United States v. Michael Berry Cody , 136 F. App'x 297 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14607 JUNE 22, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 03-00507-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL BERRY CODY,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 22, 2005)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
A jury convicted Michael Berry Cody of bank robbery, in violation of 18
U.S.C. § 2113(a) (count 1); attempted bank robbery, in violation of 18 U.S.C. §
2113 (a) and (d) (count 2); and carrying or using a firearm during the commission
of the attempted bank robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count
3). Cody appeals his convictions on all counts and sentences. We affirm his
convictions, but vacate his sentences on counts one and two in light of United
States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), and remand for resentencing.
We consider each of Cody’s four arguments in turn.
DISCUSSION
I. Sufficiency of the Evidence
Cody first argues that the evidence supporting his convictions is insufficient
because eyewitness identification is unreliable, as is the testimony of witnesses
regarding their level of certainty in an identification. He argues that the in-court
identification of him during his trial was impermissibly suggestive and ensured
that he would be identified by the bank employees because he was seated at the
defense table and was the only person in the courtroom that fit the robber’s
description. He further argues that there was insufficient evidence to support his
conviction of carrying a firearm since the evidence presented was not sufficient for
a reasonable trier of fact to conclude that the object he revealed was a firearm, as
defined by the statute, and not a toy gun.
We review de novo whether sufficient evidence supports a jury’s verdict.
United States v. Byrd, 403 F.3d 1278, 1288 (11th Cir. 2005). We view the
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evidence in the light most favorable to the government and resolve all reasonable
inferences and credibility determinations in the government’s favor. Id. “A
conviction must be upheld unless the jury could not have found the defendant
guilty under any reasonable construction of the evidence.” Id.A. Counts 1 and 2
To convict a defendant of bank robbery or attempted bank robbery the
government must prove that the defendant: 1) took or attempted to take; 2) from
the person or presence of another, 3) money or anything of value; 4) belonging to
or possessed by a federally insured bank; 5) by force, violence, or intimidation.
See 18 U.S.C. §§ 2113(a), (f). We have recognized that issues associated with
eyewitness identification, which include perception and memory, “can be
adequately addressed in cross-examination and that the jury can adequately weigh
these problems through common-sense evaluation.” United States v. Smith, 122
F.3d 1355, 1357 (11th Cir. 1997) (quoting United States v. Thevis, 665 F.2d 616,
641 (5th Cir. Unit B 1982)).
To establish that an in-court identification was unnecessarily suggestive, a
defendant must show that the identification was “so impermissibly suggestive as
to give rise to a very substantial likelihood of misidentification.” Code v.
Montgomery, 725 F.2d 1316, 1319 (11th Cir. 1984). In determining the reliability
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of in-court identifications, we consider the totality of the circumstances which
include: 1) the opportunity of the witness to view the criminal at the time of the
crime; 2) the witness’s degree of attention; 3) the accuracy of the witness’s prior
description of the criminal; 4) the level of certainty demonstrated by the witness at
the confrontation; and 5) the length of time between the crime and the
confrontation. Id.Witness testimony established that a robber took money from one federally
insured bank and attempted to take money from a second federally insured bank,
thus establishing the elements of the offenses. Furthermore, multiple eyewitnesses
described the robber as matching Cody’s general appearance and three
eyewitnesses specifically identified Cody as the perpetrator in both offenses.
After a review of the record and the parties’ briefs, we conclude that Cody has not
shown that the in-court identifications made by the eyewitnesses were so
impermissibly suggestive as to give rise to a very substantial likelihood of
misidentification since the totality of the circumstances suggests that their in-court
identifications were reliable. As a result, the record contains sufficient evidence to
support the jury’s guilty verdict in Cody’s bank robbery and attempted bank
robbery offenses. Therefore, we affirm Cody’s convictions on counts one and
two.
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B. Count 3
To sustain a conviction for carrying or using a firearm during the
commission of a crime, the government must present sufficient evidence that the
defendant 1) carried or used a firearm 2) during and in relation to the commission
of a crime of violence. See 18 U.S.C. § 924(c)(1)(A); see also United States v.
Timmons, 283 F.3d 1246, 1250-52 (11th Cir. 2002) (affirming conviction under §
924(c)(1)(A) for carrying a firearm in relation to drug trafficking offense because
it was based on sufficient evidence). The government is not required to show to a
“scientific certainty” that a defendant was carrying a gun as defined by the statute,
nor is it required to present the gun into evidence. United States v. Woodruff, 296
F.3d 1041, 1049 (11th Cir. 2002). “The government must present sufficient
testimony, including the testimony of lay witnesses, in order to prove beyond a
reasonable doubt that a defendant used, possessed or carried a ‘firearm’ as that
term is defined [in the statute].” Id.The record contains sufficient evidence to support the jury’s guilty verdict
on Cody’s firearm count in light of the testimony by one of the bank tellers that
she was familiar with guns and saw the handle of a gun in Cody’s waistband.
Therefore, we affirm Cody’s conviction on count 3.
II. Confrontation Clause
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Cody asserts that the district court violated his Sixth Amendment
confrontation right when it denied him the opportunity to question the case agent
investigating his case about a bank robbery committed by a person matching
Cody’s description that occurred while he was incarcerated.
We review a district court’s ruling on the extent of cross-examination for
abuse of discretion. See United States v. Garcia, 13 F.3d 1464, 1468 (11th Cir.
1994). “The district court has discretionary authority to rule on the admissibility of
evidence, including the power to limit cross-examination. The district court’s
discretion is limited, however, by the requirements of the Sixth Amendment.” Id.(internal citations omitted). “The test for the Confrontation Clause is whether a
reasonable jury would have received a significantly different impression of the
witness’ credibility had counsel pursued the proposed line of cross-examination.”
United States v. Diaz, 26 F.3d 1533, 1539-40 (11th Cir. 1994) (quotation and
citation omitted). Once there is sufficient cross-examination to satisfy the
Confrontation Clause, the district court may limit further cross-examination within
its discretion. Id. at 1539.
The district court did not abuse its discretion by limiting the scope of
Cody’s cross-examination of the case agent. Cody had full opportunity to attack
the agent’s credibility, which was not unduly limited by the court’s ruling.
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Furthermore, allowing Cody to explore the facts and circumstances of the other
bank robberies would have brought before the jury a host of details that may have
confused the jury. Because a reasonable juror would not have received a
significantly different impression of the agent’s credibility had the court allowed
Cody to pursue that line of cross-examination, the district court did not violate the
Confrontation Clause. Therefore, we affirm the court’s evidentiary ruling as
within its discretion.
III. Prejudicial Statements
Cody contends that several prejudicial statements were made during the
course of his trial, and that, while none of the statements individually warrant
relief, the cumulative effect of the statements warrant reversal, even though he did
not make objections. He asserts that statements by a police officer at Veterans
Administration Medical Center (VA) indicating that he saw Cody on a news
broadcast regarding “numerous bank robberies” infers that Cody was involved in
more than the bank robberies for which he was charged. He contends that the
officer’s testimony that he worked in a “special post” at the VA indicated that
Cody was receiving treatment for substance abuse and implied that Cody required
special security precautions. He asserted that the clear implication of the case
agent’s testimony describing Cody’s transportation to and from the holding facility
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to the court for his initial appearance was that Cody was held without bond after
his arrest, and the effect was to negate the presumption of innocence.
Because Cody did not object to the statements made during his trial, we
review for plain error. United States v. Hall, 314 F.3d 565, 566 (11th Cir. 2002).
Under a plain error standard, Cody must show: 1) an error occurred; 2) that was
plain; 3) and affected his substantial rights; and 4) seriously affected the fairness,
integrity, or public reputation of judicial proceedings. Id.Federal Rule of Evidence 403 provides that relevant evidence can be
excluded if it is unduly prejudicial. Fed. R. Evid. 403. Though it is within the
court’s discretion to exclude prejudicial evidence, the district court did not plainly
err in allowing the statements Cody now alleges were prejudicial. As we
recognized in Hall, a district court is not required to intervene sua sponte and
instruct a jury to disregard statements that may be objectionable. See Hall, 314
F.3d at 566. Thus, even assuming that the district court erred, that error was not
plain. Id. Because Cody cannot satisfy the plain error standard, his argument
challenging the evidence as prejudicial must fail, and his conviction must stand.
IV. Booker/Blakely
Finally, Cody argues, in light of Booker, that his sentence for counts one
and two should be vacated as a result of a two-level enhancement of his offense
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level for a “threat of death” and increase in his criminal history category as a result
of prior convictions.
Because Cody objected before the district court, we review Cody’s sentence
de novo, and will vacate and remand only for harmful error. United States v. Paz,
405 F.3d 946, 948 (11th Cir. 2005). “To find harmless error, [this Court] must
determine that the error did not affect the substantial rights of the parties.” United
States v. Hernandez, 160 F.3d 661, 670 (11th Cir. 1998). Under harmless error
review, the government bears the burden of establishing the absence of prejudice
to the defendant’s substantial rights.
In Booker, the Supreme Court concluded that: “Any fact (other than a prior
conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt.” __ U.S.
at __, 125 S. Ct. at 756. Pursuant to Booker, “the Sixth Amendment right to trial
by jury is violated where under 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 (U.S. Feb. 23, 2005) (No. 04-1148).
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Recently, this Court explained in United States v. Shelton that there are two
types of Booker error: 1) constitutional error resulting from enhancements based
on impermissible judicial fact-finding, and 2) statutory error resulting from
application of the guidelines in a mandatory fashion. 400 F.3d 1325, 1331 (11th
Cir. 2005).
With respect to Cody’s contention that the district court’s use of his prior
convictions to enhance his sentence, we simply note that in Booker, the Supreme
Court “left undisturbed its holding in [Almendarez-Torres], that recidivism is not a
separate element of an offense that the government is required to prove beyond a
reasonable doubt.” United States v. Orduno-Mireles, No. 04-12630, slip op. at
1792 (11th Cir. Apr. 6, 2005); see also United States v. Camacho-Ibarquen, 404
F.3d 1283, 1290 (11th Cir. 2005). Therefore, the district court did not violate the
Sixth Amendment by relying on Cody’s prior convictions to determine his
sentence.
Nevertheless, the government has failed to prove that the sentence
enhancement based on a finding that Cody made a threat of death did not violate
the Sixth Amendment. Likewise, the government concedes that the district court
erred in sentencing Cody under a mandatory sentencing scheme. Because the
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government has not carried its burden of showing that these errors were harmless,
we vacate Cody’s sentences for counts one and two, and remand for re-sentencing.
CONCLUSION
For the reasons discussed above, we affirm Cody’s convictions because
sufficient evidence supports the convictions, the district court did not violate his
Sixth Amendment right to confrontation, and the district court did not plainly err
in admitting potentially prejudicial witness statements. Nevertheless, because the
district court committed statutory and constitutional Booker error, we vacate
Cody’s sentences for counts one and two, and remand for re-sentencing.
AFFIRMED IN PART, VACATED IN PART AND REMANDED.
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