United States v. Smith

• Decision Date: 18 March 2016
• Docket Number: No. 13–20542.,13–20542.
• Citation: 822 F.3d 755
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Larry SMITH; Raymond Tierra Johnson, also known as “T”, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

822 F.3d 755

UNITED STATES of America, Plaintiff–Appellee

v.Larry SMITH; Raymond Tierra Johnson, also known as “T”, Defendants–Appellants.

No. 13–20542.

United States Court of Appeals, Fifth Circuit.

March 18, 2016.

Amy Howell Alaniz, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff–Appellee.

Larry Smith, Florence, CO, pro se.

Margaret Loraine Schmucker, Cedar Park, TX, Karyl Jean King, Scottsdale, AZ, for Defendant–Appellant Raymond Johnson.

Appeals from the United States District Court for the Southern District of Texas.

Before STEWART, Chief Judge, and REAVLEY and DAVIS, Circuit Judges.

PER CURIAM:

Larry Smith, Raymond Tierra Johnson (collectively, the “Appellants”), and eleven co-defendants were charged in a superseding indictment with a number of offenses related to a string of bank robberies in the Houston, Texas, area. Following a four-day trial, a jury found Appellants guilty on all counts, and the district court sentenced each to a lengthy term of imprisonment. Both Appellants filed timely appeals challenging their sentences on various grounds. Johnson also appeals his conviction. For the reasons explained herein, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

At trial, the Government presented evidence that the Appellants, along with their co-conspirators, engaged in a series of increasingly violent bank robberies in the Houston, Texas, area between August and December 2010. The robberies began as “note robberies,” in which a bank robber simply passed the teller a threatening note demanding money, and escalated to “takeover robberies,” where the robbers typically used violence and the threat of violence to take money from the bank.

In connection with these bank robberies, Smith was charged in a superseding indictment with: one count of conspiracy to commit bank robbery by force, violence, and intimidation (Count 1S); seven counts of bank robbery (Counts 2S, 3S, 4S, 7S, 8S, 10S & 12S); and three counts of use of a firearm in furtherance of a crime of violence (Counts 5S, 11S & 13S). Johnson was charged in the same superseding indictment with: one count of conspiracy to commit bank robbery by force, violence, and intimidation (Count 1S); two counts of bank robbery (Counts 10S & 14S); two counts of use of a firearm in furtherance of a crime of violence (Counts 11S & 15S); and one count of hostage taking (Count 16S).¹

At trial, the Government elicited testimony from at least one co-conspirator regarding each of the eight bank robberies charged in the indictment (amongst other corroborating evidence). Following a four-day trial, a jury found Appellants guilty on all counts.

Johnson's PSR calculated a total offense level of 36 and a criminal history category of VI, yielding a Guidelines range of 324 to 405 months. In addition, Counts 11S and 15S required mandatory consecutive terms of imprisonment of seven and twenty-five years, respectively. The district court sentenced Johnson to 744 months' imprisonment and five years' supervised release.

Smith's PSR calculated a total offense level of 41 and a criminal history category of IV, yielding a Guidelines range of 360 months to life. In addition, Counts 11S, 5S, and 13S required mandatory consecutive terms of imprisonment of seven, twenty-five and twenty-five years, respectively. The district court sentenced Smith to 1,080 months' imprisonment and five years' supervised release.

II. DISCUSSION

Appellants' challenges on appeal fall into three categories: (1) Johnson's evidentiary arguments relating to his conviction; (2) Johnson's challenge to his sentence; and (3) Smith's challenges to his sentence. We address each in turn.

A.

Johnson argues that the district court erred in several of its evidentiary rulings and that these errors, collectively, require this court to vacate his conviction. We disagree. Most of Johnson's challenges are squarely foreclosed by precedent or were comfortably within the district court's discretion. Further, to the extent that the district court erred, such error was harmless in light of the overwhelming evidence put on by the Government at trial.

i.

Johnson first argues that the district court erred in admitting certain summary charts of phone records into evidence. Under Federal Rule of Evidence 1006

, a party “may use a [summary] chart ... to prove the content of voluminous [records] that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying ... by other parties at a reasonable time and place.” Fed.R.Evid. 1006. The Government met all of the elements of Rule 1006 : Johnson does not dispute that the relevant charts summarized voluminous records (300,000 phone records) and that he received the underlying records before trial. Instead, Johnson claims that the district court erred because (1) the Government did not also enter the underlying phone records into evidence, and (2) the district court failed to provide a contemporaneous limiting jury instruction that the charts were not, themselves, proof of facts. These arguments are foreclosed by precedent. See

United States v. Valencia, 600 F.3d 389, 417–18 (5th Cir.2010) (holding that requiring the admission of underlying records “would contravene the plain language and purposes of Rule 1006 ”); United States v. Williams, 264 F.3d 561, 574–75 (5th Cir.2001) (determining that “[a] summary chart that meets the requirements of Rule 1006 is itself evidence and no [limiting] instruction is needed”).

ii.

Next, Johnson argues that the district court improperly admitted certain lay opinion testimony by Detective John Albin and FBI Special Agent Mark Michalek.

Detective Albin testified on direct examination generally about his observations at the scene of the bank robbery charged in Count 14S. This particular bank robbery was notable because Johnson was arrested while fleeing a short distance from the bank. On cross-examination, Johnson's counsel asked about a gun and a glove that Detective Albin found on a grassy median in between the bank and where Johnson was apprehended; specifically, he asked whether Detective Albin could determine if the placement of the items was “consistent with someone dropping [the gun] while they are running.” On re-direct examination, the Government showed Detective Albin photos from inside the bank during the robbery and asked him to compare the glove that he recovered with a glove that one of the robbers was wearing during the robbery.

Johnson argues that Detective Albin's testimony on re-direct examination was improper because it exceeded the scope of cross-examination, involved speculation, and invaded the province of the jury. As an initial matter, we conclude that Detective Albin's re-direct was properly within the scope of Johnson's cross-examination. Johnson's cross-examination was clearly intended to create doubt as to whether he could have been carrying the glove and gun at issue as he was fleeing the scene of the robbery charged in Count 14S. Thus, Johnson opened the door to a re-direct examination that attempted to tie him to those items. Because the re-direct examination was linked to issues brought up during cross-examination, the district court did not abuse its “wide discretion” by admitting the challenged testimony. See 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 611.03[5] (Mark S. Brodin, ed., Matthew Bender 2d ed.2015); see also United States v. Keith, 582 Fed.Appx. 300, 302 (5th Cir.2014)

; United States v. Reed, 277 Fed.Appx. 357, 362–63 (5th Cir.2008). Further, there was nothing particularly speculative about Detective Albin comparing the glove he found at the scene with a glove that one of the bank robbers was wearing in a picture of the robbery, and his testimony did not invade the province of the jury as it was “based on observations and ... did not tell the jury what verdict it should reach or state legal conclusions.” United States v. Flores–Diaz, 176 F.3d 480, 1999 WL 155674, at *3 (5th Cir.1999) (unpublished); see also Fed.R.Evid. 704.

Johnson raises a similar challenge to the testimony of Agent Michalek. Agent Michalek testified on direct examination that “DNA confirmation was found for Raymond Johnson” at the robbery charged in Count 14S. The Government's DNA expert had previously testified that Johnson's DNA could not be excluded from a sample taken from a gun at the crime scene, but that he could not match Johnson to the DNA sample with scientific certainty.²

Johnson argues that Agent Michalek's testimony on direct examination was improper because he offered expert testimony as a lay witness, and the testimony that he provided regarding the DNA evidence was factually incorrect. We need not decide whether Agent Michalek's testimony crossed over into impermissible expert testimony because any error in admitting the evidence was harmless, as the other evidence of Johnson's guilt was overwhelming. See United States v. Williams, 957 F.2d 1238, 1244 (5th Cir.1992)

(holding admission of evidence harmless in light of overwhelming evidence of the defendant's guilt). For example, two of Johnson's co conspirators in the charged robberies testified about participating in the robbery in Count 10S with Johnson, one testified about participating in the robbery in Count 14S with Johnson, and Officer Todd Ritz testified that he arrested Johnson as Johnson was fleeing the scene of the Count 14S robbery.

iii.

Finally, Johnson argues that the admission of several out-of-court statements made to law enforcement violated his rights under the Sixth Amendment's Confrontation Clause. Specifically, Agent Michalek testified that: (1) co-conspirator Carl Turner told him during the course of an interview that Smith recruited him for a bank robbery and that he had phone contact with Smith before the bank robbery; (2) co-conspirator Clayton McClenon stated that he allowed someone to use his van on the...