U.S. v. Keller
| Decision Date | 02 November 1990 |
| Docket Number | No. 89-8623,89-8623 |
| Citation | 916 F.2d 628 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Riley Harrington KELLER, III, Millard Lee Smith, Jr., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Rise Weathersby, Federal Defender Program, Inc., Atlanta, Ga., for Keller.
John W. Stokes, Jr., Norcross, Ga., for Smith.
Robert L. Barr, Jr., U.S. Atty., William R. Toliver, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before CLARK and COX, Circuit Judges, and TUTTLE, Senior Circuit Judge.
Defendants, Riley Harrington Keller III, and Millard Lee Smith Jr., appeal their convictions for armed bank robbery, 18 U.S.C. Sec. 2113(a), conspiracy to commit armed bank robbery, 18 U.S.C. Sec. 371, and use of a firearm during an armed bank robbery, 18 U.S.C. Sec. 924(c). 1 Keller and Smith also appeal the sentences imposed by the district court under the Sentencing Guidelines. We affirm Smith's convictions and sentences, and affirm in part and reverse in part Keller's convictions and sentences.
Keller's and Smith's convictions arise from a series of five armed bank robberies committed in the Atlanta suburbs between June 17, 1988, and July 18, 1988. All of the banks robbed were branches of Bank South located in Kroger Supermarkets.
Count One of the indictment alleges that Keller robbed the Bank South branch at 6050 Peachtree Parkway, Norcross, Georgia, on June 17, 1988, by telling the bank teller he had a bomb. Count Two of the indictment alleges that Keller robbed the Bank South branch at 2090 Dunwoody Club Drive, Dunwoody, Georgia, on June 30, 1988, by again telling the bank teller he had a bomb.
Count Three of the indictment alleges that Keller and Smith conspired to rob the Bank South branch at 2180 Pleasant Hill Road, Duluth, Georgia, on July 11, 1988. Count Four of the indictment charges Keller and Smith with the actual robbery of the bank referred to in Count Three. Count Five of the indictment charges Keller and Smith with use of a firearm (a shotgun) in connection with the bank robbery referred to in Count Four.
Count Six of the indictment asserts that Keller, Smith and Robert Wegner, an unindicted co-conspirator, conspired to rob the Bank South branch at 2090 Dunwoody Club Drive, Dunwoody, Georgia, on July 18, 1988. Count Seven of the indictment alleges that Keller, Smith and other individuals actually robbed the bank referred to in Count Six. Count Eight charges Keller and Smith with use of a firearm (a shotgun) during the commission of the bank robbery referred to in Count Seven.
Count Nine asserts that Keller, Smith and Wegner conspired to rob the Bank South branch at 6050 Peachtree Parkway, Norcross, Georgia, on July 18, 1988. Count Ten charges Keller and Smith with actually robbing the bank referred to in Count Nine. In Count Eleven, Keller and Smith are charged with using a firearm (a shotgun) during the commission of the bank robbery referred to in Count Ten.
The government, in proving the charges contained in Counts One and Two, introduced the eyewitness testimony of several tellers who were present during the robberies. All the bank tellers identified Keller as the individual who robbed the two banks. 2 The government also introduced the videotape of the banks' security cameras. The tapes showed Keller robbing the two banks.
In proving the charges contained in Counts Three, Four and Five, the government again introduced the eyewitness testimony of two bank tellers. The bank tellers positively identified Keller as the bank robber. The tellers indicated that Keller entered the bank with a shotgun, demanded the money from their tills, received it and then left the bank. The government introduced testimony that immediately after the bank robbery a metallic blue Chevrolet Impala, containing two white males, was seen being driven out of the supermarket's parking lot. These witnesses all agreed that the car had an extremely loud exhaust noise and accelerated "quicker than a stock car." R.5-293. The witnesses all confirmed that Smith's car was identical to the one seen leaving the parking lot.
The government's evidence showed that at the time of the robbery Keller and Smith were roommates, that Smith frequently drove for Keller because Keller could not drive, that Smith owned a metallic blue Chevrolet Impala that produced a loud exhaust noise, and that no other person had access to Smith's car at the time of the robbery. Most damaging, however, was the testimony of a friend of Smith's. This friend indicated that after July 11, 1988, Smith began to act unusually, turning out the lights in the room and then looking out the window. R.5-393. The friend testified that Smith said that "he [Smith] was waiting for the Feds to come get him." Id.
In proving the charges stemming from the last two bank robberies on July 18, 1988, the government used the testimony of Robert Wegner. Wegner testified that Keller asked him if he would like to make some money helping Keller rob a bank. Wegner agreed and was instructed to be at Smith's house the next day at 1:15 p.m.
The next day Wegner arrived at Smith's house and discussed with Keller and Smith the plan to rob the bank in Dunwoody. The group decided that Wegner would drive Keller to the bank and Smith would drive Keller away from the bank after the robbery. During their discussions, Keller showed Smith and Wegner a shotgun that Keller was to use to commit the robbery. Smith and Wegner were to receive $500.00 and $1,000.00 respectively for their part in the robbery.
As the three men proceeded from Smith's house to the bank, Wegner had second thoughts about driving Keller to the bank. According to Wegner, the three men then agreed that Smith would drive Keller to the bank and Wegner would drive Keller away from the bank. Smith and Keller left Wegner in the parking lot behind the supermarket for about twenty minutes. When Keller returned, he said that he did not get enough money and would need to rob a second bank.
The three men then went to the Bank South branch located on Peachtree Parkway in Norcross. Smith drove Keller to the entrance of the supermarket. Keller got out of Smith's car and proceeded to rob the Bank South branch. Keller then ran back to Wegner's car and was taken by Wegner to Smith's house. Smith returned home a short time after the robbery.
The government again elicited testimony from the bank tellers that Keller was the man who committed the robberies. One teller identified a pair a sunglasses found in Keller's room as the ones worn by the bank robber. A shotgun found in Keller's room was also identified as similar to the one used in the robbery. A supermarket employee identified Smith's car as being at the scene of one of the robberies.
The jury convicted Keller on all eleven counts. The jury convicted Smith on Counts Six, Seven, Eight, Nine, Ten, and Eleven but acquitted him on Counts Three, Four, and Five.
Initially Keller argues that the trial court erred by not granting his motion for judgment of acquittal on Count Three because there was insufficient evidence on which a reasonable juror could find that he conspired with anyone. The inquiry into the sufficiency of the government's evidence produced at trial is a question of law subject to de novo review. United States v. Kelly, 888 F.2d 732, 739 (11th Cir.1989).
The court, however, views the evidence in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government's favor. Id. at 740; United States v. Rosenthal, 793 F.2d 1214, 1225 (11th Cir.1986), cert. denied, 480 U.S. 919, 107 S.Ct. 1377, 94 L.Ed.2d 692 (1987). In order to uphold the lower court's denial of the judgment of acquittal and the jury's guilty verdict, this court need only find that a reasonable factfinder could conclude that the evidence establishes the defendant's guilt beyond a reasonable doubt. Kelly, 888 F.2d at 740; United States v. Holmes, 838 F.2d 1175, 1176 (11th Cir.), cert. denied, 486 U.S. 1058, 108 S.Ct. 2829, 100 L.Ed.2d 930 (1988).
At the outset we agree with the district court's characterization of the evidence as "horribly thin." R.7-600,601. The government presented no direct evidence that affirmatively demonstrated that Keller had conspired with Smith. The evidence on Count Three established that Keller robbed the Bank South branch and then left the bank. A metallic blue Chevrolet Impala with a loud exhaust system, containing two white males, was driven out of the parking lot immediately after the robbery. The government proved Smith owns an automobile matching the description of the one seen leaving the parking lot. Keller was also Smith's roommate during the period of the robberies, and Smith often drove Keller because Keller could not drive. This evidence establishes only that Keller knew Smith and that a car similar to Smith's was near the bank when it was robbed.
The government produced two additional pieces of evidence that when combined with the government's other evidence convinces this court that a reasonable factfinder could find the evidence establishes Keller's guilt beyond a reasonable doubt. First, the government introduced the testimony of Jason Reed, who testified that Smith began to act strangely soon after July 11, 1988, often looking out his window when the lights were off. R.5-393. More important, Reed testified that Smith stated "that he [Smith] was waiting for the Feds to come get him." Id. This incriminating statement greatly reduces the possibility that a car very similar to Smith's just happened to be near the bank at the time of the robbery.
Second, the government clearly...
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