U.S. v. Thorpe
| Decision Date | 14 April 1994 |
| Docket Number | No. 93-5747,93-5747 |
| Citation | 36 F.3d 1095 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Angres David THORPE, Defendant-Appellant. . Argued: |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, Sr., District Judge. (CR-93-35-1)
Thomas Kieran Maher, Rulolf & Maher, P.A., Chapel Hill, North Carolina, for Appellant.
Harry L. Hobgood, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.
Benjamin H. White, Jr., United States Attorney, Greensboro, North Carolina, for Appellee.
Before HALL and MICHAEL, Circuit Judges, and GODBOLD, Senior Circuit Judge of the United States Court of Appeals for the Eleventh Circuit, sitting by designation.
Angres Thorpe appeals his conviction for bank robbery under 18 U.S.C. Sec. 2113(a) and the denial of his motion to suppress the fruits of a roadside detention and search of his vehicle, including statements he made during the detention. Thorpe additionally challenges a jury instruction and the district court's dismissal of a juror for cause. Finding no error, we affirm.
On January, 19, 1993, the First Citizens Bank in Durham, North Carolina, was robbed. Unfortunately, the bank's video cameras were not working that day. Before the robbery, a teller, Wanda King, noticed an African American male come into the bank's foyer and place a mask over his face; she got a "quick glance" at the robber before he put on the mask. She testified that he had a light complexion, was slightly built, and stood a bit shorter than her own height of 5 8". When the robber demanded money, she noticed that he had a speech impediment. She complied with the robber's demand, but included in the satchel (provided by the robber) some bills in a dye pack rigged to later explode, emit teargas and stain the money red. King also included a stack of $5.00 bills bound by a currency strap marked with her teller number, the date, the bank's initials (FCB), and her own handwritten initials. 1 A bank customer in the parking lot saw an African American male, whom he could not otherwise describe, run out of the bank and get into a blue Chevrolet driven by a second African American male.
About a week before the robbery, King took note of two African American males who came in the bank within a half hour of each other. Both acted suspiciously. The second man to enter was described by King as slightly built with a light complexion. When he approached King and asked for the first man, King noticed that the second man had a speech impediment. Surveillance photographs of the two men were identified by King and admitted at trial.
On January 25, 1993, six days after the bank robbery, Appellant Thorpe was driving North on Interstate 95 in Maryland when he was stopped for speeding at 5:15 p.m. by Trooper John Appleby. Thorpe, driving a rental car, produced a rental agreement in his name and a North Carolina driver's license with an address in Durham. Appleby took Thorpe's papers to run a computer check. Because Thorpe's female passenger seemed unusually nervous, Appleby decided to separate the two for his own safety; he had Thorpe sit in the patrol car during the computer check. There, Appleby asked Thorpe about their travel plans. Thorpe told Appleby that he and his passenger were going to New Jersey to visit his mother, and then on to New York City. 2 While Trooper Appleby was talking to Thorpe, the trooper noticed Thorpe's passenger repeatedly looking back at the patrol car, moving around and bending over in her seat. This led Appleby to suspect she was trying to reach for a weapon or hide drugs.
Because of the passenger's peculiarly furtive actions, I-95's reputation as a drug corridor, and their destination of New York and New Jersey, narcotics source areas, Appleby asked Thorpe (at approximately 5:40 or 5:45) if he had any weapons, illegal drugs, or other contraband in the car. Thorpe said he did not. Appleby then asked Thorpe for consent to search the car. Thorpe orally consented. Nonetheless, Appleby took fifteen minutes to go over a written consent form with Thorpe, specifically explaining to Thorpe that he could refuse the search. Thorpe signed the consent form at 6:00 p.m. Appleby then radioed another trooper for assistance.
When the second trooper arrived, Appleby searched the car. In the trunk Appleby found over $2,000 inside various containers within containers, such as in a vitamin bottle inside a shaving kit and in a plastic bag inside a plastic food container. The money was colored red, was wet, and had a pungent odor. Appleby told Thorpe that he was seizing the money found in the trunk. 3 Without giving Thorpe a Miranda 4 warning, Appleby asked him why the money smelled the way it did. Thorpe said that he had put chemicals on the money, but he did not offer an explanation as to why. Appleby presumed that the money was somehow related to drug activity.
Appleby then placed Thorpe back in the patrol car. Although it is not clear from the record, it appears that Appleby had not yet returned Thorpe's license and rental papers to him. 5 Still without giving Thorpe a Miranda warning, Appleby questioned him further about the money. Thorpe told Appleby that the money came from his savings and that he was taking it to New Jersey to give to his mother for her new home. Appleby gave Thorpe a warning citation and released him.
The money seized from Thorpe included the wrapped bundle of $5.00 bills marked with King's teller number, her initials, the date of the robbery, and the initials of the bank, FCB. At trial the red stain on seized money from Thorpe was linked to the dye pack given to the robber. This was done through FBI tests on seized bills and the testimony of the employee of the chemical company that sold the dye packs to the bank. The grainy photographs of the two men who (the week before the robbery) had previously entered the Bank and acted suspiciously were introduced. However, neither King (the teller) nor the customer who saw the robber leave the bank could identify Thorpe as one of the robbers. Nor did King identify him as one of the two suspicious men. Thorpe's statements to Trooper Appleby about the money were introduced against him as part of the government's case in chief.
Thorpe did not testify. His only witness was his son, who testified that the man in the bank photo was not Thorpe, that his father did not have a speech impediment, that his father did not own a blue car, that he had never seen Thorpe in the company of a person with a blue car, and that his father's mother lived in New Jersey.
At a pretrial hearing Thorpe moved to suppress the fruits of the search (the seized money) and the statements he had made concerning the money. The district court denied the motion, finding that the length of Thorpe's detainment was reasonable under the Fourth Amendment due to the time required to run the license check and explain the consent form. The court further ruled that the trooper had a reasonable suspicion that a weapon or contraband was in the car and was justified in requesting permission to search. Finally the court ruled that Thorpe's consent to the search was voluntary. The court, however, made no finding as to whether Thorpe was ever in custody.
After the jury was selected the court discovered that one juror, Fowler, had two previous criminal convictions. Fowler had listed those convictions (a 1990 misdemeanor drug conviction and a 1984 felony embezzlement conviction) on his questionnaire. However, through some inadvertence, the court and the parties were not apprised of Fowler's record before the voir dire. The government objected to Fowler serving, asserting that it would have struck Fowler peremptorily had it known of his record. Part of the government's concern about Fowler was based on its pending motion to introduce motive evidence about Thorpe's alleged crack cocaine habit. Thorpe had argued that the proposed evidence was inadmissible and the court had reserved decision until trial. Additionally, the district court was unsure whether Fowler's civil rights, including the right to serve as a juror, had been restored. Concluding that neither party could have made an informed decision about Fowler's service as a juror, the court removed Fowler for cause. Thorpe objected. To minimize any prejudice to Thorpe, the court offered Thorpe an additional peremptory challenge to use in selecting the replacement juror. Thorpe ultimately agreed to the replacement of Fowler by one of the alternates, but preserved his objection.
The jury convicted Thorpe, and he was sentenced to ninety-four months imprisonment. He appeals.
We first address Thorpe's claim that the district court erred in excusing a selected juror for cause. Thorpe does not claim that he received an unfair trial due to juror bias. He simply argues that he was deprived of a particular juror, Fowler. The government responds that even assuming that Fowler was legally eligible to serve, his selection prejudiced the government: Because it did not know of Fowler's record, the government was "prohibited from fully evaluating his impartiality and making an informed decision whether to exercise a peremptory challenge against him." Response Br. at 27.
A trial court has broad discretion to decide whether to remove a juror for cause and its decision should not be overturned except when manifest prejudice results. See United States v. Zambito, 315 F.2d 266, 269 (4th Cir.), cert. denied, 373 U.S. 924 (1963).
The district court said it was not sure (nor are we from...
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...823 F.3d 793, 800 (4th Cir. 2016), overruled on other grounds, Stokeling v. United States, 139 S. Ct. 544 (2019); United States v. Thorpe, 36 F.3d 1095 (4th Cir. 1994) (table) (recognizing a "passenger's peculiarly furtive actions" can be "consistent with that of a person trying to reach fo......