U.S. v. Mitchell, 96-3260

• Decision Date: 29 May 1997
• Docket Number: No. 96-3260,96-3260
• Citation: 113 F.3d 1528
• Parties: 37 Fed. R. Evid. Serv. 171, 97 CJ C.A.R. 800 UNITED STATES of America, Plaintiff--Appellee, v. Thomas W. MITCHELL, Defendant--Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1528

113 F.3d 1528

37 Fed. R. Evid. Serv. 171, 97 CJ C.A.R. 800

UNITED STATES of America, Plaintiff--Appellee, v. Thomas W. MITCHELL, Defendant--Appellant.

No. 96-3260.

United States Court of Appeals Tenth Circuit.

May 29, 1997.

Rehearing Denied June 30, 1997.

Submitted on the briefs: ^* David J. Phillips, Federal Public Defender, and Timothy J. Henry, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of Kansas, for Defendant-Appellant.

Jackie N. Williams, U.S. Attorney, and Debra L. Barnett, Assistant U.S. Attorney, Office of the U.S. Attorney for the District of Kansas, for Plaintiff-Appellee.

Before ANDERSON, TACHA, and BRORBY, Circuit Judges.

TACHA, Circuit Judge.

Defendant Thomas Mitchell was convicted of bank robbery by intimidation in violation of 18 U.S.C. § 2113(a) and sentenced to 210 months imprisonment. On appeal, Mitchell argues that: (1) there was insufficient evidence regarding the element of intimidation, and (2) the court improperly excluded extrinsic evidence of a prior inconsistent statement to impeach a government witness. Mitchell also challenges his sentence, arguing that the district court erred in: (1) sentencing Mitchell as a career offender, (2) failing to grant a two-level downward adjustment for acceptance of responsibility, and (3) concluding that the court was without authority to depart downward from the applicable sentencing range. We have jurisdiction under 28 U.S.C. § 1291. We reject each of Mitchell's contentions and affirm.

I. SUFFICIENCY OF THE EVIDENCE

Mitchell first contends that there was insufficient evidence to support his conviction of bank robbery by intimidation. "We review the sufficiency of the evidence in the light most favorable to the government to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Spring, 80 F.3d 1450, 1459 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 385, 136 L.Ed.2d 302 (1996) (quotation omitted).

Mitchell argues that the evidence only supports a conviction for the lesser crime of bank larceny, rather than bank robbery by intimidation, because Ms. Angela Muller, the only employee in the bank at the time of the robbery, could not have been intimidated by his actions. Mitchell asserts that after he entered the bank and approached the teller's window, he merely said, "this is a holdup" and "get back." He also asserts that he did not have a weapon or claim to have a weapon, never yelled, never threatened Ms. Muller with injury, and never touched her at any time during the course of his offense. Mitchell maintains that in this situation, the evidence was insufficient to support a finding of intimidation.

In determining whether the evidence is sufficient to support a finding of intimidation in the context of a bank robbery, we look to three factors: (1) whether the situation appeared dangerous, (2) whether the defendant intended to intimidate, and (3) whether the bank personnel were reasonable in their fear of death or injury. United States v. Smith, 10 F.3d 724, 729 (10th Cir.1993) (citing United States v. Slater, 692 F.2d 107, 109 (10th Cir.1982)).

Applying these factors, we conclude that Mitchell's conduct was "aggressive behavior which very well could have been considered as intimidating by the jury." Slater, 692 F.2d at 109. Ms. Muller testified that Mitchell's tone was serious and that she felt threatened by his actions. After Mitchell took the money, he instructed Ms. Muller to go with him. Ms. Muller complied. As they walked toward the back door of the bank, Mitchell "yanked" the phone out of the wall. Once outside, Mitchell ordered Ms. Muller to go back into the bank. She again complied. Ms. Muller testified that because she thought Mitchell might come back inside, she locked the back door and left through the front of the bank to call the police. Under these circumstances, there was ample evidence supporting the element of intimidation.

II. ADMISSIBILITY OF IMPEACHMENT EVIDENCE

Mitchell next contends that the district court erred in refusing to admit extrinsic evidence of a prior inconsistent statement to impeach Ms. Muller's testimony. We review questions concerning the admission of evidence under an abuse of discretion standard. United States v. Bowser, 941 F.2d 1019, 1021 (10th Cir.1991). "In reviewing a court's determination for abuse of discretion, we will not disturb the determination absent a distinct showing it was based on a clearly erroneous finding of fact or an erroneous conclusion of law or manifests a clear error of judgment." Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir.1995).

At trial, the defense sought to impeach Ms. Muller's testimony by introducing a statement contained in a psychological counseling record. The record stated that Ms. Muller "did report that she had some problems with forgetfulness since the above listed event." R. Vol. II, at 120. The defense sought to question Ms. Muller regarding the statement in order to impeach her testimony that she has no trouble remembering the events that took place during the course of the bank robbery. During cross examination of Ms. Muller, the defense counsel asked the following questions:

Q: Your memory, however, has not been the best, has it?

A: I think it's been pretty good.

Q: Okay. But isn't it true that you do have trouble sometimes with your memory and suffer from forgetfulness?

A: No.

R. Vol. II, at 52. At this point, the district court refused to allow defense counsel to question Ms. Muller about the statement contained in the psychological record because of the court's concern that the statement might be privileged. R. Vol. II, at 56. After later concluding that the statement was not privileged, the court allowed the defense to recall Ms. Muller to question her regarding whether she had made the statement. R. Vol. II, at 127. The court stated that if Ms. Muller denied making the statement, then the defense could introduce the statement to impeach her testimony.

After the defense recalled Ms. Muller and asked her about the statement, she testified that she could not recall making the statement to her psychologist. Thereafter, the court refused to allow the statement to be put into evidence. The court stated, "She has not denied making this statement. She basically doesn't think she said so but she can't remember. That's not sufficient in the Court's opinion to have a statement made into the record ... without the explanation of the person who made the statement." R. Vol. II, at 149-150. The defense objected to the court's ruling.

After reviewing the record, we conclude that the statement is properly characterized as a prior inconsistent statement and should have been admitted under Federal Rule of Evidence 613(b). ¹ During cross-examination, Ms. Muller denied having problems with her memory and suffering from forgetfulness. This testimony is directly inconsistent with the statement Ms. Muller allegedly made to her psychologist. Pursuant to Rule 613(b), Ms. Muller was given an opportunity to explain or deny making the prior statement, R. Vol. II, at 146-47, and the prosecution was permitted to interrogate Ms. Muller regarding the statement and her recollection of the events surrounding the bank robbery, R. Vol. II, at 147-48. Ms. Muller testified that she could not remember making the statement, but she confirmed--at the behest of the prosecution--that she clearly remembers the events on the day of the robbery. R. Vol. II, at 146-48. Under Rule 613(b), the defense should have been allowed to introduce extrinsic evidence of the statement to impeach Ms. Muller's testimony. Therefore, the court abused its discretion in excluding extrinsic evidence of the statement.

We conclude, however, that the error was harmless in the context of the entire case against defendant Mitchell. "[E]rror in the admission or exclusion of evidence is harmless if it does not affect the substantial rights of the parties, and the burden of demonstrating that substantial rights were affected rests with the party asserting error." United States v. Arutunoff, 1 F.3d 1112, 1118 (10th Cir.1993) (quotation omitted). A nonconstitutional error is harmless unless it had a substantial influence on the jury's verdict in the context of the entire case, or leaves one in grave doubt whether it had such an effect. United States v. Wilson, 107 F.3d 774, 785 (10th Cir.1997) (citing Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1247-48, 90 L.Ed. 1557 (1946)).

The overwhelming evidence against Mitchell on the element of intimidation included his own testimony regarding his words and actions after he entered the bank. This testimony alone was sufficient for the jury to find the element of intimidation. Moreover, despite the court's exclusion of the extrinsic evidence regarding Ms. Muller's statement, the defense nevertheless was permitted to ask Ms. Muller in the presence of the jury whether she had told her psychologist that she suffered from forgetfulness. Thus, the jury was aware of this attack on Ms. Muller's credibility but apparently chose to believe Ms. Muller when she testified that she was intimidated. In the context of the entire trial, we cannot say that the error had a substantial influence in determining the jury's verdict. Accordingly, we hold that the error was harmless.

III. SENTENCING ISSUES

A. Career Offender Enhancement

The district court classified Mitchell as a career offender under U.S.S.G. § 4B1.1. On appeal, Mitchell challenges that classification, arguing that the district court improperly counted his two prior escape convictions in determining that he was subject to the career offender enhancement. Whether a defendant was erroneously classified as a career offender is a question of law subject to de novo review. United States v. Bennett, 108 F.3d 1315, 1316 (10th Cir.1997).

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