U.S. v. Hankins

• Decision Date: 26 April 1991
• Docket Number: No. 90-1046,90-1046
• Citation: 931 F.2d 1256
• Parties: 32 Fed. R. Evid. Serv. 1158 UNITED STATES of America, Appellee, v. Larry Wayne HANKINS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1256

931 F.2d 1256

32 Fed. R. Evid. Serv. 1158

UNITED STATES of America, Appellee, v. Larry Wayne HANKINS, Appellant.

No. 90-1046.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 14, 1990.

Decided April 26, 1991.

Susan Hunt, Kansas City, Mo., for appellant.

Michael Jones, Asst. U.S. Atty., Springfield, Mo., for appellee.

Before FAGG and BEAM, Circuit Judges, and ROY ^*, Senior District Judge.

BEAM, Circuit Judge.

Larry Wayne Hankins was convicted of armed bank robbery, in violation of 18 U.S.C. Sec. 2113(a), (d) (1988); use of a firearm during a crime of violence, in violation of 18 U.S.C. Sec. 924(c)(1); and escape from federal custody, in violation of 18 U.S.C. Sec. 751(a). He appeals from his convictions, claiming, inter alia, (1) that there was insufficient evidence to convict him of armed bank robbery and use of a firearm, (2) that the district court erred in admitting evidence of his escape, (3) that the district court erred in failing to give certain jury instructions, and (4) that the district court erred in assessing a two-level increase under the guidelines for obstruction of justice. After filing his brief on appeal, Hankins submitted a motion to this court for stay of the district court's restitution order. We affirm Hankins's convictions but remand to the district court for resentencing and consideration of the matter of restitution.

I. BACKGROUND

On Monday, April 17, 1989, the Stone County National Bank in Cape Fair, Missouri, was robbed by two people shortly after closing time (3:00 p.m.). The bodies of the robbers were completely covered with clothing, including face masks and gloves. They gained entry to the bank by shooting the locked, glass front door with a shotgun. They left a spent, twelve-gauge shotgun shell on the floor with the shattered glass of the door. Once inside, the robbers instructed a lone bank teller to empty the contents of the cash drawer. From this drawer, the robbers received $2,007, including ten twenty-dollar "bait bills" (i.e., bills from which the serial numbers had been recorded beforehand). Both entering and leaving the bank, the robbers likely walked through the broken glass of the front door.

The bank teller saw the robbers drive away in a maroon and gray pickup truck with a distinctive bumper sticker on the tailgate. Another witness later reported seeing a pickup truck matching that description driving just outside of town at about 3:00 p.m. The truck was being driven somewhat erratically by a person wearing a dark-colored ski mask. The driver was alone. The pickup truck, which had been stolen, was later located in a shed just off Peebles Road, a short distance from where it was last sighted. Peebles Road leads to a group of homes in an area known as Peebles Point, which is about four miles from the Stone County National Bank.

Witnesses at Peebles Point told investigators that since the last week of March 1989 they had observed a man staying at a mobile home owned by Jewell and Robert Brownie, a sister and brother-in-law of Hankins. (The Brownies' trailer is less than one mile from the shed in which the stolen pickup truck was found.) The witnesses became suspicious of this man because of his schedule and activities. From a photographic lineup, they identified Billy Hankins, the appellant's brother, as the man staying at the trailer home. They also reported that the man had been visited the weekend prior to the robbery by a white male. Larry Hankins is a white male. One witness said that Larry Hankins "resembled" the other man at the trailer. The witnesses also reported seeing a late 1970s-model Chevrolet, with a maroon body and white top, parked at the Brownies' trailer. One witness noticed that the car had Oklahoma license plates. Larry Hankins drove a 1976 Chevrolet Malibu, with a maroon body and a white top--and he had Oklahoma license plates on the car. Hankins's next-door neighbor in Quapaw, Oklahoma, said she did not see Hankins or his car at home the day of the robbery or the weekend prior to the robbery. (She did see Hankins's wife and children, however, during this time period.) The next-door neighbor said she did see Hankins and his car on the morning of Tuesday, April 18, 1989--the day after the robbery.

Further investigation revealed that on April 19, 1989, the owner of the A-Able Bonding Company in Springfield, Missouri, received $150 cash from Hankins as payment for a bond debt. This payment contained two twenty-dollar bait bills taken during the bank robbery. In addition, on the same day, an attorney in Springfield, received a payment of $500 ($350 in cash and $150 by a check drawn from an account of Hankins's mother) from Hankins and his wife, Vickey. This payment also included two bait bills. Shortly after Hankins spent these bait bills, his Chevrolet Malibu was stopped by law enforcement officers and he was arrested. A later search of the car revealed a loaded, twelve-gauge shotgun shell in the trunk and--on the floorboard of the passenger's side--a paper bag containing ten loaded, twelve-gauge shotgun shells. Investigators also found pieces of glass on the carpet in the front seat area in the car. Some of these pieces of glass were found to have certain characteristics in common with the glass from the front door of the bank.

On the morning of April 27, 1989, seven days after being confined in the Greene County jail in Missouri, Hankins escaped from custody. He was found later the same day and returned to custody. In July 1989, a three-count indictment was returned by a federal grand jury, charging Hankins with the robbery, use of a firearm, and escape. Prior to trial, Hankins pleaded guilty to the escape charge. A jury trial began on September 5, 1989, for the remaining two charges and on September 8, 1989, Hankins was found guilty. Because of Hankins's escape from custody, the district court imposed a two-level increase under Sec. 3C1.1 of the sentencing guidelines for obstruction of justice on the bank robbery charge.

II. DISCUSSION

A. Sufficiency of the Evidence

Hankins argues that there was insufficient evidence to convict him of armed bank robbery and, therefore, that the district erred in denying his motion for judgment of acquittal. Hankins contends that the bait bills were the only evidence produced by the government to prove that he was present at the bank and participated in the robbery. We disagree. The bait bills were not the only evidence against Hankins and the total evidence--although not overwhelming--was sufficient to convict.

We apply familiar principles in our review for sufficiency of evidence. The evidence is considered in the light most favorable to the government and the government is entitled to all reasonable inferences that support the jury's verdict. United States v. Marin-Cifuentes, 866 F.2d 988, 992 (8th Cir.1989). Each element of the crime may be proven by circumstantial as well as direct evidence. Id. We do not judge the credibility of witnesses. United States v. Williams, 897 F.2d 1430, 1432 (8th Cir.1990). And the evidence need not exclude every reasonable hypothesis except guilt; the evidence is sufficient if it will convince a trier of fact that the defendant is guilty beyond a reasonable doubt. Marin-Cifuentes, 866 F.2d at 992.

The most significant evidence against Hankins is that he was in possession of four of the ten twenty-dollar bait bills within forty-eight hours of the bank robbery. A reasonable inference from this possession of recently stolen money is that Hankins participated in the robbery. In United States v. Nabors, 762 F.2d 642 (8th Cir.1985), we noted that

the possession of property recently stolen, if not satisfactorily explained, "is ordinarily a circumstance from which a jury may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession not only knew it was stolen property, but also participated in some way in the theft of the property."

Id. at 653 (quoting United States v. Johnson, 563 F.2d 936, 940-41 (8th Cir.1977), cert. denied, 434 U.S. 1021, 98 S.Ct. 746, 54 L.Ed.2d 768 (1978)). Hankins's only plausible explanation, in his testimony at trial, for how he received the bait bills, was that on Tuesday, the day after the robbery, a friend of his brother Billy met him at a roller skating rink and gave the bills to him as payment for a "dirt bike" purchased the year before. See Trial Transcript at 411-15. The jury evidently rejected Hankins's account.

In addition, when the evidence is viewed in the light most favorable to the government, there are other facts or circumstances that support the jury's verdict. See United States v. Jones, 418 F.2d 818, 827 (8th Cir.1969) (appellant's possession of bait bills stolen during an armed bank robbery the day before required corroborating evidence in order to convict the appellant of crime). Although there was some evidence that Hankins had legitimate sources of money during the month or so prior to his arrest, there was also some evidence of Hankins's impecuniosity in the months prior to the robbery and at the time of his arrest (i.e., financial affidavits Hankins signed after his arrest). Trial Transcript at 438-40. Thus Hankins's payments to the bond company and his attorney (totalling $500 in cash) two days after the bank robbery are probative of whether he participated in the crime. See United States v. Pensinger, 549 F.2d 1150, 1152 (8th Cir.1977) (unexplained evidence of defendant's wealth, especially when there is a showing of impecuniosity prior to the crime, is relevant and admissible); United States v. Morris, 647 F.2d 568, 572 (5th Cir.1981) (same; evidence of impecuniosity not overwhelming). Hankins told the owner of the A-Able Bonding Company that he earned the money for his payment by trimming trees for the city of Quapaw, Oklahoma. Trial Transcript at 165. Testimony from an official for the city of...