United States v. French

• Decision Date: 09 July 2013
• Docket Number: No. 12–2542.,12–2542.
• Citation: 719 F.3d 1002
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Iralee E. FRENCH, Jr., also known as Frisco, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

719 F.3d 1002

UNITED STATES of America, Plaintiff–Appellee

v.Iralee E. FRENCH, Jr., also known as Frisco, Defendant–Appellant.

No. 12–2542.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 12, 2013.

Filed: July 9, 2013.

Stephen C. Moss, Asst. Fed. Public Defender, Kansas City, MO, argued (Raymond C. Conrad, Jr., Fed. Public Defender, on the brief), for appellant.

Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., David M. Ketchmark, Lajuana M. Counts, Asst. U.S. Attys., on the brief), for appellee.

Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.

RILEY, Chief Judge.

In a sixteen-day period, Iralee E. French, Jr. robbed the same Kansas City, Missouri, bank twice. French held a crying teller at gunpoint in the first robbery and shot a security guard during the second. A jury convicted French of conspiracy; bank robbery; using, carrying or brandishing a firearm during a crime of violence; attempted bank robbery; and use or discharge of a firearm during a crime of violence. The district court ¹ sentenced French to consecutive sentences totaling 1044 months (87 years) imprisonment. French appeals his conviction and sentence. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

On February 9, 2006, at approximately 6:40 a.m., French, wearing a mask and armed with a Mossberg shotgun, and his partner, Thirplus Moose, confronted Chynetta Adams, a teller at a United Missouri Bank (UMB) branch in Kansas City, Missouri, as she arrived for work and exited her car in an underground parking garage. French and Moose led Adams to the bank at gunpoint. Adams let the robbers in the bank, but was unable to comply with their demand to open the vault.

After taking approximately $8,200 from Adams's teller drawer, French and Moose forced Adams back to the parking garage. French pointed his shotgun at Adams and repeatedly ordered her to get in the trunk of her car. Screaming and crying, Adams refused. When French and Moose gave up and fled in Adams's car, Adams returned to the bank and called the police.

On February 24, 2006, French and Moose returned to the same bank at approximately 6:30 a.m. to rob it again. As seventy-year-old security guard Dwight Mayhugh arrived in the UMB parking garage, French shot Mayhugh with a shotgun through the window of Mayhugh's vehicle from approximately eight to ten feet away. The shotgun blast struck Mayhugh in the neck, chest, and shoulder, shattering his right upper arm. The robbers then forced Mayhugh from his vehicle so he could let them in the bank. When Mayhugh proved unable to provide French and Moose access to any cash, they forced Mayhugh back to the garage and stole his vehicle.

Bleeding heavily from the shotgun wound, Mayhugh sought help at the convenience store across the street from the parking garage. Paramedics arrived and transported Mayhugh to Truman Medical Center where he underwent surgery. As Mayhugh was rushed into an operating room, an emergency physician who had examined Mayhugh briefly before surgery advised a police detective that he did not believe, at that point, that Mayhugh's injuries were immediately life threatening.

Mayhugh tragically died the next day from complications following surgery. Concluding complications from the shotgun wound caused Mayhugh's death, the medical examiner declared Mayhugh's death a homicide. French maintains improper medical treatment by a third-year resident at the hospital caused Mayhugh's death.

After Mayhugh died, French decided to “stay low” in St. Louis, Missouri, until things calmed down. French evaded arrest for almost two-and-a-half years. In August 2008, new leads in the investigation led law enforcement officers to focus on French. On August 27, 2008, officers arrested French in St. Louis for an outstanding warrant and traffic tickets. After advising French of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and obtaining a signed waiver, the officers interviewed French about the robberies and shooting. Hours later, French signed a formal statement, admitting he participated in both robberies and intentionally shot Mayhugh. Officers did not electronically record French's interview, even though recording equipment was available elsewhere in the building.

On September 23, 2008, a grand jury charged French in a nine-count indictment with conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371 (Count 1); armed bank robbery with forcible restraint, in violation of 18 U.S.C. §§ 2113(a), (e), and 2 (Count 2); three counts of using, carrying, or brandishing a firearm during a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Counts 3, 7, and 9); killing a person while committing attempted armed bank robbery, in violation of 18 U.S.C. §§ 2113(a), (e), and 2 (Count 4); using, carrying, and discharging a firearm during a crime of violence causing murder, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), (j)(1), and 2 (Count 5); and two counts of carjacking, in violation of 18 U.S.C. §§ 2119 and 2 (Counts 6 and 8).

On October 16, 2009, French moved to suppress his statement to the police, arguing (1) his statement was involuntary; (2) his Miranda waiver was invalid; and (3) the officers' failure to record his statement violated his due process rights. On January 7, 2010, after an evidentiary hearing, the magistrate judge recommended the district court deny French's motion to suppress. Adopting the magistrate judge's report and recommendation over French's objection, the district court denied French's motion.

After a five-day trial beginning on July 18, 2011, a jury convicted French of conspiracy (Count 1); armed bank robbery (Count 2); using, carrying, or brandishing a firearm during a crime of violence (Count 3); and the lesser included offenses of attempted bank robbery (Count 4); and using a firearm during a crime of violence (Count 5). The jury acquitted French of causing Mayhugh's death and the carjacking-related offenses (Counts 6, 7, 8, and 9).

On June 26, 2012, the district court held a sentencing hearing at which French, through counsel, argued the presentence investigation report (PSR) incorrectly applied United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 2B3.1(c)(1)'s cross reference to U.S.S.G. § 2A1.1 for first-degree murder, which raised French's base offense level to 43. At sentencing, French maintained Mayhugh died as a result of medical malpractice following surgery, not as a result of being shot by French. The PSR included an expert report—prepared in connection with a civil malpractice action against Mayhugh's medical providers—indicating Mayhugh would have survived his wounds if not for the medical providers' mistakes, but French complained the PSR did not include defense exhibits containing the deposition testimony from the malpractice action.

The district court, over the government's objection, received French's exhibits into evidence for purposes of argument as to a reasonable and appropriate sentence under 18 U.S.C. § 3553(a). Stating it had reviewed the expert's report, the district court overruled French's objection to the application of U.S.S.G. § 2B3.1(c)(1)'s first-degree murder cross reference because French intentionally shot and killed Mayhugh in the course of committing armed robbery. See18 U.S.C. § 1111 (defining first-degree murder). The district court determined the evidence established Mayhugh would not have been hospitalized and facing a difficult medical situation if not for French intentionally shooting him.

Relying on a mitigation video prepared for the court, French requested an aggregate sentence of forty-two years based on his young age at the time of the offense (eighteen) and “genuine remorse.” The district court denied French's request for leniency, speaking at length about French's selfishness and “callous disregard” for Adams and Mayhugh during the robberies—French was “willing to kill people and terrorize people for a few thousand dollars.” Emphasizing that French intentionally “shot to kill” Mayhugh, the district court concluded French was “a threat to society.” After considering the § 3553(a) factors, the district court imposed consecutive sentences totaling 1044 months (87 years) imprisonment. French challenges the admission of his unrecorded statement and his sentence.

II. DISCUSSIONA. Motion to Suppress

French argues “[t]he [district] court erred by admitting Mr. French's custodial statement into evidence when the police failed to memorialize it by video or audio recording despite ample resources and opportunity to do so, which violated his right to due process under the Fifth Amendment.” French's due process argument is foreclosed by our decision in United States v. Williams, 429 F.3d 767, 772 (8th Cir.2005), in which we held the Constitution does not mandate electronically recording a defendant's custodial interrogation. See also Jenner v. Smith, 982 F.2d 329, 331 n. 2 (8th Cir.1993) (noting “other circuits have held that incriminating statements are not inadmissible simply because the police failed to record or take notes of the conversations”). The district court properly denied French's motion to suppress.

B. Sentencing

1. Procedural Error

French contends the district court procedurally erred in imposing his sentence by (1) disregarding the “parsimony principle,” ² (2) failing to consider the sentencing disparity between French and Moose, (3) concluding French “posed a threat to public safety,” and (4) applying the Guidelines cross reference for first-degree murder without addressing testimony that medical malpractice caused Mayhugh's death. “In reviewing a sentence for procedural error, we review the district court's factual findings for clear error and its application of the guidelines de novo.” United States v. Barker, 556 F.3d 682, 689 (8th Cir.2009). “ ‘Procedural error’ includes ‘failing to...