U.S. v. Rasco

• Decision Date: 12 September 1997
• Docket Number: No. 96-31054,96-31054
• Citation: 123 F.3d 222
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Lee RASCO; Marcus A. Milton, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 222

123 F.3d 222

UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Lee RASCO; Marcus A. Milton, Defendants-Appellants.

No. 96-31054.

United States Court of Appeals,

Fifth Circuit.

Sept. 12, 1997.

Josette Louise Cassiere, Assistant U.S. Attorney, Shreveport, LA, for Plaintiff-Appellee.

E. Daniel Burt, Jr., Shreveport, LA, Rebecca L. Hudsmith, Lafayette, LA, for Defendant-Appellant Jimmy Lee Rasco.

Richard Barry King, Jr., Shreveport, LA, for Defendant-Appellant Marcus A. Milton.

Appeal from the United States District Court for the Western District of Louisiana.

Before KING, DUHE and WIENER, Circuit Judges.

KING, Circuit Judge:

Jimmy Lee Rasco and Marcus Milton were convicted of conspiracy to commit armed bank robbery, armed bank robbery, and carrying and using a firearm during a crime of violence. Rasco was also convicted of possession of a firearm by a convicted felon and, because the armed robbery was his third "serious violent felony," sentenced to life imprisonment pursuant to 18 U.S.C. § 3559(c), the "three strikes" statute. Rasco challenges his sentence on the grounds that the "three strikes" statute is unconstitutional and inapplicable in this case. We hold that § 3559(c) does not violate either separation of powers or ex post facto principles and that the district court properly applied § 3559(c) to Rasco in this case. We further hold that the district court properly denied Rasco and Milton's motions for judgment of acquittal or, in the alternative, for a new trial. The judgment of the district court is affirmed in all respects.

I. BACKGROUND

On July 6, 1995, two unidentified black males committed an armed robbery of the Hibernia National Bank on Ellerbe Road in Shreveport, Louisiana, taking approximately $7,300. The two men fled the bank in a Chevrolet Suburban driven by a third black male. Michael G. Moore, Sr. and his son, Michael G. Moore, Jr., were driving by the bank when the Suburban sped out of the bank parking lot in front of their truck. Observing red smoke and money coming out of the Suburban, the Moores followed the vehicle and called 911 from their car telephone. They watched the three men get out of the Suburban and into a Ford Mustang which was later identified as belonging to defendant Jimmy Lee Rasco. The Moores attempted to follow the Mustang but lost the trail. The police found the Mustang abandoned in a wooded area and, shortly thereafter, arrested Vincent West within the perimeter they had established around the vehicle. The police questioned two juveniles, Robert Taylor and Elton Kimble, who were nearby. The youths reported that a black male had offered to buy a bicycle from them with a $100 bill and provided a general description of the man. Based on this description and the use of the Ford Mustang, the police eventually arrested Rasco. Rasco denied any involvement in the case.

A federal grand jury indicted Rasco and West for armed bank robbery, use of a firearm during a crime of violence, and possession of a firearm. On October 3, 1995, the government filed a Notice and Information pursuant to 18 U.S.C. § 3559(c), commonly known as the "three strikes you're out" provision, which gave notice that Rasco had two prior "serious violent felony" convictions and that he was subject to mandatory life imprisonment if convicted of a third.

West pleaded guilty to the charges in the indictment and agreed to cooperate with the government. On January 10, 1996, the grand jury returned a superseding indictment that charged Rasco and defendant Marcus A. Milton with conspiracy to commit armed bank robbery in violation of 18 U.S.C. §§ 371, 2113(a), 2113(d); armed bank robbery in violation of 18 U.S.C. §§ 2, 2113(a), 2113(d); and carrying and using a firearm during a crime of violence in violation of 18 U.S.C. §§ 2, 924(c). The indictment also charged Rasco with possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 2, 922(g)(1), 924(e)(1).

The jury convicted Rasco and Milton on all counts. The district court sentenced Rasco to life imprisonment and a consecutive term of sixty months and ordered restitution in the amount of $2436.16 to Hibernia National Bank. Milton was sentenced to three consecutive five-year terms of imprisonment.

Defendants filed motions for judgment of acquittal or, in the alternative, for a new trial. The district court denied their motions. On appeal, Rasco argues that the "three strikes" statute violates separation of powers and ex post facto principles and that one of the two prior convictions relied upon is not a "serious violent felony" and thus not a proper predicate offense under § 3559(c). Rasco and Milton both contend that the district court erred in denying their motions for judgment of acquittal or a new trial, arguing that (1) the evidence was insufficient to support their convictions, (2) the prosecutor made improper comments during closing argument, and (3) mid-trial publicity prejudiced the jury. In connection with his argument concerning trial publicity, Rasco further contends that the district court erred in denying his request for full attorney-conducted voir dire. We conclude that each of these arguments is without merit.

II. DISCUSSION

A. The "Three Strikes" Statute

Congress enacted the "three strikes" statute as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796. Codified as 18 U.S.C. § 3559(c), this statute imposes mandatory life imprisonment on a person convicted of a "serious violent felony" in a federal court if

(A) the person has been convicted (and those convictions have become final) on separate prior occasions in a court of the United States or of a State of--

(i) 2 or more serious violent felonies; or

(ii) one or more serious violent felonies and one or more serious drug offenses; and

(B) each serious violent felony or serious drug offense used as a basis for sentencing under this subsection, other than the first, was committed after the defendant's conviction of the preceding serious violent felony or serious drug offense.

18 U.S.C. § 3559(c). The statute defines "serious violent felony" to include several enumerated offenses (including robbery pursuant to § 2113) as well as

any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense.

18 U.S.C. § 3559(c)(2)(F). We review the constitutionality of a federal statute and the district court's interpretation of a statute de novo. See United States v. Bailey, 115 F.3d 1222, 1225 (5th Cir.1997); United States v. Barlow, 41 F.3d 935, 942 (5th Cir.1994), cert. denied, 514 U.S. 1030, 115 S.Ct. 1389, 131 L.Ed.2d 241, and cert. denied, 514 U.S. 1087, 115 S.Ct. 1804, 131 L.Ed.2d 730 (1995).

Rasco first argues that, by providing for mandatory life imprisonment, § 3559(c) removes sentencing discretion from the court and vests it with the prosecution in violation of the doctrine of separation of powers. Rasco maintains that judicial discretion in sentencing "is essential to preserve the Constitutionally required fundamental fairness of the criminal justice system." Although the judiciary has exercised varying degrees of discretion in sentencing throughout the history of this country's criminal justice system, it has done so subject to congressional control. The Supreme Court has stated unequivocally that "Congress has the power to define criminal punishments without giving the courts any sentencing discretion." Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 1928, 114 L.Ed.2d 524 (1991). In affirming the constitutionality of the federal sentencing guidelines and the delegation of sentencing authority to the Sentencing Commission, the Supreme Court recognized that "Congress, of course, has the power to fix the sentence for a federal crime, and the scope of judicial discretion with respect to a sentence is subject to congressional control." Mistretta v. United States, 488 U.S. 361, 364, 109 S.Ct. 647, 650-51, 102 L.Ed.2d 714 (1989) (citation omitted). The power to fix sentences rests ultimately with the legislative, not the judicial, branch of the government and thus the mandatory nature of the punishment set forth in § 3559 does not violate the doctrine of separation of powers. See United States v. Washington, 109 F.3d 335, 338 (7th Cir.1997) (holding that § 3559(c) does not offend principles of separation of powers) cert. denied, --- U.S. ----, 118 S.Ct. 134, --- L.Ed.2d ---- (1997).

Rasco next contends that § 3559 violates the Ex Post Facto Clause of the Constitution, which prohibits the imposition of "a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798); see also Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 963-64, 67 L.Ed.2d 17 (1981) ("The ex post facto prohibition forbids the Congress and the States to enact any law 'which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.' " (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26 (1866))(footnote omitted)).

The Supreme Court has held that recidivist statutes not unlike that at issue here do not violate the Ex Post Facto Clause. See Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948) ("The sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one."). This circuit has likewise rejected ex post facto challenges to recidivist statutes. See United...