United States v. Michael Chance

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 15, 2008
THOMAS K. KAHN
No. 07-12446
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-80179-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL CHANCE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 15, 2008)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Michael Chance appeals his convictions for robbery of a bank by use of a
firearm, 18 U.S.C. § 2113(a), (d), attempted robbery in violation of the Hobbs Act,
18 U.S.C. § 1951(a), two counts of brandishing a firearm during a crime of
violence, 18 U.S.C. § 924(c)(1)(A)(ii), and possession of a firearm by a convicted
felon, 18 U.S.C. §§ 922(g)(1), 924(e). Chance argues that the district court erred
when it denied his motions for a judgment of acquittal and mistrial. We affirm.
I. BACKGROUND
Chance entered the CVS pharmacy store in Coconut Creek, Florida, and
approached clerk Francisco Gonzales. Chance asked to purchase cigarettes and,
when Gonzales returned to the register, Chance withdrew a gun from the waistband
of his pants, explained that it was not a toy, ejected a bullet on the counter, and
instructed Gonzales that he had a few seconds to “give [Chance] the money.”
Gonzales was unable to recall the code to open his register, and Chance left empty-
handed.
Chance next drove to the Washington Mutual Bank in Boca Raton, Florida,
and approached teller Patricia DeMarco. Chance told DeMarco, “[n]o dye packs
and don’t set off the alarm,” then placed a gun on the counter and rested his finger
on the trigger. DeMarco, who was “petrified,” stacked increments of $1, $5, and
$100 bills on the counter. DeMarco left without incident.
The next day, DeMarco identified Chance in a photographic line-up. Special
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Agent John MacVeigh of the Federal Bureau of Investigation reviewed
photographs printed from the surveillance camera inside the bank and recognized
the individual as Chance. Chance’s brother, Ray Chance, also identified Chance as
the robber.
Special Agent Roger Higgins of the Federal Bureau of Investigation
identified Chance from the surveillance video of the CVS store. Detective Kevin
Vernetti compiled a photo array that included a picture of Chance for Gonzales to
examine. Gonzales identified Chance in “a few seconds.”
A federal grand jury indicted Chance for robbery of the Washington Mutual
Bank by use of a firearm, 18 U.S.C. § 2113(a), (d); attempted robbery of a CVS
Pharmacy in violation of the Hobbs Act, 18 U.S.C. § 1951(a); two counts of
brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii);
possession of a firearm by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(e); and
possession of a stolen firearm, 18 U.S.C. §§ 922(j), 924(a)(2). Before trial, the
parties stipulated that Chance had been convicted previously of a felony offense.
At trial, Vernetti stated that he prepared a photo array for Gonzales to review
and stated that he used a prison photograph of Chance. Chance objected and
moved to strike Vernetti’s testimony. The district court granted the motion,
directed the jury to “disregard the last response,” and instructed the jury to “limit”
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the information that it considered “to what the detective himself did.” Chance
“reserve[d] a motion to make later.”
Vernetti also testified that he might have told Gonzales that the suspect had
been arrested. Vernetti testified that he did not identify the suspect, and Vernetti
did not tell Gonzales there was a photograph of the suspect in the array.
Chance moved for a mistrial because Vernetti said that Gonzales was in
prison and the photographic lineup was unduly suggestive. The district court
denied the motion. The district court ruled that mentioning the word “prison” was
not unduly prejudicial and had been cured by an instruction to the jury. The
district court acknowledged that Vernetti’s statements to Gonzales about the photo
array were a “deviation from the norm,” but ruled that the remarks did not affect
the pre-trial identification.
Brian Ray testified that his Beretta .40 caliber pistol had been stolen from
his home. After an investigator left his house, Ray discovered that a check had
been removed from his checkbook. A copy of the check showed that it had been
made payable to Chance. On cross-examination, Ray denied that he had used
drugs or allowed anyone to use drugs in his home.
To impeach Ray, Chance called Shannon Wallace, Chance’s niece. Wallace
testified that she had used cocaine with Ray and observed Ray smoke crack
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cocaine in his home. Special Agent Roger Higgins testified in rebuttal that Ray did
not have any prior convictions for drug-related crimes, but Ray might have
mentioned that he had smoked crack cocaine in the past.
Chance moved for a mistrial and argued that the government failed to
disclose information about Ray’s drug use. The district court denied the motion.
The district court ruled that defense counsel had impeached Ray and the jury could
resolve the contradictions in the testimony. The jury acquitted Chance on the
charge of possession of a stolen firearm, but convicted him on the remaining
counts of the indictment.
II. STANDARD OF REVIEW
We review de novo the sufficiency of the evidence and view the evidence in
the light most favorable to the government. United States v. Martinez, 83 F.3d
371, 373–74 (11th Cir. 1996). We review the denial of a mistrial for an abuse of
discretion. United States v. Diaz, 248 F.3d 1065, 1101 (11th Cir. 2001).
III. DISCUSSION
Chance makes two arguments on appeal. First, Chance challenges the
sufficiency of the evidence to support his convictions for armed robbery of a bank,
attempted robbery, and brandishing a firearm during crimes of violence. Second,
Chance challenges the denial of his motions for a mistrial.
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A. The Government Introduced Sufficient Evidence to Support
Chance’s Convictions.
Chance challenges his convictions on three grounds. First, Chance argues
that the government failed to present sufficient evidence to support his convictions
for bank robbery and the attempted robbery of the CVS Pharmacy. Second,
Chance contends that the government did not establish that he intimidated the bank
teller. Third, Chance contends that the government did not establish that he
“brandished” a firearm during the robberies. These arguments fail.
A reasonable jury could find that the government presented sufficient
evidence that Chance robbed a bank using a firearm. 18 U.S.C. § 2113(a), (d).
DeMarco testified that Chance walked to her teller counter inside the Washington
Mutual Bank, told DeMarco, “[n]o dye packs and don’t set off the alarm,” then
placed a gun on the counter and rested his finger on the trigger. DeMarco
identified Chance in a photographic line-up and verified her identification at trial.
Although DeMarco wavered briefly during her in-court identification, the
credibility of her identification rested with the jury. See Chastain, 198 F.3d at
1351. In addition, Agent MacVeigh and Chance’s brother identified Chance in
photographs printed from the bank surveillance video.
The government also introduced ample evidence that Chance attempted to
rob the CVS pharmacy. 18 U.S.C. § 1951(a). Gonzales testified that Chance drew
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a gun, explained that it was not a toy, ejected a bullet on the counter, and instructed
Gonzales that he had a few seconds to “give [Chance] the money.” After Gonzales
was unable to recall the code to open his register, Chance left empty-handed.
Gonzales identified Chance in a pre-trial photographic line-up and at trial.
The government also proved that Chance intimidated DeMarco during the
bank robbery. Id. § 2113(a). Intimidation occurs “‘when an ordinary person in [a
bank] teller’s position reasonably could infer a threat of bodily harm.’” United
States v. Cornillie, 92 F.3d 1108, 1110 (11th Cir. 1996) (quoting United States v.
Higdon, 832 F.2d 312, 315 (5th Cir. 1987)). DeMarco testified that Chance laid a
gun on the counter and rested his finger on the trigger. A reasonable person could
infer that Chance threatened to shoot DeMarco if she refused to relinquish the
money in her bank drawer.
The government presented sufficient evidence that Chance brandished a
firearm during both the bank robbery and the attempted robbery of the CVS
Pharmacy. The term “brandish” is defined as the “display [of] all or part of the
firearm[.]” 18 U.S.C. § 924(c)(4). DeMarco testified that Chance laid a gun on the
counter during the bank robbery. Gonzales testified that Chance pointed a gun at
him when he instructed Gonzales to “give [Chance] the money.”
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B. The District Court Did Not Abuse Its Discretion by Denying Chance’s
Motions for a Mistrial.
Chance challenges the denial of his motions for a mistrial on three grounds.
First, Chance argues that a detective’s use of the word “prison” during his
testimony was prejudicial. Second, Chance maintains that a pre-trial identification
was tainted by comments that the detective made before Gonzales reviewed the
photo array. Third, Chance contends that the government committed prosecutorial
misconduct when it failed to disclose evidence about the drug use of a witness.
These arguments fail.
The district court did not abuse its discretion by refusing to grant a mistrial
based on a detective’s remark. The isolated comment by Detective Vernetti that
Chance had been in prison did not substantially prejudice Chance, who had
stipulated that he was a convicted felon. See United States v. Villabona-Garnica,
63 F.3d 1051, 1058 (11th Cir. 1995). The district court also eradicated any
potential prejudice when it immediately instructed the jury to “disregard the
response.” See Diaz, 248 F.3d at 1101.
Chance also was not entitled to a mistrial based on the in-court identification
by Gonzales. Detective Vernetti’s remark that the suspect had been captured was
not suggestive because Vernetti did not identify the suspect or which individual in
the photo array had been arrested. See Cikora v. Dugger, 840 F.2d 893, 896–97
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(11th Cir. 1988). The pre-trial line-up did not taint Gonzales’s in-court
identification. See United States v. Smith, 459 F.3d 1276, 1293–94 (11th Cir.
2006).
The district court did not abuse its discretion by denying a mistrial based on
the alleged failure of the government to disclose that Brian Ray used drugs. Ray’s
false statements did not influence the outcome of the trial. The jury discredited
Ray’s testimony that Chance stole a Beretta .40 caliber pistol from Ray’s home and
acquitted Chance on the charge of possession of a stolen weapon.
Chance’s convictions are AFFIRMED.
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