United States v. Isaacs

REVISED DECEMBER 11, 2007
United States Court of Appeals
IN THE UNITED STATES COURT OF APPEALS Fifth Circuit
FOR THE FIFTH CIRCUIT
FILED
No. 05-10188 March 13, 2006
Summary Calendar
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVIN ISAACS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-128-2
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Marvin Isaacs appeals his jury conviction of bank robbery
and aiding and abetting and of possession of a firearm during and
in relation to a bank robbery and aiding and abetting, in
violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(1), and 2113(a).
Counts one and two of the indictment involved a July 27, 2004
robbery at a Bank One location, and counts three and four
pertained to a robbery on August 9, 2004, at a Frost Bank
location, both banks located in Fort Worth, Texas.
*
Pursuant to the 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Isaacs argues that there was no probable cause to arrest him
and therefore the district court erred by denying his motion to
suppress his confession, that the district court improperly
admitted extraneous offense evidence, and that the evidence is
insufficient to support his conviction for aiding and abetting
the use and carrying of a firearm during and in relation to a
bank robbery. We affirm.
I
Isaacs asserts that the district court erred by denying his
motion to suppress the confession made following his warrantless
arrest. He argues that the officers lacked probable cause to
arrest him and, as a result, all statements should have been
suppressed as the fruit of that illegal arrest.1 In reviewing a
district court’s denial of a motion to suppress, we review
factual findings, including credibility choices, for clear error,
while legal conclusions are reviewed de novo.2
Of course, law enforcement officials may arrest an
individual in a public place without a warrant if they have
1
Wong Sun v. United States, 371 U.S. 471 (1963); see also United States
v. Runyan, 290 F.3d 223, 234 (5th Cir. 2002) (“We view the facts underlying the
suppression determination in the light most favorable to the prevailing party....
It is the defendant's burden to prove a Fourth Amendment violation by a
preponderance of the evidence. However, once the defendant proves such a
violation, the burden shifts to the government to demonstrate why the
exclusionary rule should not apply to the fruits of the illegal search or
seizure” (citations omitted).).
2
United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005).
2
probable cause to believe that individual committed a felony.3
“Probable cause for a warrantless arrest exists when the totality
of the circumstances within a police officer’s knowledge at the
moment of the arrest are sufficient for a reasonable person to
conclude that the suspect had committed or was committing an
offense.”4 When considering what a reasonable person would have
concluded, we consider the expertise and experience of the law
enforcement official.5 The probable cause must be analyzed under
the totality of the circumstances to determine whether there is a
fair probability that a crime occurred.6 A “‘fair probability’
is something more than a bare suspicion, but [it] need not reach
the fifty percent mark.“7
Suppression hearing testimony indicates that law enforcement
officials who were investigating the Frost Bank robbery learned
that the getaway vehicle used in the robbery had been rented
earlier that morning by Laffoon and a second man. Shortly after
the robbery, officials learned that Laffoon was returning the car
to the rental agency. Based on information obtained during the
investigation of the robbery at Frost Bank, law enforcement
3
See United States v. Garcia, 179 F.3d 265, 268 (5th Cir. 1999).
4
Id.
5
Id.
6
Id. at 269.
7
Id.
3
officials were certain that Laffoon was the Frost Bank robber and
that he was involved in previous robberies. Isaacs, who returned
to the rental agency with Laffoon, was identified as the man with
Laffoon earlier that morning, prior to the robbery, when the car
was rented. Although one witness raised a question whether
Laffoon’s getaway driver at the Frost Bank was male or female,
the law enforcement officials knew that the driver of the getaway
vehicle had long hair. A witness at the Bank One robbery
described the driver as a Caucasian male with long hair.
Therefore, the descriptions of the getaway driver at both crime
scenes resembled Isaacs, and he was placed in the vehicle used in
the robbery both before and after it transpired.8
Thus, the totality of the circumstances and facts within the
law enforcement officials’ knowledge when they arrested Isaacs
was sufficient for a reasonable person to conclude that Isaacs
was Laffoon’s driver in the Frost Bank robbery. Probable cause
therefore existed, and the district court did not err in denying
Isaacs’s motion to suppress.
II
We review for abuse of discretion cases involving the
8
See United States v. Baldwin, 644 F.2d 381, 384 (5th Cir. 1981) (finding
probable cause to arrest on suspicion of robbery where defendant’s truck was
positively identified as the getaway vehicle and witnesses had provided police
descriptions generally fitting the defendant).
4
admission of FED.R.EVID. 404(b) evidence.9 Irrespective of the
threshold determination regarding whether the evidence is
intrinsic or extrinsic,10 the district court did not err in
admitting the evidence. Before admitting Rule 404(b) evidence, a
trial court must apply a two-step inquiry set forth in United
States v. Beechum: (1) whether the offense evidence is relevant
to an issue other than the defendant’s character and (2) whether
the evidence possess probative value that is not substantially
outweighed by its undue prejudice, meeting the requirements of
FED.R.EVID. 403.11 To meet the relevancy requirement, the
government need only produce sufficient evidence to permit a
reasonable jury to find the preliminary facts by a preponderance
of the evidence.12
A police officer testified that on August 3, 2004, he
stopped a Black Dakota truck driven by Isaacs, the vehicle used
in the Bank One robbery. After having gained consent to search
the vehicle, the officer found a firearm and ammunition–the same
type and caliber weapon used in the Frost Bank robbery. The
9
See United States v. Peterson, 244 F.3d 385, 392 (5th Cir. 2001).
10
See United States v. Williams, 343 F.3d 423, 436 (5th Cir. 2003); see
also United States v. Coleman, 78 F.3d 154, 156 (5th Cir. 1996) (stating that
intrinsic evidence does not implicate Rule 404(b)); but see Unites States v.
Walters, 351 F.3d 159, 166 n.2 (5th Cir. 2003) (noting in dictum that the Court
would only analyze the admissibility of the disputed evidence under Rule 404(b)
since the government had not offered it as intrinsic evidence at trial).
11
582 F.2d 898, 911 (5th Cir. 1978); Peterson, 244 F.3d at 392.
12
United States v. Anderson, 933 F.2d 1261, 1268-69 (5th Cir. 1991).
5
firearm had a different, but sequential, serial number as the
weapon used in the Frost Bank robbery and was procured by
Laffoon. The district court did not abuse its discretion in
finding that the evidence was not offered to show propensity or
bad character.13 The evidence was appropriately before the jury
as proof of intent, identity, and absence of mistake or
accident.14
Isaacs also contests the admittance of evidence regarding
four non-charged bank robberies. Isaacs asserts that this
evidence is irrelevant, cumulative, and prejudicial. However,
when the evidence closely parallels the charged offense, then the
probity of the evidence may outweigh its unfair prejudice.15
Again, the district court did not abuse its discretion in so
ruling.
III
13
The district court twice instructed the jury as to the proper scope of
consideration to be given to the testimony. See United States v. Parsee, 178
F.3d 374, 379 (5th Cir. 1999) (“The court instructed the jury that it could
consider the bad acts only for the limited purpose of intent, thereby minimizing
any prejudicial effect.”).
14
See FED.R.EVID. 404(b); United States v. Posada-Rios, 158 F.3d 832, 871
(5th Cir. 1998) (finding evidence of inculpatory material found during vehicle
stop admissible to show intent); United States v. Hernendez-Guevara, 162 F.3d
863, 870 (5th Cir. 1998).
15
Beechum, 582 F.2d at 917 (stating “the overall similarity of the
extrinsic and charged offenses in this case generates sufficient probity to meet
the rule 403 test that the probative value of the evidence not be substantially
outweighed by its unfair prejudice); United States v. Guerrero, 169 F.3d 933, 939
(5th Cir. 1999) (finding admissible identity evidence where the circumstances of
the extraneous act were so similar to the offense in question that they evince
a signature quality...”).
6
Isaacs moved for a judgment of acquittal regarding the
firearm counts at the close of the Government’s case and at the
close of evidence. We review de novo.16 We will affirm the
jury’s verdict if a reasonable trier of fact could conclude from
the evidence that the elements of the offense were established
beyond a reasonable doubt, viewing the evidence in the light most
favorable to the verdict and drawing all inferences from the
evidence to support the verdict.17
In order to prove aiding and abetting, the Government must
show that Isaacs (1) associated with the criminal venture, (2)
participated in the venture, and (3) sought by action to make the
venture succeed.18 Isaacs drove the vehicle used in the
robberies, and he participated in the decision making that led to
the Frost Bank robbery.19 Isaacs satisfies these three elements
of aiding and abetting.
In a conviction for aiding and abetting an 18 U.S.C. §
924(c)(1) offense, the prosecution must prove that the defendant
16
See United States v. Izydore, 167 F.3d 213, 219 (5th Cir. 1999).
17
United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003).
18
United States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir. 2005)
(“Association means that the defendant shared in the criminal intent of the
principal. Participation means that the defendant engaged in some affirmative
conduct designed to aid the venture. The government must therefore prove the
underlying crime was committed by someone other than the defendant and that the
defendant himself either acted or failed to act with the specific intent if
advancing the commission of the underlying crime” (citations omitted).).
19
There is no indication that the mutual planning included discussion of
a firearm.
7
acted with the knowledge or specific intent of advancing the use
of the firearm. The jury is entitled to draw reasonable
inferences of knowledge or intent from the defendant’s actions.20
There must also be proof that the defendant performed some
affirmative act relating to the firearm.21 Knowledge of the
underlying offense or knowledge that a firearm will be used in
the commission of the underlying offense is insufficient to
sustain a conviction.22 There must be evidence that the
defendant took some action to facilitate or encourage the use or
carrying of a firearm rather than simply assist in the crime
underlying the 18 U.S.C. § 924(c)(1) violation.23
Isaacs argues that the government failed to establish an
affirmative link between himself and the firearm that Laffoon
used in the robberies. Trial testimony refutes Isaac’s argument.
Laffoon carried a firearm during both of the charged bank
robberies, and Isaacs, who drove the car in both robberies, knew
that Laffoon carried the firearm. The government argues that
“once knowledge on the part of the aider and abetter is
established, it does not take much to satisfy the facilitation
20
Lopez-Urbina, 434 F.3d at 758.
21
Id.
22
Id.
23
Id. “The link to the firearm is necessary because the defendant is
punished as a principal for using a firearm....” Id.
8
element.”24
Although Isaacs did not enter the banks with Laffoon,25
Isaacs confessed to his involvement in other robberies with
Laffoon, to knowing that Laffoon carried a firearm in all of the
robberies in which Isaacs participated, and to knowing that the
firearm that had been used in the Frost Bank robbery was in the
vehicle at the time of Isaacs’s arrest.26 Also, between the
dates of the Frost Bank and the Bank One robbery, in a traffic
stop of the Dakota truck that Isaacs was driving, but which had
been rented by Laffoon, police found the same make and model of
firearm as that which was used by Laffoon in the Frost Bank
robbery. Isaacs consistently participated in robberies during
which Laffoon used a firearm, knowingly conveyed to and from the
robberies the firearm that was to be used in the robberies, and
also independently transported a firearm in a vehicle while not
in Laffoon’s presence. Moreover, the government argues that once
Laffoon re-entered the getaway car, Isaacs, with the intent of
24
United States v. Bennett, 75 F.3d 40, 45 (1st Cir. 1996) (stating
“facilitation is essentially undisputed since Bennett provided his car to
transport himself, his co-conspirators, and the gun to execute the raid”), cited
in United States v. Sorrells, 145 F.3d 744, 755 (5th Cir. 1998).
25
“This court has never imposed a requirement that an individual be
physically present when the gun is used to be convicted of aiding and abetting
under § 924(c)(1).” United States v. Salazar, 66 F.3d 723, 729 (5th Cir. 1995)
(per curiam).
26
The phrase “carries a firearm” in 18 U.S.C. § 924(c)(1) is not limited
to the carrying of firearms on a person, but also applies to persons who
knowingly possess and convey firearms in a vehicle. See Muscarello v. United
States, 524 U.S. 125, 127 (1998).
9
alluding police, commenced carrying the firearm.27 The
government also suggests that Isaacs benefitted from Laffoon’s
use of the gun, as it decreased the time Laffoon was in the bank
and provided more time to escape.28
Though the government cites three Fifth Circuit cases,29
only Sorrells is on point, yet it is factually distinguishable.30
Still, quoting Bennett, we stated: “‘From this evidence a jury
could find that Bennett knew that one of his companions was
carrying the gun when they committed the attack, and facilitation
is essentially undisputed since Bennett provided his car to
transport himself, his co-conspirators, and the gun to execute
27
United States v. Willis, 559 F.2d 443, 444 (5th Cir. 1977) (holding
that the crime of bank robbery continues throughout the escape); United States
v. Morrow, 977 F.2d 222, 231 (6th Cir. 1992) (finding a § 924(c) violation when
the defendant accompanied his partner into the crime scene and received the
protection of his confederate's weapon).
28
See United States v. Woods, 148 F.3d 843, 848 (7th Cir. 1998) (stating
that “benefitting from the use of the gun permits an inference of facilitation”);
see also United States v. Gordon, 290 F.3d 539, 547 (3d Cir. 2002) (holding that
an aiding and abetting violation of section 924(c) does not require that the
defendant possessed or controlled the weapon so long as the defendant’s actions
“were sufficiently intertwined with, and his criminal objectives furthered by the
actions of the participant who did carry and use the firearm”); Bazemore v.
United States, 138 F.3d 947, 949-50 (11th Cir. 1998) (“Bazemore cannot knowingly
benefit from the protection afforded by the firearm carried by his companion and
then subsequently evade criminal liability for its presence.”).
29
Unites States v. Bell, 812 F.2d 188, 195 n.10 (5th Cir. 1987)
(describing when an accomplice can be accountable as a principle); United States
v. Hickman, 151 F.3d 446, 455-56 (5th Cir. 1998) (focusing solely on the
knowledge criteria); United States v. Sorrells, 145 F.3d 744, 755 (5th Cir.
1998).
30
145 F.3d at 755. In Sorrells, the accomplice affirmatively provided
the principal with a gun, whereas, here, Laffoon procured the weapon(s) used in
the bank robberies. Also, the knowledge criteria was primarily at issue. Id.
10
the raid.’”31 The government then cites persuasive extra-
jurisdictional cases to further support its contention.32
From the foregoing evidence the jury could have reasonably
inferred that Isaacs facilitated or encouraged the use or
carrying of a firearm rather than simply assisted in the crime
underlying the 18 U.S.C. § 924(c)(1) violation. When viewed with
all reasonable inferences made in support of the jury’s verdict,
the evidence supports Isaac’s conviction for aiding and abetting
the possession of a firearm during and in relation to a bank
robbery.
AFFIRMED.
31
Id. (citing Bennett, 75 F.3d at 45); see also Salazar, 66 F.3d at 729
(stating that “[t]he jury could also have considered the evidence that the
weapons were stored at Salazar's place of business as an affirmative act aiding
the use of the weapon” and that “Salazar also assisted Hernandez by getting a
locksmith to unlock his shop in which the keys to the car that contained the gun
and was used in the escape were located”) .
32
Bazemore, 138 F.3d at 949-50 (finding “ample evidence linking Bazemore
to the gun, because he was the driver of the car which carried both Abercrombie
and the gun to the drug deal and because he knowingly accepted the gun's
protection while he was inspecting the marijuana”); United States v. Easter, 66
F.3d 1018, 1024 (9th Cir. 1995) (affirming a defendant’s aiding and abetting
conviction based on evidence that the gun was present in the automobile and the
defendant heard other participants on the way to the robbery discussing the gun);
Santoro v. United States, 187 F.3d 14, 17 (1st Cir. 1999) (stating that “Santoro
accompanied the other defendants to the stash house and, whether or not he,
himself, used or carried a firearm, he acted as a lookout for the others and,
thus, facilitated his co-defendants’ use and carriage of the firearms”).
11