U.S. v. Summers

Decision Date21 July 2005
Docket NumberNo. 04-2195.,No. 04-2121.,04-2121.,04-2195.
Citation414 F.3d 1287
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gene Alan SUMMERS, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Marvin Thomas, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Laura Fashing, Assistant U.S. Attorney, (and David C. Iglesias, United States Attorney, on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Dennis W. Montoya, Montoya Law, Inc., Rio Rancho, NM, for Defendant-Appellant Gene Alan Summers.

Robert J. Gorence, Robert J. Gorence & Associates, P.C., Albuquerque, NM, for Defendant-Appellant Marvin Thomas.

Before SEYMOUR, KELLY, and TYMKOVICH, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

We have combined these separate appeals solely for the purpose of disposition. Defendants-Appellants Gene Alan Summers and Marvin Thomas appeal their convictions for bank robbery and aiding and abetting, 18 U.S.C. §§ 2113(a) and 2, and conspiracy to commit bank robbery, 18 U.S.C. §§ 371 and 2113(a). Individually, Mr. Summers argues that the evidence adduced at trial was insufficient to support his convictions and Mr. Thomas argues that the admission of testimonial hearsay violated his Sixth Amendment confrontation right under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Collectively, both argue that the alleged suppression of exculpatory evidence mandates reversal under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Our jurisdiction arises under 28 U.S.C. § 1291. We reverse Mr. Summers convictions on the ground that insufficient evidence existed to support the jury's verdict. We affirm Mr. Thomas's convictions.

Background

On February 27, 2003, Omar Mohammed and Curtis Dwayne Frazier robbed a branch of the Bank of America in Albuquerque, New Mexico.1 After seizing $29,415.40 in cash and cash equivalents, Mohammed and Frazier escaped the scene in a gold Acura automobile. A witness testified that the Acura began moving as Mohammed and Frazier entered the vehicle, thereby implying the existence of an unidentified accomplice. IV R. at 160. The automobile, which had been stolen four days prior to the bank robbery, was later found in the Vista Montano Apartments located a short distance from the bank.

The Vista Montano Apartments are adjacent to the Pinnacle View Apartments. Shortly before the bank robbery, the Pinnacle View Apartments manager observed three individuals enter the apartment complex after parking the Acura outside the main gate. Their activity aroused her suspicions, and she requested that the complex's maintenance workers "see where they were going, what apartment they were going to." IV R. at 178. The maintenance workers observed the individuals enter Apartment 2013 with a black bag. Id. at 234. Apartment 2013 was rented to Adrienne McCastle. Id. at 181. McCastle's boyfriend, Mr. Marvin Thomas, also stayed at the apartment though he was not a party to the lease. Id. at 183. Five to ten minutes later, maintenance workers observed the three individuals leave in the company of Mr. Thomas. IV R. at 248-49; V R. at 32. However, as demonstrated at trial the workers were unable to identify Mr. Summers as one of the individuals in the group. IV R. at 258-59, 260; V R. at 32, 41. The four individuals left the apartment complex in a red Ford Escape sport utility vehicle. V R. at 32. Mr. Thomas had rented the vehicle some three days earlier. IV R. at 55. Mr. Thomas returned after five or ten minutes, then left again a short time later. V R. at 33.

During the pendency of these observations, a police officer investigating the theft of the Acura contacted the Pinnacle View Apartments manager. IV R. at 203. The manager informed the officer that she had seen a car matching the description of the stolen automobile, but by the time the officer arrived the vehicle had been moved. Id. at 203-04. Following the officer's departure, maintenance workers informed the apartment manager that the three individuals had returned to Apartment 2013. Id. at 205. The manager relayed the information to the police, and officers established a surveillance of the area. Id. Shortly thereafter, a maintenance worker and police officers observed four individuals exit Apartment 2013 and leave the complex in the red Ford Escape. Id. at 250; V R. at 72, 119. A police detective in an unmarked car followed the sport utility vehicle and was eventually joined by other unmarked units. V R. at 79. After a short pursuit, during which the aptly named Ford Escape exceeded the speed limit by some fifteen miles per hour, officers were successful in stopping the vehicle. Id. at 122-24.

The officers conducted a felony stop, handcuffing and frisking the four occupants of the vehicle. Id. at 88. The occupants were identified as Mr. Summers, Mr. Thomas, Mohammed, and Frazier. A search of the vehicle revealed evidence linked to the bank robbery. Officers discovered $5,142.10 in cash in Mr. Thomas's pockets, including ten "bait bills" subsequently identified by the Bank of America. Id. at 219. Mr. Thomas also possessed a key to Apartment 2013. Id. at 250. Officers also discovered zippered bank bags containing significant quantities of cash or cash equivalents, clothing and latex gloves resembling those used in the robbery, a purple pillowcase containing cash and coins, and a large amount of cash in the cargo area. Id. at 216-18, 237-39, 255.

Although Messrs. Summers and Thomas were apparently silent during the stop and search, Mohammed cannot be described as reticent. When an officer asked Mohammed to identify suspicious items in his front pocket during a pat down, Mohammed replied: "What do you think? It's bank money." Id. at 130. Later, while being led to a police car, Mohammed inquired of an attending officer: "How did you guys find us so fast?" Id. at 144.

A subsequent search of Apartment 2013 revealed additional items connected to the robbery. Officers discovered keys to the stolen Acura and clothing similar to that worn during the bank robbery. Id. at 212-13, 222-23. They also found vault blocks, coin wrappers, cash straps, and torn paperwork from the Bank of America. Id. at 228.

Messrs. Summers and Thomas, along with co-defendants Mohammed and Frazier, were subsequently indicted for bank robbery and aiding and abetting the same under 18 U.S.C. §§ 2113(a) and 2, and conspiracy to commit bank robbery in violation of 18 U.S.C. §§ 371 and 2113(a). On November 21, 2003, co-defendants Mohammed and Frazier pleaded guilty to bank robbery and aiding and abetting. Messrs. Summers and Thomas were subsequently tried and convicted on both counts of the indictment. Following his conviction, Mr. Summers filed a motion for judgment of acquittal on the basis that insufficient evidence existed to support his conviction. The district court denied the motion by written order. Mr. Summers subsequently filed a motion to vacate the guilty verdicts, arguing that the government had withheld exculpatory evidence. Mr. Thomas likewise filed a motion for a new trial, arguing that his Sixth Amendment confrontation right was violated by the admission of a testimonial hearsay statement and incorporating Mr. Summers' motion with respect to the exclusion of exculpatory evidence. The motions were denied.

Discussion
I. Sufficiency of the Evidence with Respect to Mr. Summers' Conviction

Mr. Summers first argues that insufficient evidence existed to support his convictions. We review de novo whether the government presented sufficient evidence to support a conviction. United States v. Dunmire, 403 F.3d 722, 724 (10th Cir.2005). In so doing, we view the facts in evidence in the light most favorable to the government. Id. We will not weigh conflicting evidence or second-guess the fact-finding decisions of the jury. Van Nattan v. United States, 357 F.2d 161, 162 (10th Cir.1966). Rather, our role is limited to determining "whether a reasonable jury could find guilt beyond a reasonable doubt, based on the direct and circumstantial evidence, together with the reasonable inferences to be drawn therefrom." United States v. Smith, 133 F.3d 737, 741-42 (10th Cir.1997).

Viewing the evidence in its entirety, a conviction must be grounded on more than a suspicion of guilt. United States v. Fox, 902 F.2d 1508, 1513 (10th Cir.1990). We have repeatedly iterated that a conviction cannot be sustained if obtained by "`piling inference on inference.'" Dunmire, 403 F.3d at 724 (quoting United States v. Jones, 44 F.3d 860, 865 (10th Cir.1995)). While this rule is oft cited,2 it begs ready definition.

In the civil context, the import of the "inference upon inference" rule has largely been eroded. See Salter v. Westra, 904 F.2d 1517, 1525 (11th Cir.1990); Cora Pub, Inc. v. Cont'l Cas. Co., 619 F.2d 482, 485-86 (5th Cir.1980); see also N.Y. Life Ins. Co. v. McNeely, 52 Ariz. 181, 79 P.2d 948, 955 (1938) (setting forth a construction of the rule that has been adopted in numerous jurisdictions); 1A John Henry Wigmore, Evidence in Trials at Common Law § 41 (Tillers rev.1983) (criticizing the rule in both contexts as "fallacious and impracticable"). In criminal cases, however, its common-sense dictate continues to bear currency. While some courts have rejected a mechanistic interpretation of the rule,3 we find its underpinnings to be sound, arising as they do from the requirement that the government bears the burden to prove its case beyond a reasonable doubt. The government may satisfy this burden, in whole or in part, through the use of circumstantial evidence open to interpretation by the jury. Inferences are necessary and indeed proper in a criminal trial, and "a jury has wide latitude to determine factual issues and to draw reasonable inferences from circumstantial evidence." United States v. McCarrick, 294 F.3d 1286, 1293 (11th Cir.2002). An inference is...

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