U.S. v. Thornbrugh, s. 89-5166

• Decision Date: 13 April 1992
• Docket Number: 89-5173,Nos. 89-5166,s. 89-5166
• Citation: 962 F.2d 1438
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellants v. James David THORNBRUGH, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1438

962 F.2d 1438

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellants v. James David THORNBRUGH, Defendant-Appellant, Cross-Appellee.

Nos. 89-5166, 89-5173.

United States Court of Appeals Tenth Circuit.

April 13, 1992.

Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo. (Michael G. Katz, Federal Public Defender, with her on briefs), for defendant-appellant, cross-appellee.

Kathryn H. Phillips, Asst. U.S. Atty., Tulsa, Okl. (Tony M. Graham, U.S. Atty., with her on brief), for plaintiff-appellee, cross-appellant.

Before HOLLOWAY, BRIGHT, ^* and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

James David Thornbrugh was convicted of three counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) & (d) (1988), and three related counts of possession of firearms during the commission of a crime of violence under 18 U.S.C. § 924(c)(1) (1988). On appeal, Thornbrugh raises several challenges to his conviction and also contends that his sentence was improperly enhanced under section 924(c). The court on its own motion ordered rehearing en banc in this case and in United States v. Abreu, No. 89-4145, limited to consideration of the proper interpretation of the enhancement provision in section 924(c)(1). Accordingly, Thornbrugh's sentencing argument is addressed in the en banc opinion of this court, filed simultaneously with this opinion. See United States v. Abreu, 962 F.2d 1447 (10th Cir.1992). Here we resolve the remaining issues Thornbrugh raises with respect to his conviction. He claims that: (1) the prosecutor's remarks during closing arguments violated his due process rights; (2) newly discovered evidence merits a new trial; (3) the government wrongly withheld exculpatory evidence; (4) the prosecution improperly alluded to his prior bank robbery convictions; and (5) the cumulative errors at trial require reversal. We conclude that these assertions do not require reversal of his conviction.

I. FACTS

Thornbrugh was indicted on three counts of armed bank robbery and three related gun charges. The indictment filed against him specifically charged the robberies of Local American Savings & Loan on January 6, 1989, of Continental Federal Savings & Loan Association on January 24, 1989, and of Village South National Bank on March 11, 1989. He was also charged with three counts of carrying a firearm in relation to a crime of violence, referring to the three robberies charged in the first part of the indictment.

The government's key witness at trial was Thornbrugh's accomplice, Gary Sewell, who had pled guilty to two of the three bank robberies. Sewell testified that in each robbery he stood by the door as Thornbrugh jumped over the teller counter and emptied the bank's registers. Sewell also testified that in each robbery Thornbrugh selected the bank to rob, supplied the guns (a .357 Wesson and a .380 Browning), and shouted orders for everyone to get on the floor. Sewell said that during each robbery he and Thornbrugh wore gloves and masks made from stockings.

Proof at trial revealed the following chronology with respect to the crimes. On January 6, 1989, Sewell and Thornbrugh traveled to Local American Savings & Loan in Thornbrugh's Chevrolet pickup and parked it two to three blocks away. After robbing the bank in less than three minutes, they ran behind a shopping center, climbed over a fence, and ran past a mail carrier. Upon arriving at Thornbrugh's pickup, they drove away followed by the mail carrier, at whom Thornbrugh pointed a gun.

On January 21, 1989, Sewell and Thornbrugh traveled to the Continental Federal Savings & Loan in Sewell's silver Camaro. As before, they were in the bank for under three minutes. They left in the Camaro, which Thornbrugh drove to his pickup in a parking lot. He then left in his truck, taking the money, guns, and masks. Meanwhile, Sewell drove the Camaro to the Falls Apartments, where he was to meet Thornbrugh to split the money. A police officer questioned Sewell at the apartments. Upon searching the Camaro, the police officer found Thornbrugh's boots, belt, wallet, and driver's license. Sewell was not arrested at that time.

On March 11, 1989, Sewell and Thornbrugh robbed the Village South National Bank. They drove to the bank in a brown Ford Pinto Sewell bought to use in the bank robbery, and robbed the bank following the same plan as before. After the robbery, Thornbrugh drove the Pinto to a Ford LTD which they had parked in the general neighborhood of the bank. Special Agent McDade, United States Secret Service, and Larry Choate, president of Village South National Bank, had pursued the robbers at a distance following the robbery. Sewell put the money, guns, and masks in the trunk of the LTD and dropped Thornbrugh off at his pickup. Both McDade and Choate observed the license tag on the back of the pickup truck which Thornbrugh drove off. They recalled the license tag as Kansas number CU-- -151. They chose to follow Sewell, and he was subsequently arrested.

After Sewell's arrest, several items were recovered from the Ford LTD including a Browning .380 automatic, a Don Wesson .357 revolver, two nylon stocking masks, two pairs of brown gloves, one black and one blue baseball cap, items of personal clothing, and $1,647.00 in cash. On March 15, FBI Agent Jo Deatherage was present at Thornbrugh's home during his arrest. She observed a Chevrolet pickup parked in the driveway, with a Kansas license tag number, CUI-151.

Several eyewitnesses to each of the robberies testified and offered descriptions of the robber who took the cash. Most of the eyewitnesses recalled that the robber was approximately six-feet tall, although some descriptions placed the robber between five-ten and six-feet. Thornbrugh is about six-two. No eyewitness except Sewell placed Thornbrugh at the scene of any of the robberies. Thornbrugh offered several alibi witnesses, including his father, co-workers, employer, and his employer's wife, all of whom confirmed Thornbrugh's alibis for each of the robberies.

Thornbrugh was convicted on all counts under 18 U.S.C. §§ 2113(a) & (d) and 924(c). On the three robbery counts, the district court sentenced Thornbrugh as a career offender with a total offense level of 34 and a criminal history level of VI. The imprisonment range at that level is from 262 to 327 months. With respect to the gun charges, the district court construed section 924(c) to require mandatory sentences of five years on the "first" count (count four), and enhanced sentences of twenty years for each "second or subsequent conviction" under section 924(c) (counts five and six). Thornbrugh therefore received an additional forty-five years on the section 924(c) gun charges. When added to the guideline range of 262 to 327 months, the additional forty-five years produced a possible sentence range of 802 to 867 months. The court departed downward based on its conclusion that the Sentencing Commission did not adequately consider "the effect of the cumulative sentence of 45 years mandatory ... [as it] relates to the minimum guideline range required on Counts 1, 2 and 3." Rec., vol. XII, at 16. It therefore departed downward to a total of 543 months imprisonment. Id. at 16. ¹

II. PROSECUTOR'S REMARKS DURING CLOSING ARGUMENT

Thornbrugh contends that his right to a fair trial was denied by the prosecution's inappropriate comments during closing arguments. Thornbrugh alleges prosecutorial error in the following exchange:

"Mr. Lunn [defense counsel]: Well, what about the problems with Sewell? There are plenty of them. He changed his statements numerous times. You've heard that he has made many deals during the course of his life. It's terrible to think that a man with five felony convictions can possibly--

Mr. Baker [prosecution]: If Your Honor please, that is an absolute untruth. The man said he had two felony convictions. This is misquoting the record. I object to it.

Mr. Lunn: The man has--

Mr. Baker: Just a minute, please.

The Court: Ladies and gentlemen, you heard the evidence on that subject. I'm [sic] leave it to you to recall it. Proceed.

Mr. Lunn: The man has pled guilty three times to bank robbery, and he has pled guilty twice to burglary.

Mr. Baker: That again is untrue, Your Honor, and I ask you again to admonish this man to quit lying to the jury. He said he had been convicted twice. He pled guilty to two bank robberies and not three. That's the record in the case. Please admonish this man to stop lying.

The Court: You heard the evidence, ladies and gentlemen. Proceed."

Rec., vol. X at 696-697.

Defense counsel did not object to these comments when they were made. We will therefore reverse only for "plain error." United States v. Young, 470 U.S. 1, 13-14, 105 S.Ct. 1038, 1045-46, 84 L.Ed.2d 1 (1985); United States v. Lonedog, 929 F.2d 568, 570 (10th Cir.1991). "Plain error is 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.' " Id. (quoting United States v. Henning, 906 F.2d 1392, 1397 (10th Cir.1990)).

Although attacks on defense counsel may constitute prosecutorial misconduct warranting reversal, the prosecutor's comments here were responsive to defense counsel's statements. See Young, 470 U.S. at 12, 105 S.Ct. at 1044. As we have stated previously: "[T]he fact that the prosecutor was responding to defense counsel's closing argument did not give him carte blanche to make improper statements. But the fact that the statement was part of a response and not part of a general attack on defense counsel lessened its effect." United States v. Lowden, 900 F.2d 213, 216 (10th Cir.1990) (citation omitted). The substance of the prosecutor's objection expressed no opinion on the question of Thornbrugh's guilt. Compare United States v. Rios, 611 F.2d 1335, 1343 (10th Cir.1979) (disapproving prosecutor's expression of personal belief in defendant's guilt), cert. denied, 452 U.S. 918, 101...