United States v. Thomas , 116 F. App'x 727 ( 2004 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0139n.06
Filed: December 1, 2004
No. 03-1691
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF MICHIGAN
)
KENNETH ROY THOMAS, ) OPINION
)
Defendant-Appellant. )
BEFORE: MARTIN, COLE, and GIBBONS, Circuit Judges.
R. GUY COLE, JR., Circuit Judge. Defendant-Appellant Kenneth R. Thomas was
convicted of bank robbery in the United States District Court for the Western District of Michigan.
On appeal, Thomas argues that the district court erred when it: (1) failed to suppress an unduly
suggestive identification; (2) submitted the case to the jury on the element of intimidation; (3)
allowed the prosecution to examine Thomas about his possession of a knife and a crack pipe; and
(4) allowed the prosecution to examine Thomas on the details of prior convictions. Because we find
that the unduly suggestive identification was reliable under the totality of the circumstances, that
there was sufficient evidence to submit to the jury on the element of intimidation, and that the
examination about the knife and crack pipe as well as the examination on the details of prior
convictions do not rise to the level of plain error, we AFFIRM the judgment of the district court.
No. 03-1691
United States v. Thomas
I. BACKGROUND
On September 23, 2002, a man entered a Bank One branch in Grand Rapids, Michigan,
approached a teller window, and demanded “your hundreds, your fifties,” and a pack of tens.
Tolanda Staten, the teller, testified that the robber ordered her to either “[g]o talk to them,” or
“[d]on’t talk to them,” but she was uncertain exactly what he said. Staten was so distraught she
forgot bank procedures and her manager’s name, but she did give the robber a pack of tens with a
dye pack in it. After the robber fled, she shouted to the bank manager that she had been robbed and
called the police to give them a description of the robber. Staten described the robber as an African-
American man wearing a gray sweatshirt with a nylon jacket underneath.
Police officers apprehended Kenneth Thomas several blocks away, as he was running
through a park. An officer testified that as he approached he saw Thomas rubbing his hands on the
ground. His hands had red marks and grass stains on them. Between where Thomas was
apprehended and the bank, the police found a bicycle, a maroon ski cap, and a gray sweatshirt
stained with red dye. They also recovered some money and the exploded dye pack.
Police officers asked several witnesses to identify the suspect. Neither the bank teller nor
another bank customer who saw the robber in the parking lot could identify Thomas as the robber.
Troy Short, a former bank employee, was in the bank at the time of the robbery but did not
see it happen. After he heard that a robbery had occurred, he looked outside and saw the dye pack
explode. He did not, however, see “anybody or anything at that particular time.” When he went
outside, bystanders told him, “[h]e’s going that way.” Short looked down the street and saw “an
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individual in a white or light-colored sweatshirt and black pants on a bicycle.” He testified that this
individual was “[q]uite a ways [away]. Probably a half a block, a hundred yards.”
Police took Short to where they had apprehended Thomas. Short identified Thomas, who
was in handcuffs, as a man he had seen in the bank just prior to the robbery, noting that he was
“reasonably sure” his identification was correct. At trial, Short testified that he had seen Thomas
enter the bank and had looked right at him. He did not give a pre-identification description, but
described the man at trial as wearing black pants and a gray sweatshirt with “some sort of hood over
the top - over the top of his head.” Short also testified that he had been trained in identification and
standard procedures for bank robberies.
Thomas was taken to the jail where he tried to flush currency down the toilet. Prison
employees found money in his clothing, on the floor, and inside the toilet. When added to the
money recovered by police in the parking lot and on Thomas at the time of his arrest, the total
amounted to $3,240, only ten dollars less than the amount stolen from the bank.
At trial, the evidence admitted included a bank surveillance tape and five photographs of the
defendant after his arrest. In addition, two inmates testified that Thomas bragged about committing
the robbery.
Thomas testified that the money on his person was from a poker game he was playing prior
to his arrest. He explained that he ran when someone said there were police in the area. In addition,
he testified that he was running at the time of his arrest because four or five people, whom he
believed to be drug dealers, were chasing him on bicycles.
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II. ANALYSIS
A. Motion to Suppress Short’s Identification
We review the district court’s factual findings for clear error and its legal conclusions de
novo. United States v. Crozier, 259 F.3d 503, 510 (6th Cir. 2001).
At trial, Thomas moved to suppress Short’s identification. The trial court denied the motion.
The court determined that the “show-up” identification procedure used by the police was unduly
suggestive. However, the court determined that under the totality of the circumstances, the
identification was reliable.
We agree with the district court that asking Short if Thomas was the individual he had seen
in the bank, while Thomas was in handcuffs in police custody, was unduly suggestive. However,
we also agree that under the totality of the circumstances, the identification was reliable.
There are five factors to consider when determining whether an identification was reliable
under the totality of the circumstances. Those factors are: (1) the opportunity of the witness to view
the perpetrator during the crime; (2) the witness’s degree of attention to the perpetrator; (3) the
accuracy of the witness’s prior description of the perpetrator; (4) the level of certainty demonstrated
by the witness upon identification; and (5) the length of time between the crime and the
identification. Id.In this case, the witness did have an opportunity to view the suspect. Short testified that in
the bank he looked “right up into his face, right into his eyes.” In addition, Short saw the witness
fleeing on his bicycle. Although Short was far away, this second opportunity aided his ability to
identify the robber. Thus, even though Short’s observation in the bank was relatively brief and his
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United States v. Thomas
second observation was from a relatively far distance, we conclude that they provided Short a
sufficient opportunity to view the suspect.
Second, Short testified that he paid particular attention to the man he observed in the bank.
However, Short could not testify to the reason he paid attention to the man. To analyze the
sufficiency of an eyewitness’s degree of attention, we generally examine the circumstances
surrounding the witness’s encounter. We grant more reliability to those encounters that allowed the
witness to view the assailant with a “heightened degree of attention, as compared with ‘disinterested
bystanders or casual observers.’” Id. at 511. Generally, we place greater trust in witness
identifications made during the commission of a crime because the witness has a reason to pay
particular attention to the perpetrator, especially when the witness is in danger. See United States
v. Meyer, 359 F.3d 820, 826 (6th Cir. 2004) (finding heightened degree of attention where witness
spoke with robber and studied his features while looking for an opportunity to escape); Crozier, 259
F.3d at 511 (finding heightened degree of attention where robber confronted the witnesses with a
gun).
Short’s encounter inside the bank was limited to a time period before the commission of the
robbery. He was not held captive by the robber, he was not confronted with a gun, and he did not
see the crime occur. He did not have any reason, beyond that of a casual observer, to pay particular
attention to the man. Short did testify, however, that he had training in the identification of people.
Yet, Short had little reason to engage his identification training since he did not know a crime was
about to occur.
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Short’s second encounter with the suspect was after the crime, when he had a reason to study
the suspect. Although Short had more reason to focus his attention on the man, he was at a greater
distance and therefore could not see the suspect as clearly. Thus, although Short did testify that he
paid particular attention to the suspect and had a reason to study him as he fled on his bike, Short
had no particular reason to study the man he saw in the bank prior to the commission of the crime.
We therefore find that his period of observation was most consistent with that of a “disinterested
bystander or casual observer.”
Third, Short did not describe the perpetrator prior to his identification. Although the district
court held that this factor was therefore unhelpful, the lack of a pre-identification description weighs
in favor of the defendant. “If [the witness] failed to describe [the suspect] before being presented
with his photo in a suggestive manner, that fact should not be ignored, but rather cuts in favor of [the
defendant]’s argument that [the witness] identified him merely because of the suggestive photo line
up.” Crozier, 259 F.3d at 512. Thus, the police officers’ failure to obtain a pre-identification
description made the identification less reliable.
The two remaining factors, however, enhance the reliability of the identification and weigh
in favor of the district court’s finding of sufficient reliability. Short testified that he was “reasonably
sure” the man he identified was the man in the bank prior to the commission of the robbery. In our
view, this indicates a sufficient level of certainty to support the reliability of Short’s identification.
Moreover, Short made this identification a short time after he first observed the man, which further
supports the reliability of Short’s identification.
Weighing all these factors, we find that the identification was sufficiently reliable.
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B. Sufficiency of Evidence on Intimidation Element
We review a sufficiency of the evidence claim by viewing the facts in the light most
favorable to the prosecution and upholding the verdict if a rational trier of fact could have found the
essential elements beyond a reasonable doubt. United States v. Hernandez, 227 F.3d 686, 694 (6th
Cir. 2000). Because Thomas did not renew his motion for acquittal for insufficiency of the evidence
at the close of proofs, we review only for manifest miscarriage of justice. Id. A manifest
miscarriage of justice can be found only where the “record is devoid of evidence pointing to guilt.”
Id.Bank robbery under 18 U.S.C. § 2113(a) is defined in relevant part as follows:
Whoever, by force and violence, or by intimidation, takes, or attempts to take, from
the person or presence of another . . . any property or money or any other thing of
value belonging to, or in the care, custody, control, management, or possession of,
any bank . . . .
Thomas argues that there was insufficient evidence to establish the use of force, violence, or
intimidation. There is no evidence that Thomas used, displayed, or implied that he had a weapon.
We must therefore determine whether the record is “devoid of evidence” of intimidation.
Intimidation is defined as “conduct and words calculated to create the impression that any
resistance or defiance by the teller would be met by force.” United States v. Gilmore, 282 F.3d 398,
402 (6th Cir. 2002) (citation and internal quotation marks omitted). The test is an objective one,
“whether an ordinary person in the teller’s position could reasonably infer a threat of bodily harm
from defendant’s acts.” Id.-7-
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Little more than a demand for money is required to meet the intimidation element of bank
robbery. In Gilmore, this court found intimidation where, in a series of bank robberies, a defendant
presented demand notes to tellers and sometimes wore an “obviously fake goatee” and sunglasses.
Id. at 400-01. The court reasoned that “[d]emands for money amount to intimidation because they
carry with them an implicit threat: if the money is not produced, harm to the teller or other bank
employee may result.” Id. at 402. Other cases have found intimidation where there was a demand
accompanied by something else. See United States v. Waldon, 206 F.3d 597, 606 (6th Cir. 2000)
(robber wore a mask and ordered everyone to lie down); United States v. Perry, 991 F.2d 304, 310
(6th Cir. 1993) (imperative demand accompanied by admonition not to alert anyone and gesture as
if reaching into coat to grab something); United States v. Robinson, 527 F.2d 1170, 1172 (6th Cir.
1975) (man clothed in a leather coat waited nervously in line, attempted a sham transaction, then
demanded all the teller’s money and presented a black pouch to the teller). Notably, the additional
element in each of these cases was minor, just enough to make clear to the teller that the request for
money was not an ordinary bank transaction.
In this case, the robber made an imperative demand for money. He said “Give me your
hundreds, your fifties.” Although this demand was not on a demand note as in Gilmore, the words
used by the man implied something other than an ordinary bank transaction. Ordinary bank
customers do not demand money. Under the Gilmore standard, the demand alone would probably
be sufficient to support a finding of intimidation. But even if we interpreted Gilmore and our other
precedent as requiring some other factor, there was sufficient evidence to establish intimidation. In
addition to his demand for money, the robber said to the teller: “Go talk to them” or “Don’t talk to
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No. 03-1691
United States v. Thomas
them.” Viewed in the light most favorable to the prosecution, it is probable that the robber said
“Don’t talk to them,” a statement that again implied something other than an ordinary bank
transaction.
Furthermore, the testimony of the teller supports a finding of intimidation. We have noted
before that testimony from tellers that they were afraid is probative of whether an objective person
would feel intimidated. Gilmore, 282 F.3d at 402. In this case, the teller testified that she was
distraught, and that she forgot bank procedures and her manager’s name. Although this testimony
alone does not conclusively support a finding of intimidation, a rational trier of fact could infer that
an objective person would be intimidated by the defendant’s words and actions.
The imperative demand for money, combined with the robber’s statement to the teller and the
teller’s testimony of her own intimidation, provided sufficient evidence to submit this element to the
jury. Accordingly, there was therefore no manifest miscarriage of justice when the trial court
submitted the case to the jury on the element of intimidation.
C. Examination of Thomas About Crack Pipe and Knife
During the trial, the prosecution on cross-examination asked Thomas about a crack pipe and
a knife he supposedly possessed during the crime. After Thomas denied possession, the prosecution
called two police officers to testify that they had found the crack pipe on Thomas and the knife on
the street near where they arrested him. Thomas did not object to this line of questioning. We
therefore review for plain error. United States v. Wilson, 168 F.3d 916, 920 (6th Cir. 1999).
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The prosecution may attack a defendant’s credibility through questions about specific acts.
Fed. R. Evid. 608(b). However, once a defendant denies these acts, the prosecution may not
introduce extrinsic evidence to prove those acts occurred. Id.Even if the admission of this testimony was erroneous, it certainly did not affect his
substantial rights in light of all the other evidence, and therefore it would not rise to the level of plain
error. See Johnson v. United States, 520 U.S. 461, 466-67 (1997) (requiring an error to affect
substantial rights and seriously affect the fairness and integrity of any judicial proceedings for
reversal on the basis of plain error).
Other evidence in this case included a bank videotape of the robbery, identification by a bank
customer, $3,240 recovered from the defendant and the parking lot when $3,250 were stolen from
the bank, and testimony from the defendant’s cellmates that he bragged about the robbery. In
addition, prison employees testified that Thomas tried to flush money down the toilet in his cell.
Finally, when the police stopped him, the defendant was running and had left a trail of items behind
him including a bicycle and layers of clothing. This overwhelming evidence of guilt outweighs any
prejudice caused by the admission of evidence of the crack pipe and knife. Therefore, we do not find
plain error.
D. Examination of Thomas About Details of Prior Convictions
At trial, the prosecution also asked Thomas about the details of prior convictions.
Specifically, the prosecution questioned Thomas about his use of a gun during the commission of a
prior robbery. Thomas did not object, so we again review for plain error. Wilson, 168 F.3d at 920.
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Counsel may question a witness, including a defendant, about prior convictions to impeach
the witness’s credibility. Fed. R. Evid. 609(a)(2). Generally, this examination should be limited to
the conviction, not details of the circumstances surrounding conviction. United States v. Turner, 995
F.2d 1357, 1363-64 (6th Cir. 1993).
Here, it is not clear why the district court allowed the prosecution to question Thomas about
his use of a firearm during his prior conviction. Thomas never testified on direct examination that
he did not commit the robbery. Thus, the question about the firearm did not go to his credibility.
Again, even if the court’s failure to bar this line of questioning was error, there was sufficient reliable
evidence such that the error did not affect his substantial rights. Therefore, we do not find that any
error rose to the level of plain error.
III. CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the district court.
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