United States v. Jimmy Doyal Hindman

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 01, 2008
No. 07-14670 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00112-CR-5-KOB-JEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY DOYAL HINDMAN,
a.k.a. Jimmy D. Hindman,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 1, 2008)
Before ANDERSON, HULL and FAY, Circuit Judges.
PER CURIAM:
Jimmy Doyle Hindman appeals his jury-trial convictions for one count of
transporting a stolen motor vehicle, in violation of 18 U.S.C. § 2312; two counts of
armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); and two counts of
brandishing a firearm during the commission of a violent crime, in violation of 18
U.S.C. § 924(c)(1)(A). Hindman argues that the government failed to prove that
the deposits of the bank branches robbed were insured by the Federal Deposit
Insurance Corporation (“FDIC”), as required by § 2113, Specifically, Hindman
asserts that the government’s witnesses only stated that the parent banks were
federally insured at the time of trial, rather than that the deposits of the bank
branches were insured by the FDIC at the times of the robberies. Hindman also
argues that the district court erred in giving him incorrect mid-trial legal advice on
the merits of presenting character witnesses. Specifically, Hindman asserts that the
district court advised him that, if he called character witnesses, the government
would be able to call other witnesses to introduce specific instances of misconduct
and that those specific instances could be used to prove that Hindman committed
the crimes charged. Hindman asserts that this legal advice was incorrect, as
specific instances of misconduct only can be introduced on cross-examination and
when such evidence only can be used to discredit the witness’ opinion that the
defendant has a good character. For the reasons discussed below, we affirm
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Hindman’s convictions and sentences.
I.
Pursuant to the indictment, the bank-robbery charges stemmed from
Hindman’s August 1, 2003, robbery of the Dekalb Bank of Sand Rock, Alabama,
and August 12, 2005, robbery of the Community Bank of Elkmont, Alabama.
At Hindman’s jury trial, Billy Richard May, Jr., a codefendant of Hindman’s
previously convicted for his role in the offense, testified for the government that,
on August 1, he and Hindman robbed a bank in Sand Rock. The bank was a “small
country bank in a real rural area.” May traveled to the bank in a car that he had
stolen, at Hindman’s direction, for that purpose. Hindman traveled to the bank in
another, non-stolen car. Shortly before reaching the bank, Hindman parked the
non-stolen car behind an abandoned trailer and rode the remainder of the way with
May in the stolen car. Each man wore masks and carried two guns. They arrived
at the bank minutes after it had opened, before any customers had arrived. During
the robbery, May’s job was to “watch the door” and parking lot to ensure that the
police did not arrive. Hindman’s job was to collect money from the bank teller
drawers. After Hindman had collected all of the money, he and May drove back to
the abandoned trailer in the stolen car, left it, got into the non-stolen car, and drove
into the woods. There, May took the guns and money and hid in the woods.
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Hindman drove the rest of the way home, left the non-stolen car, got into a
different car, returned to the woods, and retrieved May and the guns and money.
The government submitted security camera pictures taken of the bank on the
morning of August 1. May identified himself standing near the door and Hindman
taking money from bank teller drawers.
Myra Glen testified for the government that she was the branch manager of
the Dekalb Bank in Sand Rock at the time of the robbery. When asked, “[Is] the
Dekalb Bank, Sand Rock . . . a federally insured institution,” Glen answered, “Uh-
huh.” When asked if the branch still was open, Glen answered that it had closed in
July 2004. On cross-examination, Hindman did not address the federal-insurance
status of the bank.
Billy Harvey, a codefendant of Hindman’s previously convicted for his role
in the offense, testified for the government that, on August 12, he and Hindman
robbed a bank in Elkmont. Before that day, Hindman took Harvey to a bank in
Sand Rock and told Harvey that Hindman and May had robbed that bank before.
On August 12, Harvey traveled to the bank in a stolen car that Hindman had
provided. Hindman traveled to the bank in a green car. Just before they reached
the bank, Hindman parked the green car on the side of a dirt road and rode the
remainder of the way with Harvey in the stolen car. Hindman brought guns. Each
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man wore masks. They arrived at the bank minutes after it had opened, before any
customers had arrived. During the robbery, May’s job was to “keep watch” to
ensure that the police did not arrive. Hindman’s job was to collect the money.
After the robbery, Hindman’s plan involved driving the stolen car with Harvey
back to the dirt road where the green car was parked, leaving the stolen car, getting
in the green car with Harvey, driving into the woods and dropping off Harvey and
the guns and money, returning home alone, getting in a different car, and returning
to the woods that night to retrieve Harvey and the guns and money. However, the
police saw Hindman and May fleeing the bank, and a chase ensued.
Donnie Johns, a police officer with the Elkmont Police Department, testified
for the government that, in the course of the police chase, Hindman got ahead of
the police, abandoned the green car, and disappeared. Jim Landers, a police officer
with the Sheriff’s Office of Limestone County, which encompasses Elkmont,
testified for the government that, upon searching the vicinity of the abandoned
green car, the police found masks, gloves, and ammunition. Heather Seubert, a
DNA examiner with the Federal Bureau of Investigation, testified for the
government that she found a match between DNA found on a mask collected by
the police officers in the vicinity of the green car and DNA provided by Hindman.
Cory Griffin testified for the government that he was the branch manager of
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the Community Bank in Elkmont at the time of the robbery, but since had become
the vice president of a branch of a different bank. When asked, “Is the Community
Bank federally insured,” Griffin answered, “Yes, sir.” When asked, by way of
clarification, “Is it FDIC insured,” Griffin again answered “Yes, sir.” On cross-
examination, Hindman did not address the federal-insurance status of the bank.
At the close of the government’s case-in-chief, Hindman moved for a
judgment of acquittal on the grounds that the government had not provided
sufficient evidence for the jury to convict him. Specifically, Hindman argued that,
as to Count 1, the evidence demonstrated that May, rather than Hindman,
transported a stolen car across state lines. Hindman argued that, as to the
remaining counts, the evidence was insufficient because it consisted primarily of
testimony of convicted felons who lacked credibility. The district court overruled
Hindman’s motion.
Before presenting the defense case-in-chief, Hindman’s counsel indicated to
the district court that he had advised Hindman not to call character witnesses, but
wished for the district court to advise Hindman on the dangers of this course of
action. The district court cleared the courtroom of the government’s attorneys and
any spectators. The district court then advised Hindman:
Anything that you do to put your character and your credibility at
issue, which as of right now are not at issue, [will] allow the
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government, then, to put before the jury your convictions, and your
reputation in the community, which from what I have heard may
include a reputation for being a bank robber . . . I don’t think you want
to the jury to hear that.
. . . If you put your character at issue, then [the government], in
rebuttal, will probably put [May and Harvey] back on the stand, and
maybe others, to say that not only did you [rob] these two banks, but
that you also participated with them or with others in robbing other
banks. And all that would tend to show that you participated in this
bank robbery.
After Hindman responded to this advice by pointing out, while he had been
in legal trouble in the 1980s, his character since had become that of a hardworking
man, the district court reiterated to Hindman, “Either way, [the government is]
going to put [May] back on the stand to talk about all these other bank robberies
that he says you and he committed” and that:
Whatever you expect [the character witnesses] to testify about, what a
good and kind man you are, and I don’t doubt that you a good and
kind man in the views of some people, but the government will be
able to ask them[] if you have a reputation in your community for
being a bank robber, or for carrying guns, or all those other type [of]
things that right now the jury has not heard.
The district court gave Hindman a chance to further discuss the matter with
his counsel. After this discussion, Hindman indicated that he did not wish to call
the character witnesses and that he had reached this decision voluntarily.
At the close of Hindman’s case-in-chief, he renewed his earlier motion for a
judgment of acquittal and reiterated the grounds previously argued. The district
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court denied the motion.
Before giving the case to the jury, the district court instructed the jury that,
to convict Hindman on the bank robbery charges, it must find, inter alia, that
Hindman took money then in the possession of a federally insured bank. The
district court likewise advised the jury that “a ‘federally insured bank’ [meant]
any bank the deposits of which [were] insured by the [FDIC].”
II.
We review arguments not raised before the district court for plain error only.
United States v. Hunerlach, 197 F.3d 1059, 1068 (11th Cir. 1999) (applying plain
error review to a sufficiency-of-evidence argument); United States v. Woodard,
459 F.3d 1078, 1085-86 (11th Cir. 2006) (applying plain error review to a jury-
instruction challenge). Specifically regarding sufficiency-of-the-evidence
arguments, we have applied plain error review even when a defendant moved for a
judgment of acquittal on sufficiency-of-the-evidence grounds but failed to
articulate at that time the specific sufficiency-of-the-evidence claim later raised on
appeal. Hunerlach, 197 F.3d at 1064, 1068-69. When plain-error review is
appropriate, the defendant must show: (1) an error, (2) that is plain, and (3) that
affected his substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th
Cir. 2007). If the defendant satisfies these three conditions, we may exercise our
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discretion to recognize the error if that error “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (citation and quotation
omitted).
As an initial matter, we will review both of Hindman’s arguments for plain
error only. Although Hindman moved for a judgment of acquittal, he did not
specifically argue at that time that the government had failed to prove the federal-
insurance element. Accordingly, we cannot reverse Hindman’s convictions on this
ground unless the district court committed an error that was plain and that affected
Hindman’s substantial rights and seriously affected the fairness, integrity, or
reputation of the trial. See Hunerlach, 197 F.3d at 1064, 1068-69; Turner, 474
F.3d at 1276. Likewise, because Hindman admittedly raises his improper-legal-
advice argument for the first time on appeal, we cannot reverse his convictions on
this ground unless the district court committed an error that was plain and that
affected Hindman’s substantial rights and seriously affected the fairness, integrity,
or reputation of the trial. See Woodard, 459 F.3d at 1085-86; Turner, 474 F.3d at
1276.
III.
Evidence is sufficient to support a conviction so long as "any rational trier of
fact" could have found proof beyond a reasonable doubt of the essential elements
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of the crime in the evidence presented. United States v. Eckhardt, 466 F.3d 938,
944 (11th Cir. 2006), cert. denied, 127 S. Ct. 1305 (2007). Proof that the deposits
of the bank in question were insured by the FDIC on the day the bank was robbed
is an essential element of a § 2113 bank-robbery conviction. See United States v.
Maner, 611 F.2d 107, 108 (5th Cir. 1980). While we never have specified the
amount or type of evidence required to prove this essential element, we previously
have held sufficient bank-employee testimony that the bank’s deposits were FDIC-
insured at the time of trial.
Specifically, in Cook v. United States, 320 F.2d 1258, 1259 (5th Cir. 1963),
the government asked the bank’s vice president, “Is your bank insured by the
[FDIC]?” and, by way of clarification, “Are the deposits which you have there
covered by the Federal Deposit Insurance Corporation?” Id. at 1259. The witness
answered affirmatively. Id. The defendant did not object to the testimony or move
for a judgment of acquittal, but later argued that the testimony was insufficient on
the ground that the witness had not stated that the bank deposits were insured at the
time of the robbery. Id. We applied plain error review and concluded that the
proof was sufficient because the notion that “subsequent existence [is] evidence of
existence at the time in issue” and “the common knowledge of the nearly universal
prevalence of the banks of the United States having their deposits insured by the
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[FDIC,] permits, if it does not require, an inference” that the bank deposits were
federally insured at the time of the robbery. Id. at 259-60.
Likewise, in United States v. Williams, 592 F.2d 1277, 1281-82 (5th Cir.
1979), one witness testified that the deposits of the bank in question were insured
by the FDIC, but admitted that he had never seen the FDIC-insurance contract and
did not know if the premiums were paid. Another witness testified that the
deposits of the bank in question were insured by the FDIC, but admitted that he did
not know if the parent bank’s FDIC-insurance contract covered the specific branch
in question. Id. Despite these admissions and the witness’ failures to state that the
coverage applied to the branch in question at the time of the robberies, we found
that the proof was sufficient. Id. We noted, though, that, given the witness’
admissions, the level of proof offered “was probably close to the minimum [we]
could allow.” Id. at 1282.1
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We recognize that, after Cook and Williams, we repeatedly have lamented the
government’s minimal efforts to prove this essential element. For instance, in United States v.
Maner, 611 F.2d 107, 110-12 (5th Cir. 1980), in which the government offered only an insurance
certificate dated five years before the robbery in question, we stated that “we have difficulty
comprehending why the Government repeatedly fails to prove this element more carefully since
the Government’s burden is so simple and straightforward. As in the other cases we have
discussed, the Government treads perilously close to reversal in this case, and may soon find
itself crossing the line from sufficiency to insufficiency.” We did not, however, reverse the
conviction. See Maner, 611 F.2d at 110-12; see also United States v. Platenburg, 657 F.2d 797,
799-800 (5th Cir. 1980) (holding that a bank insurance certificate dated seven years before the
robbery in question was insufficient and reversing the conviction, but specifically noting that the
facts of the case were distinguishable from those in Cook because the Platenburg defendant had
moved for a judgment of acquittal specifically on the grounds that the government had not
proven the federal-insurance element). While we have expressed dismay, though, we never have
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The district court did not plainly err in allowing a § 2113 bank-robbery
conviction based on the testimony of two witnesses that the bank was FDIC-
insured. See Cook, 320 F.2d at 259-60; Hunerlach, 197 F.3d at 1068. The fact
that neither witness testified that the banks were insured at the times of the
robberies does not suggest plain error. Glen’s testimony that the Sand Rock bank
“is” federally insured could not have meant that it was insured at the time of the
trial, as the bank had closed by the time of the trial. Likewise, Griffin’s testimony
that the Elkmont bank “is” federally insured likely did not mean that the bank was
federally insured at the time of the trial, because Griffin no longer worked for that
bank by the time of the trial. Thus, their testimony either could have meant that the
banks were federally insured at the times of the robberies or at some point
thereafter. Given our recognition that evidence of insurance after the fact can be
seen as evidence of insurance during the fact, even the latter meaning would
suffice. See Cook, 320 F.2d at 259-60. Moreover, nothing in the record suggests
that small, rural banks are not as universally insured as other banks. See id.
Also, Hindman’s suggestion that the witnesses’ testimony only demonstrates
overturned the lower threshold suggested in Cook or otherwise specified a higher quantum of
required evidence. Moreover, in a later case, United States v. Baldwin, 644 F.2d 381, 385 (5th
Cir. 1981), we reiterated this low threshold by holding that “[p]roof of the certificate [of
insurance] alone may be sufficient” and that “[u]ncontradicted testimony [that] the deposits were
federally insured is sufficient.” We do not find it necessary to stray from the Cook language
now, as we find that the evidence presented was not so minimal as to cross the line mentioned in
Maner. See Maner, 611 F.2d at 110-12.
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that the two branches’ parent banks may have been federally insured is without
merit as to the Sand Rock bank. The prosecution specifically asked Glen if the
“Dekalb Bank, Sand Rock” was federally insured, such that Glen’s affirmative
answer directly applies to that branch. As to the Elkmont Bank, although Griffin’s
testimony was not specifically as to this particular branch of the Community Bank,
this apparent failure does not suggest plain error. In Williams, we applied a more-
stringent standard than plain error and found sufficient the testimony of a witness
who specifically acknowledged that he did not know if the parent bank’s federal
insurance covered the particular branch in question. 592 F.2d at 1281-82.
Finally, the fact that the witnesses did not specify that the bank deposits
were insured and that Glen did not specify that the insurance was from the FDIC
does not suggest plain error. There is no reason to believe that the witnesses could
have been referring to any other form of insurance besides deposit insurance.
Likewise, there is no reason to believe that Glen meant that the federal insurance
came from a provider other than the FDIC. Therefore, although the government
could have offered more exact evidence of the banks’ FDIC-insured status, the
testimony offered on this point did not result in plainly erroneous convictions. See
Turner, 474 F.3d at 1276. Accordingly, we affirm Hindman’s convictions as to
this issue.
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IV.
We never have held that the district court cannot give mid-trial advice to a
defendant, particularly when, as here, the defendant’s attorney requested the court
to do so.2 Pursuant to Fed.R.Evid. 404, evidence of a defendant’s character is
admissible to prove action in conformity therewith only if offered by the defendant
himself or by the prosecution to rebut the defendant’s character evidence.
Fed.R.Evid. 404(a)(1). Pursuant to Fed.R.Evid. 405, when the defendant’s
character is made an issue, it can be proved by reputation or opinion testimony
given on direct examination. Fed.R.Evid. 405(a). Once a witness provides
character evidence on direct examination, he can be cross-examined on relevant
specific instances of conduct. Id. Evidence of other crimes, wrongs, or acts is
never allowed to prove the character of the defendant in order to show action in
conformity therewith. Fed.R.Evid. 404(b).
The district court did not commit plain error in advising Hindman on the
merits of presenting character evidence. See Woodard, 459 F.3d at 1085-86. First,
as we never have generally forbidden a district court from giving legal advice
2
The cases cited by Hindman, United States v. Casallas, 59 F.3d 1173 (11th Cir. 1995)
and United States v. Corbitt, 996 F.2d 1132 (11th Cir. 1993), are not applicable because they
discuss a district court’s provision of legal advice during a change-of-plea hearing and whether
doing so violated Fed.R.Crim.P. 11’s prohibition on district court involvement in plea
negotiations. Fed.R.Crim.P. 11(c)(1).
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during trial, any error committed by the district court in giving the advice was not
plain, especially as the defendant’s counsel requested the district court to give the
advice. See Turner, 474 F.3d at 1276. Also, while the district court may have
committed error in incorrectly advising Hindman that, by presenting character
evidence, he would be opening the door for the government to call other witnesses
to discuss his participation in past robberies, this error did not meet the plain-error
standard because it did not affect Hindman’s substantial rights or the fairness of
the trial. See Fed.R.Evi. 404(a)(1), 405(a); Turner, 474 F.3d at 1276.
Given the substantial evidence presented as to Hindman’s guilt of the crimes
charged, it is not likely that the jury convicted him of the charges solely because he
did not demonstrate that he has a reputation for having a good character or that
some witnesses believed him to be of good character. Specifically, the jury’s
guilty verdict is substantially supported by May’s description of how he and
Hindman robbed the Sand Rock bank on August 1; pictures from the bank’s
security camera of May and Hindman robbing that bank; Harvey’s description of
how he and Hindman robbed the Elkmont bank on August 12; and DNA evidence
linking Hindman to that robbery. In light of this evidence, there is no reason to
believe that the jury would not have convicted Hindman but for the district court’s
incorrect advice. See Turner, 474 F.3d at 1276. Accordingly, we affirm
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Hindman’s convictions as to this issue.
AFFIRMED.
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