Americans, in a white Oldsmobile Cutlass drive to 121 Northwest 24th Street in Oklahoma City, where they picked up a third man, also an Afro-American who was later identified as William Harding. The three stopped for gas and then went to "Mother & the Boys Restaurant," a restaurant operated by Green and Berry's mother, Green and Berry being step-brothers. The three stayed at the restaurant for about five minutes and emerged therefrom carrying a tablecloth, which appeared to contain some items. All three then got into the car and drove to Guthrie, Oklahoma, followed by FBI agents.

An employee of Bank IV testified that she saw a white car in front of the bank and that the driver drove by two or three times. An agent, who was at the scene, was able to see the driver's head swivel as if looking at the bank. However, the driver of the vehicle did not stop and proceeded to return to Oklahoma City.

The FBI stopped the defendants' white Oldsmobile Cutlass on an off-ramp of Interstate 44 in Oklahoma City a short time later. A loaded .38 caliber Smith & Wesson revolver was removed from Harding's waistband. An agent, who searched the Cutlass, found and seized ski masks, gloves, sweat suits and a firearm from under the front passenger's seat. Also, a firearm was taken from Berry. In all, three sets of "double" clothing were takin from the defendants' persons, or from the vehicle in which they were driving. A Pietro-Beretta pistol recovered from the defendants' Cutlass, was, according to a government technician, the firearm from which the bullets aimed at Avila's vehicle were fired. The pistol taken from Harding was, according to other government witnesses, the firearm which was taken from the security guard during the robbery on December 23, 1994, of the Local Federal Bank in Oklahoma City.

The defendants were all interviewed by FBI agents, with Green and Berry declining The government also established that all banks involved were federally insured. Also, Berry and Harding stipulated that each had suffered a felony conviction prior to their arrest on June 5, 1995.

to say anything. According to Agents Hunt and Tsiumis, Harding stated that he was approached on June 2, 1995 about doing a "job" in Guthrie for $3,000. Agent Tsiumis testified that Harding told him he received a telephone call on June 5, 1995 at about 8:30 a.m. and was picked up about 15 minutes later. After...