United States v. Harding ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 30 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-5136
(D.C. No. 99-CR-72-K)
TERRY HARDING, also known as (N.D. Okla.)
Terrell Harding, also known as Terry
Terrell Harding, also known as T-Roc,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Terrell Harding appeals from his conviction for bank robbery,
aiding and abetting, and use of a firearm during a crime of violence. He
challenges three evidentiary rulings by the district court as improper and
prejudicial and contends that they require reversal, either as fundamental or plain
error. Our jurisdiction over this appeal arises from 28 U.S.C. § 1291; we review
the district court’s rulings to admit or exclude evidence only for an abuse of the
court’s discretion. United States v. Davis , 40 F.3d 1069, 1073 (10th Cir. 1994).
Our review of the record on appeal in light of the standard of review and
applicable substantive law convinces us that the challenged evidentiary rulings
were not error. First, defendant contends that certain testimony from a bank teller
who witnessed the crime--that she feared for her life and that another teller was
crying--was irrelevant and unduly prejudicial. The statutory provisions under
which defendant was charged and ultimately convicted, 18 U.S.C. § 2113(a), (d),
make it clear that this testimony was relevant. 1
Further, in light of ample other,
unchallenged, testimony regarding defendant’s repeated threats to kill her and her
belief in that intent, the challenged testimony was not unduly prejudicial.
1
Section 2113(a) proscribes the taking of bank monies “by force and
violence, or by intimidation.” Section 2113(d) provides for an additional term of
incarceration for a person who, in committing a bank robbery, “assaults any
person, or puts in jeopardy the life of any person by the use of a dangerous
weapon or device.”
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Second, defendant contends that the district court wrongly allowed
testimony regarding an accomplice’s prior convictions, including a conviction for
perjury for falsely testifying in defendant’s first criminal trial. He argues that the
government was trying to infer he had threatened his accomplice. The trial
transcript indicates that the accomplice was directly asked several times whether
defendant had threatened him or coerced his false testimony in any way; however,
the accomplice denied any threats or fear of defendant in connection with his
testimony. Accordingly, defendant has shown no prejudice arising from this
testimony. Without a showing of prejudice, defendant cannot prevail on his
argument that the error amounted to plain error. 2
See United States v. Olano , 507
U.S. 725, 734 (1993) (noting that defendant has the burden of persuasion with
regard to prejudice resulting from plain error).
Lastly, defendant contends that the district court improperly restricted
testimony of his accomplice on cross-examination regarding the accomplice’s
understanding of his plea agreement with the government. This argument has no
merit. Despite the district court’s ruling restricting testimony which conflicted
with Fed. R. Crim. P. 11(e), 3
defendant’s accomplice was allowed to testify fully
2
Defense counsel did not object to this line of questioning, and therefore this
court reviews the challenge only for plain error. See Dodoo v. Seagate
Technology, Inc. , 235 F.3d 522, 529 (10th Cir. 2000).
3
Defendant’s accomplice was prevented from answering a question from
(continued...)
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as to the benefits of his plea bargain with the government. Therefore the district
court’s ruling did not result in undue prejudice to defendant.
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
Robert H. Henry
Circuit Judge
3
(...continued)
defense counsel about whether the government had promised him, as part of his
plea bargain, concurrent sentencing for his armed robbery and perjury
convictions. The district court, in accord with Fed. R. Crim. P. 11(e), noted that
the government cannot make such a promise. Rule 11(e)(1)(B) provides that the
government can agree to either recommend or not oppose requests for a particular
sentencing provision, but notes that the recommendation is not binding on the
court.
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