U.S. v. Mack

• Decision Date: 03 May 2001
• Docket Number: No. 99-4177,99-4177
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee. v. Curtis N. Mack, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 548

258 F.3d 548 (6th Cir. 2001)

United States of America, Plaintiff-Appellee. v. Curtis N. Mack, Defendant-Appellant.

No. 99-4177

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: May 3, 2001

Decided and Filed: July 26, 2001

Appeal from the United States District Court for the Southern District of Ohio at Columbus, No. 98-00162--James L. Graham, District Judge. [Copyrighted Material Omitted] Daniel Allen Brown, ASSISTANT UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee.

David J. Graeff, Westerville, Ohio, for Appellant.

Before: SILER and GILMAN, Circuit Judges; DUGGAN, District Judge.^*

OPINION

DUGGAN, District Judge

On May 28, 1999, a jury found Curtis N. Mack guilty of three counts of armed bank robbery, 18 U.S.C. § 2113(a) & (d), three counts of using or carrying a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c), and six counts of unarmed bank robbery, 18 U.S.C. § 2113. Defendant has filed a timely appeal. For the reasons stated below, we AFFIRM.

Background

Defendant originally accepted a plea agreement under which he pled guilty to two counts of armed bank robbery and one count of using a firearm in connection with a crime of violence, in exchange for which all other counts of the indictment were to be dismissed. Defendant subsequently moved to withdraw his guilty plea. According to Defendant, he accepted the plea only because he believed that he would not receive a fair trial on account of his race, and because he felt overwhelmed by the forces against him. After a hearing on April 15, 1999, the district court granted Defendant's motion and the matter was set for trial on May 24, 1999.

On May 7, 1999, counsel for Defendant filed a motion to withdraw, asserting that Defendant had lost confidence in him. A hearing was held the same day. During the hearing, the district court specifically asked Defendant whether he had lost confidence in his attorney and wanted him to withdraw. Defendant responded:

I want him to continue with my case. I just need to - - I need to maybe see him more. I have never doubted his abilities to represent me. It's just that I had some aspects of my case that I felt I needed to talk to him about; and it just seemed like it was getting closer and closer to my trial, and my questions were going unanswered. It's not that I've lost confidence in my attorney.

(J.A. 73). Based upon Defendant's answer, the district court denied counsel's motion to withdraw.

As scheduled, trial commenced on May 24, 1999. The Government called several eyewitnesses during the five day trial. The jury returned a verdict of guilty as to all counts charged in the indictment. Defendant was sentenced to 125 months imprisonment on each bank robbery charge, to run concurrently; 60 months imprisonment on the first § 924(c) charge, to run consecutive to the bank robbery sentences; and 240 months on the remaining two § 924(c) charges, to run consecutive to each other and to all other sentences; essentially amounting to a total sentence of 55 years imprisonment.

Discussion

Defendant appeals his convictions on four grounds: (1) the Government failed to prove "operability" within the definition of firearm under 18 U.S.C. § 921(a)(3) & 924(c), (2) the district court erred by allowing evidence of a subsequent unindicted bank robbery as "similar acts" evidence under Rule 404(b) of the Federal Rules of Evidence, (3) the district court erred in denying defense counsel's motion to withdraw, and (4) the district court erred in allowing Defendant to withdraw his guilty plea. For the following reasons, we find Defendant's arguments to be without merit.

1. "Operability" under § 924(c)

Defendant first asserts that the trial court erred in denying his Rule 29 motion for acquittal on the three § 924(c) charges. We review sufficiency-of-the-evidence claims by determining "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find the elements of the crime beyond a reasonable doubt." United States v. Hernandez, 227 F.3d 686, 694 (6th Cir. 2000) (citing United States v. Abdullah, 162 F.3d 897, 903 (6th Cir. 1998)).

In general, § 924(c) provides for an additional penalty whenever a defendant uses, carries, or possesses a "firearm" during and in relation to any crime of violence. See 18 U.S.C. § 924(c)(1)(A). For purposes of § 924(c), the term "firearm" is defined as "(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device." Id. § 921(a)(3).

Defendant contends that his § 924(c) convictions must be reversed because none of the evidence presented at trial establishes that the firearms were "operable." As this Court has previously stated, "a firearm need not be operable to satisfy the definition of firearm for purposes of 18 U.S.C. § 924(c)." United States v. Bandy, 239 F.3d 802, 805 (6th Cir. 2001) (collecting cases); see also United States v. Yannott, 42 F.3d 999, 1006 (6th Cir. 1994) ("[T]he law is clear that a weapon does not need to be operable to be a firearm.").

Defendant's reliance on the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), as well as this Court's post-Bailey decision in United States v. Moore, 76 F.3d 111 (6th Cir. 1996), fails to persuade us otherwise. Nothing in either Baily or Moore undermines our prior holding that a weapon need not be operable to constitute a firearm under § 921(a)(3).

We are also satisfied that there was ample evidence from which the trier of fact could find, beyond a reasonable doubt, that Defendant carried, used, or possessed a firearm as defined in 18 U.S.C. § 921(a)(3) in relation to a crime of violence, i.e., in connection with the charged bank robberies. Stephen Rice, Defendant's accomplice in the first robbery, testified that Defendant provided him with a .38 caliber handgun. Various bank tellers testified that they observed the firearm during the robbery, which was readily discernable from the surveillance photographs. Rice also testified that he gave Defendant a chrome Lorcin 9 millimeter pistol for the second robbery, which bank tellers testified they saw Defendant carrying during the robbery. The Lorcin pistol was also admitted into evidence. Similarly, eyewitnesses testified, and surveillance photographs clearly showed, that Defendant carried a handgun during the third bank robbery. A criminalist from the Columbus Police Department testified that the firearm used during the third robbery appeared from the surveillance photographs to possess the usual features of a handgun.

Accordingly, we find that the district court did not err in denying Defendant's Rule 29 motion with respect to the three § 924(c) charges.

2. "Similar Acts" Evidence

Defendant also contends that the district court erred in allowing the Government to present evidence of a subsequent bank robbery as "similar acts" evidence under Rule 404(b) of the Federal Rules of Evidence.

Under Rule 404(b), a court may admit evidence of a defendant's "other" or "similar" bad acts or crimes only if the evidence is probative of a relevant fact, and not to show the defendant's "character" or "propensity" to commit bad acts. United States v. Clemis, 11 F.3d 597, 600 (6th Cir. 1993). Other bad acts may be admissible under Rule 404(b) if relevant to proving "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b).

During trial, the Government moved under Rule 404(b) to introduce evidence of a subsequent unindicted bank robbery on May 6, 1998, for the purpose of proving identity. Unlike the nine bank robberies in question, Defendant does not dispute that he committed the May 6 robbery. Both parties agreed that Defendant was given proper notice. Over Defendant's objection, the district court determined (1) that identity was an issue, (2) that the unindicted bank robbery was sufficiently similar to the charged robberies to be probative of identity, and (3) that the probative value of the proffered evidence outweighed its potential for unfair prejudice.

The Rule 404(b) inquiry consists of three parts. First, the trial court must make a preliminary determination as to whether sufficient evidence exists that the prior act occurred. Second, the district court must make a determination as to whether the "other act" is admissible for a proper purpose under Rule 404(b). Third, the district court must determine whether the "other acts" evidence is more prejudicial than probative under Rule 403. United States v. Gessa, 971 F.2d 1257, 1261-62 (6th Cir. 1992). Defendant, who pled guilty to the May 6 robbery in state court, does not dispute the first step of the Rule 404(b) inquiry, i.e., that the May 6 robbery occurred. Instead, Defendant challenges the second and third steps of the district court's inquiry, i.e., whether the May 6 robbery was admissible for a proper purpose under Rule 404(b), and whether the May 6 robbery was more prejudicial than probative.

Defendant asserts that the district court erred in determining that the May 6 robbery was sufficiently similar to the charged robberies to be relevant to the issue of identity. We review the district court's determination that the May 6 robbery was admissible under Rule 404(b) to show Defendant's identity for abuse of discretion.¹ Trepel v. Roadway Express, Inc., 194 F.3d 708, 716 (6th Cir. 1999) (explaining that per the United States Supreme Court's decision in General Electric Co. v. Joiner, 522 U.S. 136, 142-43, 118 S. Ct. 512, 517, 139 L. Ed. 2d 508 (1997), all evidentiary rulings are to be reviewed under an abuse of discretion standard).

The record reflects that the district court gave careful and extensive...