United States v. Elester Middlebrook ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 18, 2005
No. 04-14390 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00431-CR-BBM-1-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELESTER MIDDLEBROOK,
JONATHAN REMON MIDDLEBROOK,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(July 18, 2005)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Elester Middlebrook (“E. Middlebrook”) and Jonathan Remon Middlebrook
(“J. Middlebrook”) (collectively “the Middlebrooks”) and three others were
charged in a three-count superceding indictment with robbing the Wachovia Bank
Atlanta Money Center (the “Money Center”), in violation of 18 U.S.C. §§ 2113(a)
and (d) (Count One); possession of a firearm during a bank robbery, in violation of
18 U.S.C. § 924(c) (Count Two); and conspiracy to take currency by threat or
violence, which obstructed commerce, in violation of 18 U.S.C. § 1951 (Count
Three).1 The Middlebrooks pled not guilty and stood trial before a jury. The jury
found them guilty as charged and the court sentenced them to prison. They now
appeal their convictions and sentences.
Together, the Middlebrooks raise the following issues: (1) whether the
Government failed to establish that the Federal Deposit Insurance Corporation
(“FDIC”) insured the Money Center at the time of the robbery; (2) whether the
district court erred in adjudging them guilty of both 18 U.S.C. §§ 1951 and 2113;
and (3) whether the court erred by sentencing them under the (then) mandatory
Federal Sentencing Guidelines in derogation of the Supreme Court’s holdings in
United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In
addition to above, E. Middlebrook submits these issues: (1) whether the district
1
These co-defendants were Darryl Shortt, Larry Preston, and Sal Mineo Simpson. They
pled guilty to one or more of the indictment’s three counts and testified as prosecution witnesses
at the Middlebrooks’s trial.
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court abused its discretion by failing to strike FBI Agent Daniel Phillip Sindall’s
testimony that he knew that E. Middlebrook committed the bank robbery; (2)
whether the court violated Booker by sentencing him to a seven-year consecutive
sentence for brandishing a firearm under 18 U.S.C. § 924(c)(1)(A)(ii); and
(3) whether the district court clearly erred by failing to provide a three-level
reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. We begin
in Part I with the Middlebrooks’s joint challenges to their convictions. In Part II,
we address E. Middlebrook’s additional challenge to his convictions. Then, in
Part III, we examine the Middlebrooks’s sentences under Booker.
I.
A.
The Middlebrooks contend that the testimony of a bank employee that the
FDIC insured the Money Center was insufficient to establish that the FDIC
actually insured the bank; therefore, the district court should have granted their
motion for judgment of acquittal on Count One. They contend that to establish this
element of the offense, the Government had to present either the testimony of a
bank officer or a certificate of insurance.
We review the denial of a motion for judgment of acquittal de novo. United
States v. Evans, 344 F.3d 1131, 1134 (11th Cir. 2003). When evaluating the
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evidence, we do not defer to the district court’s determination that it was sufficient
to convict. Instead, we view the evidence in a light most favorable to the
Government, and draw all reasonable inferences and credibility choices in favor of
the jury’s verdict. Id. We will not overturn a jury’s verdict “‘if any reasonable
construction of the evidence would have allowed the jury to find the appellant
guilty beyond a reasonable doubt.’” United States v. Ventura, 936 F.2d 1228,
1230 (11th Cir. 1991) (quoting United States v. Bonavia, 927 F.2d 565, 569-70
(11th Cir. 1991)).
“To establish federal jurisdiction and to prove a violation of [18 U.S.C.] §
2113, the Government must show that the bank was insured by the FDIC at the
time of the robbery.” United States v. Maner, 611 F.2d 107, 108 (5th Cir. 1980).
Although the government may present sparse proof of such insurance, “[s]parse
evidence . . . can be enough.” United States v. Brown, 616 F.2d 844, 848 (5th Cir.
1980). Consequently, “[u]ncontradicted testimony [that] the deposits were
federally insured is sufficient.” United States v. Baldwin, 644 F.2d 381, 385 (5th
Cir. May 4, 1981).
We conclude that the Government provided sufficient evidence for the jury
to find that the Money Center was federally insured as alleged in the indictment by
presenting the uncontradicted testimony of the bank manager who stated that FDIC
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insurance was in effect on the day of the robbery.
B.
The Middlebrooks contend that the district court erred in adjudging them
guilty and sentencing them for violation of both 18 U.S.C. § 2113 and 18 U.S.C. §
1951 because the bank robbery statute, § 2113, is a comprehensive scheme for
punishing those who rob federally insured banks and thus should be exclusively
used to proscribe conduct within its coverage.
Ordinarily, we review whether counts in an indictment are multiplicitous de
novo. United States v. Smith, 231 F.3d 800, 807 (11th Cir. 2000). However,
because the Middlebrooks raise this issue for the first time on appeal, we examine
the district court’s decision (to convict and sentence them under both statutes) for
plain error. United States v. Peters, 403 F.3d 1263 (11th Cir. 2005). “Under plain
error review, which is authorized by Fed. R. Crim. P. 52(b), federal appellate
courts have only a limited power to correct errors that were forfeited because [they
were] not timely raised in [the] district court.” Id. (citations and internal quotation
marks omitted). Plain error exists where there is (1) error that (2) is plain, (3)
affects the defendant’s substantial rights, and (4) “affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. at 1271 (citation and internal
quotation marks omitted). “It is the law of this circuit that, at least where the
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explicit language of a statute or rule does not specifically resolve an issue, there
can be no plain error where there is no precedent from the Supreme Court or this
Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291
(11th Cir. 2003).
We discern no plain error here. Neither statute (§ 2213 or § 1951), nor
Eleventh Circuit case law, nor Supreme Court precedent prohibits the simultaneous
conviction under §§ 2113 and 1951 in the factual scenario this case presents.
II.
E. Middlebrook contends that the district court abused its discretion in
overruling his objection to, and motion to strike, Agent Sindall’s statement from
the witness stand that “I showed him [,i.e., one of the cooperating co-defendants]
these three photographs purposely hiding their names because I knew these were
the individuals involved in the bank robbery. . . .” Agent Sindall made the
statement after the Government had recalled him to the stand following co-
defendant Simpson’s testimony and had concluded its direct-examination.
Part of the testimony Simpson gave during his first appearance on the stand
concerned the first time Agent Sindall interviewed him (about six months after the
robbery occurred). During that interview, Simpson identified certain photographs,
including the Middlebrooks’s photos. On cross-examination, defense counsel
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attempted to leave the jury with the impression that when Simpson identified the
photographs, he saw the names J. Middlebrook and E. Middlebrook which
appeared on the paper on which their respective photos had been printed. The
Government recalled Simpson to clarify for the jury that when Agent Sindall
showed Simpson the Middlebrooks’s photos, he folded the papers so that Simpson
could not see the Middlebrooks’s names. The Sindall statement E. Middlebrook
challenges, “I showed him these photographs. . . ,” came on the cross-examination
being conducted by J. Middlebrook’s attorney. After Sindall made the statement,
E. Middlebrook’s attorney objected and moved the court to strike it on the ground
that Sindall was giving his opinion that the Middlebrooks “were the ones involved
in the bank robbery.” In other words, in investigating the crime, Sindall had
concluded—it was his opinion—that the Middlebrooks had committed it. As a lay
witness, however, he was precluded from rendering such opinion because it
trenched on the ultimate issue the jury had to decide: whether the Middlebrooks
participated in the robbery.
“The ultimate decision as to the admissibility of lay opinion testimony is
committed to the sound discretion of the district court and will not be overturned
on appeal unless there is a clear abuse of discretion.” United States v. Pierce,
136 F.3d 770, 773 (11th Cir. 1998) (citation and internal quotation marks omitted).
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If the district court abused its discretion in admitting evidence, we may still affirm
if the error was harmless. See United States v. Frazier, 387 F.3d 1244, 1267 n.20
(11th Cir. 2004). “Evidentiary decisions do not constitute reversible error ‘unless a
substantial right of the party is affected,’ Fed.R.Evid. 103(a), and errors that do not
‘affect substantial rights must be disregarded.’ Fed. R. Crim. P. 52(a).” Id. “Errors
do affect a substantial right of a party if they have a ‘substantial influence’ on the
outcome of a case or leave ‘grave doubt’ as to whether they affected the outcome
of a case.” Id. (citations omitted). The Government has the burden of showing an
error was harmless. See e.g., United States v. Monroe, 353 F.3d 1346, 1352 (11th
Cir. 2003).
Under Fed.R.Evid. 701,
If the witness is not testifying as an expert, the witness’ testimony in
the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the
witness, (b) helpful to a clear understanding of the witness’ testimony
or the determination of a fact in issue, and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule
702.
Fed.R.Evid. 701. “Rule 403 [of the Federal Rules of Evidence] permits the
exclusion of relevant evidence ‘if its probative value is substantially outweighed by
the danger of unfair prejudice.’” Pierce, 136 F.3d at 775 (citation omitted.).
We conclude that the district court abused its discretion by failing to strike
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Sindall’s statement that he knew E. Middlebrook was involved in the bank
robbery; the statement was not based on perceptions as Sindall was not present
when the robbery occurred. The error was harmless, however, because the great
weight of evidence—in particular, the testimony of co-conspirators—implicated E.
Middlebrook in the planning and commission of the robbery.
III.
The Middlebrooks contend that the district court infringed their Sixth
Amendment right to a trial by jury under United States v. Booker by enhancing
their sentences based on facts the existence of which the jury did not find and they
did not admit. In Booker, the Supreme Court held that the Sixth Amendment right
to trial by jury is denied where “[u]nder a mandatory guidelines system, a sentence
is increased because of an enhancement based on facts found by the judge that
were neither admitted by the defendant nor found by the jury.” United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), petition for cert. filed,
73 U.S.L.W. 3531 (Feb. 23, 2005) (No. 04-1148). The sentencing court does not
err, however, when it “use[s] extra-verdict enhancements in a non-mandatory
guidelines system.” Id. at 1300. Thus, there are two types of errors in sentencing
under the Federal Guidelines: (1) the constitutional through the use of
“extra-verdict enhancements to reach a guidelines result that is binding on the
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sentencing judge,” and (2) the statutory through the use of the Guidelines in a
mandatory fashion. See United States v. Shelton, 400 F.3d 1325, 1331 (11th Cir.
2005).
At sentencing, the district court made factual findings (unsupported by the
jury’s verdict or the Middlebrooks’s admissions) in determining the
Middlebrooks’s sentences, thereby infringing their Sixth Amendment right to a
jury determination. See United States v. Paz, 405 F.3d 946, 948 (11 th Cir. 2005).
The question thus becomes whether the Government has shown that the error was
harmless beyond a reasonable doubt. See id. An error is harmless if it does not
affect the defendant’s substantial rights. Id. In other words, the Government must
convince us that “it is clear beyond a reasonable doubt that the error complained of
did not contribute to the [sentence] obtained.” Id. (citation and internal quotation
marks omitted). Put another way, the error is harmless if “the Government . . .
show[s] that the mandatory, as opposed to the advisory, application of the
guidelines did not contribute to the defendant’s sentence.” United States v. Davis,
407 F.3d 1269, ____ (11th Cir. 2005).
We conclude that the district court’s constitutional error was not harmless.
We do not know what the district court would have done had it treated the
Guidelines as advisory. The inference that the district court would give the
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Middlebrooks the same sentences based on the court’s decision to sentence them to
the highest sentence in the Guideline range does not meet the beyond-a-reasonable-
doubt standard because it does not establish that the constitutional error did not
contribute to the defendants’ sentences. Accordingly, we vacate the
Middlebrooks’s sentences and remand the case for resentencing.2
SO ORDERED.
2
In his brief, in addition to rasing the Sixth Amendment Booker issue we have
addressed, E. Middlebrook contends that the district court clearly erred in refusing to adjust his
offense levels downward for acceptance of responsibility. Appellant’s brief at 12. Since
Middlebrook will receive a new sentencing hearing on remand, we need not and do not reach the
acceptance-of-responsibility issue.
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