United States v. Duffey, 10-10103
| Decision Date | 03 January 2012 |
| Docket Number | No. 10-10103,10-10103 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee v. COREY DEYON DUFFEY, also known as Keyno, also known as Calvin Brown; ANTONYO REECE, also known as Seven; CHARLES RUNNELS, also known as Junior; JARVIS DUPREE ROSS, also known as Dookie, also known as Dapree Dollars, also known as Fifty; TONY R. HEWITT, Defendants - Appellants |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeals from the United States District Court
for the Northern District of Texas
Before JOLLY, DEMOSS, and PRADO, Circuit Judges.
Corey Duffey, Tony Hewitt, Antonyo Reece, Jarvis Ross, and Charles Runnels devoted their respective talents to the enterprise of robbing banks. They were convicted of multiple counts of armed robbery, attempted robbery, and conspiracy and received prison sentences ranging, respectively, from a minimum of 140 years, to a twenty-nine life sentence imposed on one defendant.Although their criminal enterprise enjoyed some success, the enterprise of appealing their convictions is likely of marginal value to them, given the extensive sentences they will have to serve. First, the Appellants argue that there was only one, overarching conspiracy to rob banks and that their multiple conspiracy convictions are duplicative, violating the Double Jeopardy Clause. Second, they argue that their convictions on two counts of attempted bank robbery are not supported by the evidence, because there was no showing of "actual force and violence, or intimidation," which is required to support a conviction under the first paragraph of 18 U.S.C. § 2113(a) and (d). Because the government did not establish the underlying offense of attempted bank robbery on these two counts, they further argue that the two § 924(c)(1) counts for use of a firearm during the alleged attempted robberies are invalid. Finally, Hewitt, individually, raises a sentencing issue contending that the presentence report exaggerates his total offense level, which we reject. For the reasons that follow, we AFFIRM the convictions except for the two attempted robbery and the two concomitant § 924(c)(1) convictions under Counts Three, Four, Eighteen, and Nineteen, which we REVERSE and VACATE. Given that we vacate these convictions with respect to all Appellants, we VACATE all sentences and REMAND to the district court to re-sentence all defendants in the light of this opinion.
From January to June of 2008, Corey Duffey, Tony Hewitt, Antonyo Reece, Jarvis Ross, and Charles Runnels (collectively, "Appellants"), as well as two coconspirators — Darobie Stenline and Yolanda McDow — constituted a loose confederacy of bandits who, with varying degrees of success, robbed five banks in the Dallas-Fort Worth area. Four other individuals — referred to as Nitty,T.S., Kenny, and J.T. — participated in one or more of the robberies, but were not indicted for their alleged crimes.
Both Duffey and Hewitt assumed leadership roles of their co-defendants. They would case banks, invite potential partners to join in the crimes, delegate roles and responsibilities to their co-conspirators, and participate in the robberies.
The confederacy made its debut on January 28, 2008 at the Citi Bank in Garland, Texas. Duffey, Hewitt, Ross, Runnels, Stenline, Nitty, and T.S. were the actors in this robbery. Hewitt organized the robbery and gave instructions to the "takeover team" via walkie talkie. The robbers stole a white Oldsmobile (or Buick) sedan for transportation. This enterprise yielded about $5,000. The robbers netted a disappointingly paltry sum, because the bank was too large for the robbers and raiders to control effectively, even with their assortment of guns. Consequently, they planned for a new, smaller undertaking a few days later.
The group launched their second strike on February 1, 2008 at the Comercia Bank in Desoto, Texas. Duffey, Hewitt, Runnels, Stenline, McDow, Nitty, Kenny, and T.S. worked this job and made travel arrangements by stealing a Ford Explorer. This venture netted a handsome $245,000. Stenline, T.S., and Hewitt acted as lookouts, while the other participants, bearing an array of guns, acted as the "takeover team."
At 1:15 p.m. on March 28, 2008, Duffey, Hewitt, Ross, Runnels, Stenline, McDow, Nitty, and J.T. ganged up on the Century Bank in Dallas, Texas, choosing for transportation a stolen white Chevy Suburban on this occasion. Before this operation, Hewitt sent McDow a text message asking whether she "wanted to make some money." Obviously ambitious, McDow put her considerable talents to work for Hewitt by casing the bank and reporting her observations to Hewitt. The robbery was captured on the bank's security cameras, which showed several men wearing masks and armed with handgunsand a taser. Stenline, Hewitt, and McDow acted as lookouts. As the risk-takers were making their getaway, a dye-pack stowed with the stolen bills exploded, rendering almost all of the money tainted. Recognizing that all business undertakings are not successful, the gang quickly abandoned the tainted funds and the getaway car in a local apartment complex. After this failure, Hewitt met McDow at a drug store and told her that the bandits had not made any money because the money bag had broken. McDow, who testified for the government, was not informed of any future plans to rob a bank that day.
Because the Century Bank robbery failed, Duffey and Hewitt were discouraged, but only temporarily. Indeed, they decided to rob another bank the same day. Hewitt called Stenline at home that afternoon and invited him to join a job in Garland. At 4:00 p.m., the same dye-stained group that victimized the Century Bank, except for McDow and J.T., robbed the State Bank of Texas in Garland. Because the group needed another getaway car, Nitty hoped to reverse their loss with a different colored stolen Suburban — lucky-blue. Stenline and Hewitt acted as lookouts while the others robbed the bank at gunpoint. The robbers took small, but worthwhile profit of about $14,700 from the State Bank of Texas.
On April 24, all five Appellants, along with Stenline and McDow, robbed a Bank of America in Irving, Texas. Both Stenline and McDow agreed to work the robbery that day. The group traveled in the same stolen, lucky-blue Suburban that served them well in the State Bank of Texas job a month earlier. This time, instead of just threatening the bank's employees with guns, the robbers used a taser to stun bank tellers. Hewitt, Stenline, and McDow acted as lookouts for the robbery. This worthwhile venture yielded $84,000. It was, however, the last productive showing of this loosely coordinated gang of bandits.
It was May 15 that FBI agents, on high alert because of the gang's crime spree, observed Stenline and Hewitt near the Bank of America in Fort Worth,Texas. Based on Hewitt and Stenline's suspicious behavior, the agents believed that the men were casing a bank in the area. The following day, FBI agents once again observed Hewitt, Stenline, McDow, and other suspected bandits in the same area. The bank takeover team, armed with guns, drove to the bank and parked. The team waited for Duffey to give the sign. But, no signal came. Outside the bank, a man seemed to give Duffey a knowing wink, which led Duffey to think the man indicated some knowledge of what was happening. He immediately canceled the robbery. The rest of the group dispersed and returned to Dallas. McDow testified that she "was prepared" but then she got a message from Hewitt "saying it wasn't going to happen, and everybody basically went their separate ways."
On May 21, an FBI surveillance team spotted Duffey, Ross, and Stenline casing the two, different Bank of America locations in Richardson, Texas. FBI agents, in short order, initiated an emergency wiretap. On May 22, information gathered from the wiretap suggested that a robbery was imminent. The robbers abandoned the plan to rob the banks in Richardson, however, because they believed that the "alphabet boys," also known as the FBI, were on to the plan. Stenline testified that the robbery scheme included plans to kidnap a bank manager. At trial, the government introduced a purple notebook in which Duffey had recorded details about the Bank of America branches, including bank employee names, employee vehicle descriptions and license plate numbers, and employee home addresses. When asked at trial why they abandoned the scheme to rob these banks, Stenline said: "I guess the plan didn't come together."
Finally, through telephone intercepts, FBI agents learned that the Appellants, along with Stenline and McDow, were planning a robbery venture at the Regions Bank in Garland, Texas on June 2. On June 1, Duffey followed the usual plan and stole a Suburban — this time, silver in color. FBI agents overheard Duffey saying that he had called for all hands at the ready and theresponse was full participation, at least by our Appellants, for this particular job. The FBI was also ready. Near the Regions Bank, FBI agents observed Duffey and Ross parking the stolen, silver Suburban. They saw the two men meet with Hewitt and McDow in the bank's parking lot. The co-conspirators, Runnels and Reece, parked behind the stolen Suburban in Runnels's vehicle. Law enforcement officials then moved in to arrest the gathered gang. Stenline and McDow were arrested without incident, but Appellants — all of whom were heavily armed — turned their attention from their crime to flight, at which point the FBI and police turned their attention from arrest to pursuit. The Appellants were ultimately apprehended after high-speed chases, hostage-taking, kidnaping, police stand-offs, and collisions. But in the end, this confederacy of bandits lay down their arms — if not voluntarily — and were given transportation in a government Suburban to their new residence.
In July and August of 2009, the case was tried before a jury. The jury convicted the Appellants, in...
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