U.S. v. Johnson, s. 92-5008

• Decision Date: 09 September 1993
• Docket Number: 92-5016,Nos. 92-5008,92-5017 and 92-5021,s. 92-5008
• Citation: 4 F.3d 904
• Parties: 39 Fed. R. Evid. Serv. 527 UNITED STATES of America, Plaintiff-Appellee, v. Robert E. JOHNSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Edwin NOTTINGHAM, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dee Dee ROMO, a/k/a Deidre Harrell, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gerald Lee CARROLL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 904

4 F.3d 904

39 Fed. R. Evid. Serv. 527

UNITED STATES of America, Plaintiff-Appellee, v. Robert E. JOHNSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Charles Edwin NOTTINGHAM, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Dee Dee ROMO, a/k/a Deidre Harrell, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Lee CARROLL, Defendant-Appellant.

Nos. 92-5008, 92-5016, 92-5017 and 92-5021.

United States Court of Appeals Tenth Circuit.

Sept. 9, 1993.

Stephen J. Greubel and Robert Nigh, Jr., Asst. Federal Public Defenders, Tulsa, OK each submitted a brief for defendant-appellant Robert Earl Johnson. ^*

Jill M. Wichlens, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, CO, for defendant-appellant Charles Edwin Nottingham.

John H. Hagler, Dallas, TX, for defendant-appellant Dee Dee Romo, a/k/a Deidre Harrell.

Robert R. Nigh, Jr., Asst. Federal Public Defender (Stephen J. Greubel, Asst. Federal Public Defender on the brief), Tulsa, OK, for defendant-appellant Gerald Lee Carroll.

Susan W. Pennington, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with her on the brief), for plaintiff-appellee U.S.

Before McKAY, Chief Judge, GODBOLD, ^** and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Robert Earl Johnson, Charles Edwin Nottingham, Gerald Lee Carroll, and Dee Dee Romo, also known as Deidre Harrell, ¹ appeal their convictions for conspiracy to commit bank robbery, 18 U.S.C. Sec. 371 (1988), and bank robbery, 18 U.S.C. Sec. 2113(a) and (d) (1988); id. Sec. 2(b) (1988). ² Mr. Johnson and Mr. Carroll were also convicted of possessing a firearm in the commission of a crime of violence, 18 U.S.C.A. Sec. 924(c) (West Supp.1993). Defendants appeal their convictions and sentences on various grounds. ³ We affirm the convictions and remand for resentencing of Mr. Nottingham and Ms. Harrell to maximum sentences on count one where their current sentences are excessive.

I.

In the original indictment, Monty Wood was also charged in connection with the bank robbery. Shortly after his arrest, Mr. Wood approached the government on the advice of his counsel, Ronald Mook, and indicated his willingness to cooperate. The government did not offer Mr. Wood a deal at that time. Mr. Mook and Mr. Wood then decided to tape record Mr. Wood's telephone calls with other members of the conspiracy. Mr. Wood subsequently pled guilty to conspiracy to rob a bank and testified against defendants at trial. The following facts are primarily taken from his testimony.

Ms. Harrell, a friend of Mr. Wood, was employed as a vault teller at the Cimarron Federal Savings and Loan Association and has worked at several other banks in the Tulsa area. Several weeks before the robbery, Ms. Harrell was discussing financial problems with Mr. Wood and told him that for "a couple of thousand dollars we could turn somebody onto a lot of money." Rec., vol. XII, at 394-95. She said that she was talking about the bank where she worked. A few days after that conversation, Mr. Wood met with Mr. Nottingham and relayed what Ms. Harrell had said. Mr. Nottingham said he thought he knew someone who could do the job.

Mr. Wood then contacted Ms. Harrell to find out if she was serious and to gather specific details. Ms. Harrell said she was serious and proceeded to explain to Mr. Wood how to go about robbing the bank. She told him that she was the vault teller, that the bank cameras did not work, that the ten dollar bills had dye packs, and that the employees had been instructed not to trigger the alarm until after a robbery was finished. She also told him that she did not want to know when a robbery was planned so that she would be able to be surprised. Mr. Wood relayed this information to Mr. Nottingham, who said he knew two people who could do the robbery, Mickey and Jamar. Mr. Wood identified Mickey as codefendant Mr. Johnson, and Jamar as codefendant Mr. Carroll.

On the morning of the robbery, Mr. Nottingham arrived at Mr. Wood's house along with Mickey and Jamar. The stop at Mr. Wood's was not planned, and occurred because the stolen automobile defendants intended to use in the robbery had broken down. All three men entered Mr. Wood's bedroom, and Mr. Wood told them to take his brother's black Trans Am to rob the bank.

Mr. Nottingham intended to have Mr. Johnson and Mr. Carroll rob the bank while he waited for them in the getaway car. As planned, Mr. Johnson and Mr. Carroll entered the bank during the lunch hour and ordered everyone to lie down. An employee of the bank testified at trial that the robber bypassed the two teller stations and went around the counter and through a door to Ms. Harrell. Mr. Johnson directed Ms. Harrell to the vault drawer and told her to fill up a pillowcase. At one point, Ms. Harrell reached for the dye pack and bait money, but Mr. Johnson hit her hand with the gun and she did not give them to him. Later she hit her hand on the sink in the bathroom to make it look worse. After the money was placed in the bag, both men left the bank in the black Trans Am. There are no photographs of the robbers because the video surveillance equipment in the bank did not work.

After the robbery, Mr. Nottingham and Kenneth Thompson, who later testified for the government, arrived at Mr. Wood's girlfriend's apartment with a duffel bag containing approximately $10,000 in denominations of twenties, fives, and ones. The money was counted and $5000 was given to Mr. Wood. Mr. Nottingham told Mr. Wood that Mickey and Jamar had already taken their share. Mr. Wood told Mr. Nottingham that he would give money to Ms. Harrell, but Ms. Harrell never received any. Both Mr. Wood and Mr. Thompson saw two guns, a .38 and a .45, inside Mr. Nottingham's duffel bag containing the money.

As noted above, Mr. Wood and Mr. Mook decided to record Mr. Wood's telephone calls. The recording device was placed on Mr. Wood's phone on June 21, 1991, by Mr. Mook's private investigator. Conversations were recorded between Mr. Wood and Mr. Nottingham, and between Mr. Wood and Mr. Carroll. The calls were initiated by either Mr. Nottingham or Mr. Carroll, and all of the recordings were made after these defendants were indicted. The recording device was removed on August 15, 1991. The recordings were transcribed by Mr. Mook's secretary, and eventually were given to the government. In addition, Mr. Wood recorded two conversations with Ms. Harrell before she was charged, one over the phone ⁴ and the other in a face-to-face conversation where Mr. Wood carried a recording device.

Tapes of the recordings were played for the jury and were introduced into evidence. In a conversation between Mr. Nottingham and Mr. Wood, they referred to the "little girl." When asked what "little girl" he was referring to Mr. Wood replied, "Dee Dee Romo [Ms. Harrell]." Rec., vol. XIII, at 469. Mr. Wood also acknowledged referring to Mickey and Jamar during a conversation with Mr. Nottingham. During one conversation, Mr. Wood told Ms. Harrell, "the whole clan's in." Id. at 510. He testified that the "clan" he was referring to was "Charlie and Jamar and Mickey, everybody that had anything to do--that was involved in the bank robbery." Id. Mr. Wood also testified regarding what Mr. Nottingham told him immediately after the robbery:

Charlie told me that he was sitting there in his car, in the second car, and when Mickey and Jamar had come around the corner that there was a radar detector on my brother's dash, his car, and it went off, and Charlie said it scared them, and they parked the car and they got out, and they got in Charlie's car, got on the floor, and then Charlie proceeded to take them wherever it was he took them.

Id. at 518. Finally, during a taped conversation between Mr. Wood and Mr. Carroll, the latter worried about who might be talking to the authorities and speculated it might be Kenneth Thompson, who had accompanied Mr. Nottingham to Mr. Wood's apartment on the day of the robbery.

After the robbery, the government interviewed several persons. During Agent Bill Brown's interview of Ms. Harrell, she said she did not recognize Mr. Wood when she was shown a photograph of him. Agent James Malloy subsequently interviewed Ms. Harrell about the robbery, and she explained to him that she had not recognized the photograph of Mr. Wood previously because she knew Mr. Wood had longer hair. During an interview with Detective Charles Folks of the Tulsa Police Department, Ms. Harrell stated that she had known Mr. Wood for several years. Kenneth Thompson testified that while Mr. Nottingham and Mr. Wood were sorting the money after the robbery, they discussed how "2,500 goes to the girl." Rec., vol. XIV, at 732-33. He also testified that, prior to the robbery, Mr. Nottingham told him about a "job" that Mr. Wood had and that it was an "inside job". Id. at 743.

Linda Carroll, Mr. Carroll's wife, admitted that she and two males purchased a 1977 Cutlass Oldsmobile for $1,200 in cash. The owner of the car lot, Brian Jacobs, testified that Ms. Carroll, accompanied by two males, purchased the car with cash, in large denominations, which she retrieved from a brown paper bag. Deputy Marshal Paul Thielen testified that Mr. Johnson's appearance had changed in the week prior to trial. He had cut his hair and told Deputy Marshal Thielen "they won't be able to identify who robbed the bank." Id. at 796-97. Ms. Harrell told Teresa Barber, another employee at the bank, that she believed Mr. Wood was involved in the robbery and that she thought the getaway car belonged to Mr. Wood's brother.

Prior to the introduction of the conversations recorded by Mr. Wood, an evidentiary hearing was held to address whether Mr. Nottingham's and Mr. Carroll's Sixth Amendment right to counsel had been violated. Mr. Mook and Mr. Wood both testified. The district court held that while defendants' right to co...