U.S.A v. Stenger
| Decision Date | 14 May 2010 |
| Docket Number | 09-1499,09-1694.,No. 09-1330,09-1330 |
| Citation | 605 F.3d 492 |
| Parties | UNITED STATES of America, Appellee,v.James Allen STENGER, Appellant.United States of America, Appellant,v.James Allen Stenger, Appellee.United States of America, Appellee,v.Michael Rowan Knutson, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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Joseph Gilbert Bertogli, Des Moines IA, argued, for appellant Stenger.
Robert Charles Dopf, Urbandale, IA, argued, for appellant Knutson.
Andrew H. Kahl, Asst. U.S. Atty., argued, Des Moines, IA, for appellee.
Before LOKEN, Chief Judge,1 JOHN R. GIBSON, and WOLLMAN, Circuit Judges.
James Allen Stenger and Michael Rowan Knutson were indicted on charges of bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). The men were tried separately and convicted on both the bank robbery and firearm charges.2 In this consolidated appeal, Stenger and Knutson challenge their convictions on numerous grounds. Knutson argues that (1) the district court 3 should have dismissed the superseding indictment in his case because the government engaged in vindictive prosecution; (2) the district court abused its discretion in admitting evidence of uncharged crimes; and (3) the evidence was insufficient to support the firearm conviction. Stenger argues that (1) the district court abused its discretion in admitting testimony from two cooperating witnesses, and that (2) the evidence was insufficient to support both the bank robbery conviction and firearm conviction. The government cross appeals, arguing that the district court erred in sentencing Stenger. We affirm the district court's rulings in all respects.
On May 16, 2007, two men conducted a takeover-style robbery of First Bank in West Des Moines, Iowa. Four bank employees witnessed the robbery, which was also captured on the bank's surveillance video cameras. The witnesses described the first individual, whom the government later alleged to be Knutson, as a thin white male, approximately 6 tall, also wearing a hooded sweatshirt, bandanna, sunglasses, and gloves, and carrying a silver semiautomatic pistol. Importantly, the bank's surveillance cameras showed that the shorter individual's sweatshirt was dark in color with a diamond-shaped logo on the front and a white discoloration on the left sleeve. The taller perpetrator also wore a distinctive pair of black motorcycle boots with a buckle visible in the middle of the boot. Frank Sanchez, a First Bank employee, testified that the taller perpetrator threatened to “cap” him if he did not cooperate. The robbery lasted only a few minutes, after which the two individuals took more than $11,000 and fled through the bank's rear door and toward an adjacent alley. Surveillance video from a nearby business showed a two-toned extended cab Dodge pickup truck driving away from the bank just moments after the robbery.
Investigators initially had few leads regarding the perpetrators' identities. About one month after the robbery, however, the Des Moines police responded to a report of drug activity at a local motel, where they found Stenger, Knutson, and an individual named Dixie Robinson together in a motel room. Stenger's vehicle was parked near the room, and he gave police consent to search it. The police found a leather coat and a loaded black powder revolver, which Knutson admitted that he owned.
On July 26, 2007, an individual robbed the U.S. Bank in Des Moines, Iowa. The police quickly discovered that Robinson was the perpetrator, and when interviewed, she told investigators that Stenger and Knutson had committed the earlier robbery of First Bank. Based on this information, the police began an investigation of Stenger and Knutson, which eventually led to their arrests and searches of the places where they were known to have resided.
A search of Stenger's residence yielded a dark sweatshirt with a triangle-shaped logo on the front and a white discoloration on the left sleeve. The search of Knutson's residence produced black powder gun accessories, motorcycle boots similar to those worn by the taller bank robber, and other incriminating evidence. The police further learned that at the time of the First Bank robbery Knutson had owned a two-toned Dodge pickup truck like the one captured on the surveillance video. They also discovered that Stenger bought a used car the day after the First Bank robbery, using $1,750 in cash to make the purchase.
Stenger and Knutson adopted conflicting defense strategies in which they each conceded the other's involvement in the crime, but challenged their own identities as the second of the two bank robbers. Although Stenger and Knutson were tried separately, the evidence presented at the two trials was largely the same. The evidence included the surveillance videos, testimony from the four First Bank employees, items seized from the searches, and other relevant information uncovered by the investigation. In addition, the government introduced testimony from three cooperating witnesses. Robinson testified that Stenger admitted robbing First Bank and that she had observed Stenger and Knutson arriving at a mutual friend's house on the day of the robbery in a two-toned Dodge pickup truck with a black duffle bag and guns. According to Robinson, Stenger and Knutson waited at the house until dark, before heading to Mason City, Iowa. Two jailhouse witnesses, Antonio Sheley and Gary Wessel, testified about statements that Stenger and Knutson made while incarcerated before trial. Sheley, an acquaintance of Stenger, testified that he had had a conversation with Stenger in which Stenger admitted that he and Knutson had used firearms to rob First Bank and that the police had located a sweatshirt that Stenger wore during the robbery. Sheley also testified that Stenger confessed to hiding the weapon he had used, which Sheley understood to be a 9mm semiautomatic handgun. Wessel, another jail inmate, testified that Stenger admitted committing the robbery with Knutson. Wessel further testified that he had had a conversation with Knutson in which Knutson said to “tell Stenger he had a hundred thousand dollars if he could get him out of this mess.”
The government introduced evidence at both trials of two similar bank robberies that occurred in Mason City on April 10, 2007, and July 14, 2007. Like the First Bank robbery, the Mason City robberies involved relatively small branch banks with several teller windows and a small drive-up window. The Mason City robberies were committed by a single individual who appeared similar to the taller perpetrator in the First Bank robbery. In each instance, the robber conducted a takeover-style robbery wearing a mask and hooded sweatshirt and carrying a black powder revolver. An employee who witnessed one of the Mason City robberies also testified that the robber threatened to “cap” the customers if they refused to sit down and remain calm. FBI Agent Jeff Atwood testified at Stenger's trial that in his experience the perpetrator's use of a black powder revolver was very unusual. Officer Paul Castalline of the West Des Moines Police Department testified at Knutson's trial that the black powder revolver was “particularly unique,” a weapon he did not recall seeing in any robberies during his 30-year career.
The government's theory was that Knutson committed the Mason City robberies as part of a larger crime spree that included the robbery of First Bank. During the time of the robberies, Knutson was in the process of moving to Mason City, and the evidence indicated that he was making regular trips between Mason City and Des Moines. Knutson objected to the introduction of evidence of the Mason City robberies on the ground that they involved uncharged criminal conduct that was unfairly prejudicial to his defense. The district court overruled Knutson's objection, holding that the robberies were intrinsically linked to the charged crimes and that, in any event, the evidence was admissible under Federal Rule of Evidence 404(b).
Following the convictions, Knutson was sentenced to consecutive life sentences as a career offender, pursuant to 18 U.S.C. § 3559. At Stenger's sentencing, the parties agreed that the applicable guideline range was 360 months to life imprisonment. The district court then varied significantly from the guideline range and imposed a sentence of 180 months' imprisonment.
We turn first to Knutson's arguments that (1) the district court erred in refusing to dismiss the government's three-strikes notice and superseding indictment on the grounds of vindictive prosecution, and (2) the district court abused its discretion in admitting evidence of the Mason City robberies.
Knutson was originally charged in a single count indictment with bank robbery and use of a dangerous weapon. In the initial plea negotiations, Knutson and the government discussed the possibility of a twenty-year sentence. The government made clear, however, that it believed Knutson qualified as a career offender and would be subject to mandatory life imprisonment if the government filed a three-strikes notice under 18 U.S.C. § 3559. The government states that it told Knutson it intended to file the § 3559 notice if the parties did not reach an agreement. Knutson alleges that the government insisted on a plea that would result in a twenty-year sentence, including any decrease based on Knutson's substantial assistance. After the plea negotiations ended without an agreement, the government filed additional charges and sought a mandatory life...
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