U.S. v. Johnson

• Decision Date: 01 May 1992
• Docket Number: Nos. 91-2500,91-2501,91-2508 and 91-2737,s. 91-2500
• Citation: 1992 WL 86203,962 F.2d 1308
• Parties: UNITED STATES of America, Appellee, v. Eric Tarrell JOHNSON, Appellant. UNITED STATES of America, Appellee, v. Jacqueline Marie THOMAS, Appellant. UNITED STATES of America, Appellee, v. George Edward WOODARDS, Appellant. UNITED STATES of America, Appellee, v. Reginald WOODARDS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1308

962 F.2d 1308

UNITED STATES of America, Appellee, v. Eric Tarrell JOHNSON, Appellant.

UNITED STATES of America, Appellee, v. Jacqueline Marie THOMAS, Appellant.

UNITED STATES of America, Appellee, v. George Edward WOODARDS, Appellant.

UNITED STATES of America, Appellee, v. Reginald WOODARDS, Appellant.

Nos. 91-2500, 91-2501, 91-2508 and 91-2737.

United States Court of Appeals Eighth Circuit.

Submitted March 11, 1992.

Decided May 1, 1992.

Robert Gerard Malone, St. Paul, Minn., argued, for appellant Eric Tarrell Johnson.

Virginia G. Villa, Minneapolis, Minn., argued, for appellant Jacqueline Marie Thomas.

Michael Saeger, St. Paul, Minn., argued, for appellant George Edward Woodards.

Oral argument was waived in No. 91-2737.

Francis John Magill, Minneapolis, Minn., argued, for appellee.

Before BOWMAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and LOKEN, Circuit Judge.

BOWMAN, Circuit Judge.

Appellants Reginald Woodards, Jacqueline Thomas, and Eric Johnson were convicted in District Court ¹ of conspiracy to commit bank robbery, attempted bank robbery, and use of a firearm during a crime of violence. ² Appellant George Woodards was convicted of conspiracy to commit bank robbery. All appeal their convictions. George Woodards and Johnson also raise sentencing issues. We affirm.

On November 7, 1990, Reginald Woodards, Thomas, Johnson, and their cohorts, ³ including Tracey Jefferson, ⁴ arrived at George Woodards' house in Brooklyn Park, Minnesota after driving from Milwaukee in a van. ⁵ Jefferson testified that Reginald Woodards told him that they were going to Minnesota to get "banked up" and asked for Jefferson's help in stealing two vehicles. Trial Transcript, vol. II at 65. Shortly after George arrived home from work that morning, he, his brother Reginald, Thomas, and Jefferson left the house in George's car, with George driving. Jefferson testified that the group drove around town in preparation for the bank robberies. The car stopped at a jewelry store, which Thomas entered alone and returned from empty-handed after about five minutes. Jefferson testified that Thomas told the group, " 'Ain't nothing in there.' " Trial Transcript, vol. I at 10. The group then proceeded to a parking lot across the street from the Twin City Federal Savings and Loan ("TCF"), whereupon Thomas got out of the car and went into TCF. Jefferson testified that Thomas went into the bank to check the bank's size and look for cameras and guards. The group then drove past another savings and loan institution before returning to George's home.

An hour later, the same people again left in George's car, with George as the driver. The car stopped at a drug store, where Thomas and Reginald Woodards were observed buying some items, which Jefferson said were nylon stockings and yellow rubber gloves. The group then drove to a store where Reginald Woodards and Jefferson were observed purchasing a screwdriver, which Jefferson testified was to help him steal two cars. Next, the group returned to TCF and drove around the block before proceeding to yet another financial institution, where the car parked and an unidentified occupant of the car got out of the vehicle. The group then went back to TCF, where Thomas got out of the car and entered the bank for about a minute. The group next went to First National Bank Anoka ("FNBA"), across the street from TCF, and pulled up to the front of the building and stopped for approximately one minute before returning to George's home. ⁶ During this drive, Reginald Woodards selected TCF and FNBA as the two banks to be robbed, according to Jefferson. That night, Jefferson testified, Reginald Woodards planned the robberies and gave out assignments.

The next morning, November 8, George Woodards drove Jefferson and a juvenile into Minneapolis. George let the two out of his car and drove up and down the street while the two stole a set of license plates from a car. The threesome proceeded to a parking lot, where Jefferson and the juvenile walked up and down the rows of cars before returning to George's car. The trio drove to another parking lot, where Jefferson and the juvenile broke into and stole a vehicle. The two followed George to a different location, where Jefferson stole another vehicle. The three then returned to George's home, each driving a separate vehicle (the two stolen ones and George's car). Jefferson put the stolen license plates on the van, under directions from Reginald Woodards.

Ten minutes later, the entire group left the house in George's car, the van, and the two stolen vehicles, with George leading the way. The caravan proceeded to the intersection where TCF and FNBA are located. The stolen vehicle containing Jefferson and two juveniles pulled into the FNBA parking lot and changed parking locations. When the vehicle parked the second time, directly in front of the FNBA door, the three occupants were arrested. Jefferson was in the driver's seat, wearing a stocking cap. The two juveniles were wearing nylon stockings and stocking caps on their heads. One juvenile was wearing yellow rubber gloves; identical gloves were on the seat next to the other juvenile. One juvenile was wearing a holster with a loaded pistol, owned by Thomas, next to him on the seat. A loaded shotgun was found under the seat of the other juvenile. Jefferson testified that they were at the bank "[t]o rob it." Trial Transcript, vol. I at 23.

Meanwhile, the other stolen vehicle pulled into TCF's parking lot. The vehicle circled the building three times, each time stopping near the front door. At least five different law enforcement vehicles were in the close vicinity, watching the vehicle. On the vehicle's second stop at the front door, both the driver's side door and the passenger's side door were opened and then closed. On the third go-round, the group in the stolen vehicle looked directly at two federal agents parked in the parking lot. The stolen vehicle then left the parking lot, drove away into a traffic jam caused by the arrests of Reginald Woodards (in the van) and George Woodards (in his car), turned on to a side street, and then abandoned their stolen vehicle. Thomas was arrested immediately. Johnson and a juvenile, both wearing hats and yellow rubber gloves, tried to flee. While being chased, the juvenile threw away a loaded shotgun. He was wearing a nylon stocking on his head when caught and arrested. Johnson was also caught and arrested after a chase. A pistol was found in the path where he had run. Testimony at trial indicated that two of the weapons found in these arrests were purchased by an acquaintance of Reginald Woodards and given to him immediately after purchase.

On appeal, the appellants raise a number of issues. Essentially, they boil down to the following arguments: 1) George Woodards claims he should have been tried separately; 2) conspiracy to commit bank robbery is not a crime of violence sufficient to support a firearm conviction pursuant to 18 U.S.C. § 924(c) (1988); 3) the evidence is insufficient to support convictions for conspiracy, aiding and abetting attempted bank robbery, and attempted bank robbery; 4) the verdict should not have been taken by a magistrate judge; 5) George Woodards was sentenced improperly; and 6) Johnson was sentenced improperly.

The first two issues do not merit much discussion. We must affirm a trial court's ruling on a severance motion unless an abuse of discretion causing clear prejudice is shown. United States v. Kindle, 925 F.2d 272, 277 (8th Cir.1991). Generally, in conspiracy cases the alleged co-conspirators should be tried together. United States v. Pou, 953 F.2d 363, 368 (8th Cir.1992). George Woodards has failed to show that he was prejudiced by the District Court's denial of his severance motion. He claims that the guilt of the other appellants "rubbed off" onto him, but does not offer any evidence of this. Indeed, the jury convicted him only of conspiracy to commit bank robbery, while acquitting him of three other charges on which his co-defendants were found guilty. Thus, it is clear that the jury was able to distinguish evidence implicating George Woodards from other evidence implicating only his co-defendants. Cf. United States v. Pecina, 956 F.2d 186, 188 (8th Cir.1992) (a co-conspirator's relatively limited involvement in the conspiracy does not warrant severance). The District Court did not abuse its discretion in denying his motion to sever.

Thomas, Johnson, and Reginald Woodards all claim that their convictions for using a firearm while attempting to commit a crime of violence must be overturned, as the underlying predicate crime listed in the indictment (conspiracy to commit bank robbery) is not a crime of violence. We disagree, being persuaded by our recent decision in United States v. Juvenile Male, 923 F.2d 614, 620 (8th Cir.1991), which reached the well-reasoned conclusion (albeit in dictum) that a conspiracy to commit a crime of violence is itself a violent crime. See United States v. DiSomma, 951 F.2d 494, 496 (2nd Cir.1991) ("conspiracy to commit robbery[ ] is a crime of violence"); see also United States v. Cruz, 805 F.2d 1464, 1474 n. 11 (11th Cir.1986) (conspiracy to commit a crime of violence creates a substantial risk of violence and thus is a crime of violence), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 and 482 U.S. 930, 107 S.Ct 3215, 96 L.Ed.2d 702 (1987); cf. United States v. Luskin, 926 F.2d 372, 379 (4th Cir.) (travelling in interstate commerce with the intent to commit murder is a crime of violence), cert. denied, --- U.S. ----, 112 S.Ct. 68, 116 L.Ed.2d 43 (1991). Because bank robbery is indisputably a crime of violence, conspiracy to commit bank robbery is a predicate crime that satisfies the required crime-of-violence element of section 924(c).

As to the sufficiency of the evidence arguments each appellant raises, the only claim that warrants any discussion relates to...