United States v. McDade ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 14, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-10204
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
MICHAEL McDADE,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before GARWOOD, WIENER, and CLEMENT, Circuit Judges.
GARWOOD:1
Michael McDade (McDade) appeals his conviction for bank
robbery and for “use and carry of a firearm,” violations of 18
U.S.C. §§ 2113(a) and 924(c). His sole contention on appeal is
that the trial court reversibly erred by allowing the government to
cross-examine his wife about his alleged, uncharged drug use. We
assume, arguendo, that the district court erred but, finding the
1
Per 5th Cir. R. 47.5, the court has decided that this
opinion should not be published and is not precedent except under
those limited circumstances set forth by 5th Cir. R. 47.5.4.
claimed error clearly harmless, we affirm.
FACTS AND PROCEEDINGS BELOW
Around 12:30 p.m. on January 8, 2005, a man wearing dark
clothes, a dark hat, and eyeglasses walked into the Wachovia Bank
at 6000 Harris Parkway, Fort Worth, Texas (Wachovia). He
approached Wachovia teller James Todd Mayo (Mayo) and gave Mayo a
note reading: “Attention teller, put 100s, 20s, 50s, 10s in bag.
No ink or funny money. This is not a joke. You have two minutes.
Quiet. Push no buttons.” After Mayo handed him a bag filled with
cash, the robber displayed a gun and told Mayo, “I just want to let
you know this is for real.” The robber left Wachovia with over
$2,000.00.
On January 11, 2005, the robber’s photograph, taken by
Wachovia’s surveillance camera, was published in a Crime Stoppers
bulletin in the Fort Worth Star Telegram newspaper. Evidence was
received without objection that the Fort Worth Police Department
subsequently received two phone calls (from unidentified persons)
identifying McDade as the person shown in the photograph.
On April 18, 2005, Fort Worth Police Officer Don Owings
(Officer Owings) reviewed the case file. Officer Owings testified
that, after seeing the Crime Stoppers tip, he compared the robber’s
physical description given in the bank teller’s offense report with
information known about McDade and found similarities. Officer
Owings next obtained McDade’s photo. Noting a likeness to the
2
individual in the bank surveillance photos, Officer Owings placed
McDade’s photo and five other photographs in a six-person
photospread to show to Wachovia teller Mayo. Mayo picked out
McDade’s photo as the robber. Officer Owings next showed three
bank surveillance photos of the robber to Marcie Hearn, who knew
McDade and who identified him as the individual in the bank
surveillance pictures. Hearn was McDade’s state parole officer,
but that particular information was not before the jury.
Officer Owings arrested McDade on May 2, 2005. A subsequent
search of McDade’s home failed to uncover any item connected to the
robbery. Samples of McDade’s handwriting were submitted to the
FBI’s Questioned Documents Unit, but the FBI was unable to
determine whether McDade wrote the bank robber’s demand note.
On June 15, 2005, a federal grand jury returned a two-count
indictment against McDade: Count One charged him with bank robbery,
a violation of 18 U.S.C. § 2113(a), and Count Two charged him with
“Use and Carry of a Firearm,” a violation of 18 U.S.C. §
924(c)(1)(A)(ii). McDade pleaded not guilty. A trial occurred on
September 12 and 13, 2005, but ended in jury deadlock. The case
was tried again on October 11, 2005.
At the second trial, McDade’s defense included several
witnesses’ testimony: Glenview Baptist Church Pastor Roger Hollar
(Pastor Hollar) testified that on Friday, January 7, 2005, he met
with McDade at the church office, where he arranged to help McDade
3
with his car payment. Pastor Hollar further testified that, also
on January 7, 2005, McDade received groceries from his church and
that, on January 17, 2005, the church helped McDade pay his
utilities bill. McDade’s aunt and mother both testified that they
had never seen McDade wear the type of clothes worn by the bank
robber in the surveillance photos, and McDade’s wife testified that
McDade did not own such clothes. McDade’s aunt Edna Chiles
(Chiles) testified that McDade met her and his mother at Chiles’s
house around 12:00 noon on January 8, 2005, stayed anywhere from 10
to 20 minutes, and then went with Chiles and McDade’s mother to
McDade’s mother’s house to pick up food. Chiles testified that,
after McDade left, she and McDade’s mother sat around and talked
before going to church, arriving at church by 2:00 p.m. McDade’s
mother similarly testified. Chiles testified further that McDade
did not look like the person in the bank surveillance photo because
of different facial features and differently shaped eyeglasses.
Also during the defense’s case-in-chief, McDade’s wife,
Gwendolyn McDade, stated that she and McDade were experiencing
financial difficulties at the time of the robbery. She answered in
the negative when, on direct, defense counsel asked whether McDade
had any unexplained money around the time of the robbery or whether
their financial situation had improved at all:
“Q. Did you notice a change in your finances
after January the 8th?
A. No, sir.
Q. Did Michael show up with any money he
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couldn’t explain where he got it?
A. No, sir.
Q. Did he show up with any money at all?
A. No, sir.
Q. Did he buy anything that you knew about
that he couldn’t explain how he bought it?
A. No, sir.
Q. Were your finances still just as tight as
they were after January 8th as they were
before?
A. Yes, sir.”
After defense counsel finished direct examination of Mrs. McDade,
the prosecutor asked to approach the bench. The following
discussion occurred out of the jurors’ hearing:
“[Prosecutor]: Judge, I believe he’s opened
the door to his drug use. I have a good faith
belief that he was using cocaine, and that’s
where the money very well could have gone. He
asked her if there was any extra money or
anything like that laying around. I have
information from the parole officer that he
was using cocaine when --
THE COURT: Well, he’s opened the door to it so
you can have at it.
[Defense Counsel]: I object to that, Your
Honor.”
The prosecutor then asked McDade’s wife, “Ms. McDade, were you
aware that your husband was using cocaine during this time period?”
McDade’s wife replied, “No ma’am.” The prosecutor next asked,
“Were you aware that he was -- had tested dirty on urinalysis?,” to
which the witness again responded, “No ma’am.” Neither McDade’s
wife nor any other witness called by him testified as to his
character or character for truthfulness. McDade himself did not
testify. McDade’s purported drug use was never again mentioned.
No evidence was presented that McDade ever used or dealt in drugs.
5
No limiting instruction, or instruction to disregard, was given,
nor did McDade ever request one.
On October 11, 2005, the jury returned a guilty verdict on
both counts of the indictment. The trial court sentenced McDade to
consecutive terms of 96 months’ imprisonment for the bank robbery
charge, and 84 months’ imprisonment for the use and carry of a
firearm. McDade timely appealed.
DISCUSSION
We assume, arguendo only, that the two drug use questions
asked of McDade’s wife were improper under United States v.
Beechum, 582 F.2d 898 (5th Cir. 1978), and its progeny, or that, to
the extent potentially properly relevant (in respect to motive or
explaining the evidence of McDade not exhibiting post-robbery
cash), they were nevertheless improper because they were never
connected up by any evidence showing any drug use (or dealing) by
McDade. See, e.g., United States v. Ridlehuber, 11 F.3d 516, 522
(5th Cir. 1993).2 We likewise assume, arguendo only, that McDade’s
generic objection was sufficient (but see United States v. Polasek,
2
McDade does not assert on appeal, and did not assert
below, that the prosecutor did not “have a good faith belief that
he was using cocaine” and “information from the parole officer
that he was using cocaine.” There is no evidence (apart from
McDade’s wife’s negative answer to the two questions about her
knowledge of this) he was not then using cocaine. The PSR states
(in a portion not objected to by McDade) that “In December 2004,
he tested positive for cocaine, according to the defendant” and
he “stated he was associating with the wrong people which led to
his drug use.”
6
162 F.3d 878, 883 (5th Cir. 1998)), and that the failure to ever
move to strike the questions or request a limiting instruction (or
instruction to disregard) was not fatal to adequate preservation of
the objection (see Huddleston v. United States, 108 S.Ct. 1496,
1501-02 & n.7 (1988)) because the trial court simply overruled the
objection rather than allowing the question conditionally or
subject to a proper showing of McDade’s drug use or dealing. See
United States v. Anderson, 933 F.2d 1261, 1273 (5th Cir. 1991).
Nevertheless, it is clear that from the record as a whole that
any properly preserved error respecting allowance of the two drug
use questions was harmless error under FED. R. CRIM. P. 52(a). See,
e.g., United States v. Williams, 957 F.2d 1238, 1244 (5th Cir.
1997).
McDade’s wife answered the two brief drug-related questions in
the negative, and there was no other mention by any witness or
attorney, during testimony or in argument to or within hearing of
the jury, concerning drugs. Conversely, there was strong evidence
identifying McDade as the bank robber. Wachovia teller Mayo was
unequivocal in his in-court identification of McDade and had ample
opportunity to observe him at close range during the robbery.
Prior to the robbery, Mayo had been trained “to look at people in
the event that there is something that happens to identify them”
including “making special note of facial characteristics.” Mayo
likewise testified as to picking McDade’s picture out of the
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photographic line up, the separate picture being introduced in
evidence as well as the entire photographic spread. Hearn
testified that she had worked with McDade, helping him get a job
and seeing how he was doing at any job he got, and had met with him
about ten times. She identified McDade in court. She also
identified McDade as the person shown in the bank surveillance
photographs and testified that she previously had done so when
shown those photographs by Officer Owings. There was no doubt in
her mind. The surveillance photographs were introduced in
evidence. Officer Owings corroborated Hearn’s testimony as to her
earlier having identified McDade from the surveillance photographs.
Hearn further testified that McDade wore glasses and, though he
“was always between jobs,” he “dressed real sharp, real sharp.”3
Hearn also testified that she did not see McDade in January 2005,
and he missed his January 12, 2005, appointment with her.
McDade points out that the two drug use questions were not
asked in his first trial that ended in a hung jury and contends
that this fact demonstrates reversible error. However, the two
trials’ disparate outcomes could as likely have been due to other
factors.4 For example, the record indicates that in the second
3
Including “nice pants, nice shoes, silk shirts . . .
really nice shoes . . . alligator, ostrich . . .,” and often
wearing a “couple of gold necklaces, gold rings.”
4
The testimony at the two trials was much the same except
that Hollar did not testify at the first trial. However, his
testimony at the second trial was impeached by confusion as to
8
trial, but not the first, jurors were given individual copies of
the bank surveillance photos.
CONCLUSION
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
dates.
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