United States v. Bannister, No. 06-13048 (11th Cir. 7/16/2008), 06-13048.
| Decision Date | 16 July 2008 |
| Docket Number | No. 06-13048.,06-13048. |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee v. QUINTON BANNISTER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Southern District of Florida; D. C. Docket No. 05-80063-CR-DTKH.
Before TJOFLAT and BLACK, Circuit Judges, and RESTANI,* Judge.
Quinton Bannister was convicted by a jury of multiple counts arising out of three armed bank robberies, which occurred between April and October 2004 along the eastern coast of Florida.1 Bannister was sentenced to 946 months' imprisonment. On appeal, he challenges (1) the sufficiency of the evidence on all counts, (2) the district court's refusal to sever counts, (3) several evidentiary admissions, (4) the jury instructions used at his trial, and (5) the calculation and reasonableness of his sentence. With the benefit of briefing, oral argument, and a careful review of the record, we affirm Bannister's convictions and sentence.
This Court reviews the sufficiency of evidence de novo. United States v. Morris, 20 F.3d 1111, 1114 (11th Cir. 1994). "We examine the evidence in the light most favorable to the government and must affirm a conviction if any reasonable construction of the evidence would permit the jury to find a defendant guilty beyond a reasonable doubt." Id. "[A] guilty verdict will not be disturbed on appeal unless no reasonable trier of fact could have found guilt beyond a reasonable doubt on the evidence before it." United States v. Baker, 432 F.3d 1189, 1232 (11th Cir. 2005).
Bannister argues there was insufficient evidence to convict him on all counts because (A) co-conspirator testimony was not reliable enough to convict him, (B) insufficient evidence was presented to prove the existence of, and Bannister's participation in, a conspiracy, and (C) errors of fact and law were made in holding him vicariously liable for the use of firearms by his co-conspirators.
It is well established that credibility determinations are the exclusive province of the jury. United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997). And this Circuit has long upheld the propriety of the government's practice of trading sentencing recommendations for the cooperation of witnesses. United States v. Lowery, 166 F.3d 1119, 1124 (11th Cir. 1999). Evidence is not legally insufficient merely because it comes from the testimony of "an array of scoundrels, liars and brigands." United States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir. 1981) (citations omitted). Even the uncorroborated testimony of a single accomplice may support a conviction if it can reasonably be believed. United States v. Sabin, 526 F.2d 857, 859 (5th Cir. 1976).2
In light of the above cited authorities, we find unpersuasive Bannister's argument that the six accomplices that testified against him were not reliable enough to support the convictions. Bannister had the opportunity to cross examine every witness who testified against him; their flaws and motivations were made plain to the jury. The district court also cautioned the jury that "a witness who hopes to gain more favorable treatment may have a reason to make a false statement because the witness wants to strike a good bargain with the Government." On appeal, Bannister does not point to any specific witness testimony that was factually inconsistent or flawed in a way that it could not reasonably be believed by the jury.
In the case of the First National Bank robbery, at least three accomplices testified to Bannister's involvement; furthermore, Bannister's DNA was found on a pillowcase used by the SunTrust robbers, and his fingerprints were found inside a safe containing bait bills from the First National robbery. In the case of the Colonial Bank robbery, the testimony of Lotod Newby supported Bannister's conviction. And finally, the Harbor Federal Savings conviction was supported by both the testimony of Michael Lewis and the bait bills found in Bannister's possession on the day of the robbery. The jury was entitled to believe the accomplice testimony presented at trail, and that testimony indicated Bannister participated in each crime for which he was convicted.
Bannister also claims there is insufficient evidence to show he agreed to participate in conspiracies in violation of 18 U.S.C. §§ 371 and 1951(a). However, "[t]he existence of an agreement may be proven by circumstantial evidence, including `inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme.'" United States v. Silvestri, 409 F.3d 1311, 1328 (11th Cir. 2005) (quoting United States v. Tamargo, 672 F.2d 887, 889 (11th Cir. 1982)). Given the coordinated nature of the robberies—multi-member teams of masked, armed men robbing banks—evidence of Quinton Bannister's active participation in each of those robberies is enough to infer both the existence of a conspiracy and an agreement to participate. In each case, testimony places Bannister at the site of the robbery. At First National, Bannister was identified standing in the bank with an assault rifle. At Colonial Bank and Harbor Federal Savings, the evidence showed Bannister played a leadership role in planning the robberies and in each case drove the nearby getaway car. Overall, the accomplice testimony paints a picture of Bannister being deeply involved in each of the conspiracies for which he was convicted.
Bannister argues the evidence does not support a conviction under 18 U.S.C. § 924(c)(1)(A) for using or carrying a firearm during the commission of a violent crime. As a matter of law, Bannister argues he could not be held vicariously liable for the acts of his co-conspirators. Factually, he argues there is no evidence that he used or carried a firearm. On this basis he challenges Counts 4, 7 and 10 of the indictment. Under 18 U.S.C. § 924(c), "it is unlawful for `any person who, during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States' to use or carry a firearm or for any person `in furtherance of any such crime,' to possess a firearm." United States v. Diaz, 248 F.3d 1065, 1099 (11th Cir. 2001) (quoting 18 U.S.C. § 924).
Bannister's legal argument—that he cannot be held vicariously liable for his co-conspirators' acts—is of little consequence to his firearm conviction for the First National Bank robbery (Count 4). Jon Michael Etheredge identified Bannister carrying an assault rifle in a security photo taken during the First National robbery. For this reason, sufficient evidence exists to support a conviction for Bannister's use of a firearm during the commission of the robbery.
As to the other bank robberies, Bannister's legal argument is foreclosed by this Circuit's precedent. It has long been recognized that "a co-conspirator can be punished for a substantive offense committed by one of his co-conspirators so long as the offense is reasonably foreseeable and is committed in furtherance of the conspiracy." United States v. Caporale, 806 F.2d 1487, 1508 (11th Cir. 1986) (citing Pinkerton v. United States, 66 S. Ct. 1180, 1184 (1946)). This Circuit has extended so-called Pinkerton liability to § 924(c) offenses: "[C]riminal defendants remain liable for the reasonably foreseeable actions of their coconspirators—including the using or carrying of a firearm during the commission of a crime of violence." Diaz, 248 F.3d at 1099; see also United States v. Bell, 137 F.3d 1274, 1275 (11th Cir. 1998) ().
As to the Colonial Bank robbery (Count 7), sufficient evidence exists to conclude Quinton Bannister planned the armed robbery of the bank with his brother Reginald. According to Lotod Newby, he drove Quinton and Reginald up I-95 for the purpose of selecting a target bank to rob. Furthermore, Newby testified that on the day of the robbery he and other co-conspirators met in the back of a shopping plaza nearby the bank and retrieved guns from a car Quinton Bannister was driving. Based on this evidence, it was reasonably foreseeable to Bannister that guns would be used in the robbery; therefore, it was appropriate to hold him vicariously liable for the use of those guns in the Colonial Bank robbery.
As to the Harbor Federal Savings robbery (Count 10), sufficient evidence exists to conclude Quinton Bannister was the ring leader. The evidence revealed he recruited Michael Lewis to commit the robbery, he gave instructions to each member of the robbery team regarding their role in the conspiracy, and he acted as the getaway driver. Here too, it was foreseeable to Bannister that guns would be used in carrying out the robbery; therefore, it was appropriate to hold him vicariously liable for the use of those guns in the Harbor Federal Savings robbery.
In conclusion, sufficient evidence exists to support Bannister's convictions on all counts.
The denial of a motion to sever is reviewed for abuse of discretion. United States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990). The court "will not reverse the denial of a severance motion absent a clear abuse of discretion resulting in compelling prejudice against which the district court offered no protection." United States v. Hersh, 297 F.3d 1233, 1244 (11th Cir. 2002) (citing United States v. Walser, 3 F.3d 380, 385 (11th Cir. 1993)). Bannister argues the district court abused its discretion and denied him a fair trial when it denied his motion to sever the counts related to the three bank robberies into separate trials. He notes each bank robbery involved three distinct conspiracies made up of different groups of people with different objectives.
We conclude the district court did not abuse its discretion in refusing to sever the three bank...
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