United States v. Howell

• Decision Date: 08 November 2021
• Docket Number: No. 20-5858,20-5858
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gene Allen HOWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

17 F.4th 673

UNITED STATES of America, Plaintiff-Appellee,

v.Gene Allen HOWELL, Defendant-Appellant.

No. 20-5858

United States Court of Appeals, Sixth Circuit.

Decided and Filed: November 8, 2021

ON BRIEF: J. Nicholas Bostic, Lansing, Michigan, for Appellant. Matthew J. Wilson, UNITED STATES ATTORNEY'S OFFICE, Jackson, Tennessee, for Appellee.

Before: GUY, MOORE, and GIBBONS, Circuit Judges.

RALPH B. GUY, JR., Circuit Judge.

A jury convicted Gene Howell of armed bank robbery, brandishing a firearm during the robbery, a separate attempted armed bank robbery, discharging a firearm during the attempted robbery, and being a felon in possession of a firearm. Howell now argues on appeal that the district court improperly: interfered with his right to testify; allowed the identification testimony of a bank teller; refused to bifurcate the felon-in-possession-of-a-firearm charge that was "vindictively added" sixteen months after the initial indictment; applied the base offense level for attempted first-degree murder; and imposed a two-level offense enhancement because a victim was "physically restrained." Finding no reversible error, we AFFIRM.

I.

A.

In 2017, defendant Howell's girlfriend was Janet Nicole Thompson. She testified for the government at Howell's trial. Thompson had pleaded guilty to aiding and abetting Howell in the successful robbery of a bank in Finger, Tennessee, on August 25, 2017, and aiding and abetting Howell in the attempted robbery of a bank in Reagan, Tennessee, on October 14, 2017. Security cameras at each bank recorded the events (without audio), and the video footage was shown to the jury.¹

The Finger Bank Robbery . Thompson told the jury that in August 2017 she and Howell were unemployed and homeless. They were staying with friends, in hotels, or in their car. The day before the Finger bank robbery, Howell hid food in the woods, and took Thompson to a stolen side-by-side utility vehicle, which he hot-wired to start. The next morning, Howell gave Thompson "strict instructions" to follow him while he drove the side-by-side to a store, turn off her phone, and then meet him later at a familiar spot in the woods. Thompson did just that.

That same day, August 25, 2017, security cameras at a bank in Finger, Tennessee, recorded a lone man as he robbed the bank, while wearing full-body camouflage, a full-face camouflage ski mask, sunglasses, and black gloves. The security video shows that the robber arrived at the bank in a side-by-side utility vehicle and parked close to the bank's entrance. The bank manager, sixty-seven-year-old Dianne Talbott, and two tellers were working that day. Shortly after 9:00 a.m., the robber entered the bank and walked to the teller's counter, where Talbott was standing. He dropped some white garbage bags on the counter, pointed a handgun at Talbott, and demanded cash. The two tellers quickly came to assist. While waving his gun at the three employees and threatening to shoot them, the robber yelled at the tellers to get the money from their cash drawers. After the employees scrambled to put the cash in the bags, the robber demanded money from the vault and commanded Talbott to lie on the floor. Referring to Talbott, the robber told the tellers that "if y'all don't hurry up, I'm fixing to kill this bitch." They complied and the robber left the bank with about $43,274.00. The robber was in the bank for a total of about seventy seconds.

Thompson testified that after she had waited in the woods near Finger for approximately thirty to forty-five minutes, Howell jumped in her Jeep wearing camouflage. He threw a bag in the back, stashed a handgun under the Jeep's gearbox, and told Thompson to drive. Howell changed his clothes and directed Thompson to a place in the woods, where Howell buried a bag. Thompson then drove to a gas station where Howell disposed of the clothes he had worn. The next stop was Howell's 10:00 a.m. court appearance. Thompson later picked up Howell, and the two went to retrieve the bag Howell had buried.²

Later, Howell paid cash for a hotel room in Mississippi, where he told Thompson the details of the Finger bank robbery. Howell said there were three women in the bank and mentioned that one was the mother of their high school teacher, John Talbott. Howell recounted that he called Ms. Talbott "a stubborn bitch" because "she refused to give him the money," and "she fell on the floor" and screamed when "he threatened to shoot her."

Thompson noted that Howell had "money that he did not have before," which he kept inside a lockbox. Despite being unemployed, after the robbery Howell paid off traffic tickets, paid a deposit and the first month of rent on a house, and quickly purchased a car, rims, tires for Thompson's Jeep, brake pads, a camera system, a stereo, a speaker, tennis shoes, glasses and contact lenses for Thompson, furniture, and methamphetamine—all of which Howell paid for with cash.

The Reagan Bank Robbery . Thompson testified that soon Howell had spent all the money from the Finger robbery, so she and Howell began driving around West Tennessee to look for another bank to rob. Howell eventually settled on a bank in Reagan, Tennessee. On October 14, 2017, Thompson dropped Howell off near the target bank. Thompson testified that Howell had a pistol and was wearing khaki pants, a Nike jacket that he had turned inside out, black gloves, shoe polish on his face, and a mask.

On the morning of October 14, 2017, security cameras at a bank in Reagan recorded a man as he attempted to rob the bank, while wearing khaki pants, a black jacket, black gloves, sunglasses, and a full-face camouflage ski mask. The bank manager (Teresa Camper) and her co-worker had just walked into the enclosed teller area when the robber entered the bank and went to the locked door next to the teller's window and tried opening it. The robber pointed his gun at the small window in the door as he peered through it at Camper and yelled twice "open the damn door." Visibly frustrated, the robber ran to the teller's window and pointed his gun at one of the women. He ran back to the door and looked through its window, before stepping back and firing a shot at the door window. Camper and her co-worker got down on floor and crawled to the end of the bank as the robber fled. The robber was in the bank for about thirty seconds.

Thompson told the jury that she picked Howell up, and he told her that the robbery "went bad" and that "he didn't get any money." Howell also told Thompson he had "shot the gun at the glass, because they would not open the door." They then traveled to Mississippi, where Thompson and Howell were arrested after a traffic stop on October 24, 2017. In the vehicle, police found a loaded Springfield .45 caliber pistol, a Taurus 9mm caliber pistol, and a box of .45 caliber ammunition in a bag behind Howell's seat. Law enforcement later recovered bullet fragments and an empty .45 caliber shell casing at the Reagan bank. An analyst with the FBI compared the spent shell casing found at the Reagan bank with the .45 caliber pistol found in Howell's possession and opined that the cartridge was fired from the same pistol.³

B.

In a four-count indictment filed on November 20, 2017, Howell was initially charged with: two counts of bank robbery (or attempted bank robbery), with a dangerous weapon, in violation of 18 U.S.C. § 2113(a) and (d) (Counts 1 and 3); brandishing a firearm during the Finger bank robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(i)-(ii) (Count 2); and discharging a firearm during the Reagan bank robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(i)-(iii) (Count 4). About sixteen months later, on April 1, 2019, the government filed a superseding indictment, adding Count 5 for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). After the Supreme Court decided Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), the government filed a second superseding indictment on September 16, 2019, which added a knowledge allegation to Howell's § 922(g) charge to comply with Rehaif .

Howell then simultaneously filed three motions in limine. First, under Federal Rules of Evidence 609 and 404, Howell moved to prohibit the government from impeaching him with unspecified prior convictions.⁴ Second, Howell asked the district court to bifurcate Count 5 (felon in possession of a firearm) because allowing the jury to learn of his prior convictions for Count 5 would cause prejudice to him that would substantially outweigh the probative value for Counts 1, 2, 3, and 4. Third, Howell moved to exclude bank manager Dianne Talbott's testimony identifying Howell as the Finger bank robber, arguing it is improper lay witness testimony under Federal Rules of Evidence 701 and 403.

In a written pretrial order, the district court denied Howell's motion to exclude Talbott's identification testimony, concluding that "[h]er testimony is admissible." After the jury was selected, the court took up Howell's other two motions. The government informed the court that Howell stipulated to knowing he was a convicted felon for purposes of § 922(g) under Count 5, but the district court decided to take under advisement Howell's motion regarding his prior convictions because "it may depend on whether Mr. Howell testifies. And quite frankly if he does testify, what he testifies to." The court denied Howell's motion to bifurcate Count 5.

After the government presented its case in chief, the jury was briefly excused. Howell acknowledged under oath that he understood his right to testify or not testify, stated that he did not wish to testify, and affirmed that he made the decision "freely and voluntarily." Howell presented no evidence. The jury found Howell guilty on all five counts and made special findings that Howell brandished a gun at the Finger bank robbery and discharged a gun at the Reagan bank robbery.

C.

At sentencing, the district court (over681...