U.S. v. Jankowski

• Decision Date: 14 September 1999
• Docket Number: No. 99-1132,99-1352,99-1132
• Citation: 194 F.3d 878
• Parties: (8th Cir. 1999) United States of America, Appellee, v. Michal Jankowski, Appellant. United States of America, Appellee, v. Sylwia Jankowski, Appellant. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 878

194 F.3d 878 (8th Cir. 1999)

United States of America, Appellee, v. Michal Jankowski, Appellant.

United States of America, Appellee, v. Sylwia Jankowski, Appellant.

No. 99-1132, 99-1352

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: September 14, 1999

Filed: October 12, 1999

Appeals from the United States District Court for the Eastern District of Missouri. [Copyrighted Material Omitted] Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BOGUE,¹ District Judge.

BOWMAN, Circuit Judge.

The defendants in this consolidated appeal, siblings Sylwia and Michal Jankowski, were convicted of one count each of stealing federally insured deposits for their roles in an armored car robbery. See 18 U.S.C. 2113(b) (1994 & Supp. III 1997). Sylwia argues that the District Court erred in allowing the Government to introduce evidence that the defendants spoke in Polish and in failing to apply the minor-participant reduction to her sentence calculation. Michal argues that the court erred in rejecting his duress defense and in applying a sentencing enhancement for abuse of a position of trust. In addition, both defendants argue that the court erred in applying a sentencing enhancement for theft from the person of another. We affirm both convictions but reverse and remand for resentencing on the enhancements for abuse of a position of trust and theft from the person of another.

I.

The armored car robbery was an inside job, and Michal Jankowski, a messenger for Security Armored Car, was the insider. On March 2, 1998, Michal was teamed with driver Ronald Felty. At their first stop, a McDonald's in St. Louis County, Missouri, Michal opened the back of the truck and allowed accomplice Troy Bell to take four bags containing over $185,000. While Bell ran with the money to a getaway car driven by accomplice Andre Worthy, Michal acted as if he had just been the victim of a robbery. During the theft, the inculpable Felty remained in the driver's seat, which was separated from the back of the truck by a bulkhead with a plexiglass window.

As it turned out, Felty was innocently present for a robbery coordinated not by three, but four people. Michal's sister Sylwia, who was living with Bell at the time, helped present the robbery plan to Bell and acted as an intermediary between Bell and Michal. Sylwia's role in the robbery was described in detail by Bell at trial. Testifying for the Government, Bell indicated that Sylwia first mentioned the idea of a robbery to him and that she and Michal later presented it in detail. Bell also testified that he heard Sylwia talking on the phone with Michal in Polish and that she then relayed information regarding a possible location for the robbery. Finally, Bell testified that Sylwia provided a gym bag for the money and that she relayed information to Bell on the day of the robbery, saying, "It's time."

With Bell testifying at trial, Michal did not deny his involvement in the robbery. Instead, he attempted to maintain a duress defense. Michal testified that Bell took him to a nightclub and showed him a gun, saying he wanted information (presumably about the armored car route) or Sylwia "would be taken care of." Tr. at 2-283. Michal explained that he was scared to talk to the police because of his family's experience in Poland. After the Government's objection to the reference of national origin, Michal made an offer of proof. Michal's father was beaten and spent five years in jail for participating in the Solidarity movement in Poland. Further, Michal believed that the police would not believe him because he had learned, while studying criminal justice at a community college, that the justice system in the United States does not always work. The District Court rejected Michal's offer of a duress defense because the threat was not imminent and Michal had a reasonable opportunity to go to the police. The court prohibited further mention of Poland and instructed the jury to disregard the evidence of Bell's threats.

The jury convicted Michal and Sylwia of one count each of stealing federally insured deposits. At sentencing, the District Court calculated an offense level of seventeen for Sylwia and twenty-three for Michal. Neither defendant had any criminal history. Accordingly, the court sentenced Sylwia and Michal to twenty-six and fifty- seven months' imprisonment respectively, each sentence being within the guidelines range for their enhanced offense levels.

II.

Sylwia first argues that the District Court erred in allowing Bell to testify that she spoke in Polish on the telephone. Sylwia argues that the admission of this evidence allowed her national origin (Polish) to be used in determining guilt and that such a use is contrary to our decision in United States v. Vue, 13 F.3d 1206 (8th Cir. 1994). We review the District Court's decision to admit this evidence for abuse of discretion. See United States v. Martin, 180 F.3d 965, 966 (8th Cir. 1999).

Vue stands for the proposition that "the admission of testimony tying the ethnic descent of a defendant to the ethnic characteristics of drug dealers in a specific geographic area or a specific type of drug trade is improper." Vue, 13 F.3d at 1213 (reviewing such evidence under Rules 401, 402, and 403 of Federal Rules of Evidence). In the opium smuggling trial of two brothers of Hmong ethnic descent, the Vue trial court admitted extensive testimony concerning the connection between Hmong individuals and opium smuggling. Among other things, the witness estimated that ninety-five percent of opium smuggling cases in the Twin Cities area were "Hmong related." Id. at 1212. This Court found that, in allowing the introduction of this type of evidence, the trial court committed reversible error. See id. at 1213; accord United States v. Rodriguez Cortes, 949 F.2d 532, 540-42 (1st Cir. 1991) (evidence of Colombian nationality used to show criminal association with another Colombian); United States v. Doe, 903 F.2d 16, 21-23 (D.C. Cir. 1990) (evidence that Jamaicans were taking over drug trade).

We find no such error in this case. First, the evidence was relevant to show that Sylwia relayed information about the robbery from Michal to Bell. In addition, the jury reasonably could have inferred that Sylwia spoke in Polish so that she would not likely be understood if overheard by a third party. See Fed. R. Evid. 401, 402. Second, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. See Fed. R. Evid. 403. Unlike Vue, Rodriguez Cortes, and Doe, the disputed evidence here was not linked with any argument or evidence that Sylwia was more likely to have committed the crime because of her national origin. See United States v. James, 30 F.3d 84, 85 (8th Cir. 1994) (per curiam) (distinguishing Vue because references to nationality at trial did not imply "a connection between Jamaican citizenship and the likelihood of involvement in the drug trade").

III.

Sylwia next argues that the District Court clearly erred in refusing to apply a two-level "minor participant" reduction to her sentencing calculation. Section 3B1.2(b) of the United States Sentencing Guidelines provides: "If the defendant was a minor participant in any criminal activity, decrease by 2 levels." U.S. Sentencing Guidelines Manual 3B1.2(b) (1998). The commentary defines a minor participant as "any participant who is less culpable than most other participants, but whose role could not be described as minimal." Id. 3B1.2 commentary (n.3).

Whether a person is a minor participant is a factual determination that we review for clear error. See United States v. Wells, 127 F.3d 739, 750 (8th Cir. 1997). The District Court rejected the minor-participant reduction because Sylwia helped recruit Bell and because she fully understood the nature and extent of the planned robbery.We do not find that the District Court clearly erred in making this finding. Accord United States v. Welch, 97 F.3d 142, 152 (6th Cir. 1996) (affirming rejection of minor-participant reduction for defendant who, among other things, recruited others to traffic drugs), cert. denied, 519 U.S. 1134 (1997); United States v. Sanchez, 908 F.2d 1443, 1449 (9th Cir. 1990) (same). Accordingly, this argument affords Sylwia no basis for a reduction of her sentence.

IV.

Michal first argues that the District Court erred in refusing to allow him to present evidence in support of a duress defense. The District Court based its refusal on Michal's inability to make out a prima facie case of duress. Whether there is sufficient evidence to submit an affirmative defense to a jury is a question of law and thus is subject to de novo review.² See United States v. Scout, 112 F.3d 955, 960 (8th Cir. 1997).

This Court has recognized duress as a viable defense to a charge under 18 U.S.C. 2113. See United States v. Simpson, 979 F.2d 1282, 1287-88 (8th Cir. 1992), cert. denied, 507 U.S. 943 (1993); accord United States v. Mitchell, 725 F.2d 832, 833-35 (2d Cir. 1983). To establish the defense of duress, Michal must show that:

1) he was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury; 2) that he had not recklessly or negligently placed himself in a situation in which it was probable that he would be forced to commit a criminal act; 3) that he had no reasonable, legal alternative to violating the law; and 4) that a direct causal relationship may be reasonably anticipated between the commission of the criminal act and the avoidance of the threatened harm.

United States v. Lomax, 87 F.3d 959, 961 (8th Cir. 1996).

We agree with the District Court's determination that, based on Michal's offer of proof, no reasonable jury could have found that Michal lacked a reasonable, legal alternative to violating the law. Michal could have gone to the police or to his supervisor at...