Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-9-2008

USA v. Atkinson
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3155




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                                                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                       No. 07-3155
                       ____________

             UNITED STATES OF AMERICA,

                                  Appellee,

                             v.

                  TONY D. ATKINSON,
                     also known as
                    TONY ATKINS,


                     Tony D. Atkinson,

                                  Appellant.

                       ____________

       On Appeal from the United States District Court
          for the Western District of Pennsylvania
                   (D.C. No. 05-cr-00141-1)
       District Judge: Honorable Donetta W. Ambrose
                        ____________

         Submitted Under Third Circuit LAR 34.1(a)
                     October 2, 2008

Before: FISHER, CHAGARES and HARDIMAN, Circuit Judges.

                  (Filed: October 9, 2008)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

HARDIMAN, Circuit Judge.

       Tony Atkins1 appeals his conviction and 210 month sentence following a jury trial

for bank robbery. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and

we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We will affirm.

                                             I.

       Because we write for the parties, we recount only those facts essential to our

decision.

       On July 16, 2003, a black male identified as Atkins robbed a PNC Bank office on

Liberty Avenue in Pittsburgh, Pennsylvania. After leaving the bank, the man ran down

Liberty Avenue, turned onto several adjacent streets, and was eventually chased down and

arrested near Seventh and Penn Avenue. Atkins claims that he was wrongly identified as

the bank robber after he collided with a person who dropped a bag of money while

walking down Penn Avenue. Atkins claims that he picked up the bag of money, started

running away, and minutes later was subdued and arrested for a crime that he did not

commit.




       1
         We will refer to Appellant Tony D. Atkinson, a/k/a Tony Atkins as “Atkins.”
Both the Appellant and the Appellee referred to him as “Atkins” in their submissions to
this Court, and we will follow their naming conventions.

                                             2
       Following a jury trial, Atkins was convicted of bank robbery in violation of 18

U.S.C. § 2113(a)(1). He was sentenced to 210 months imprisonment, to be followed by

three years of supervised release.

                                              II.

       Atkins first argues that he is entitled to a new trial because the District Court

violated his right to due process when it failed to instruct the jury, or allow Atkins to

argue to the jury, that it could infer from the government’s failure to produce a bank

surveillance tape that the contents of the tape would have supported Atkins’s defense of

mistaken identification. Atkins also alleges that the District Court improperly placed the

burden on him to prove that the surveillance tape existed.

       Courts will allow an adverse inference instruction to be given to the jury in cases

where “the government fails to produce evidence, and the instruction tells the jury that the

failure to produce this evidence creates a presumption that the evidence would be

favorable to the defendant.” United States v. Drozdowski, 

, 825 n.3 (3d Cir.

2002). An adverse jury instruction will not be given, however, where the evidence was

not in the control of the government and actually suppressed or withheld from the

defense. 

give an “absent witness” jury instruction because the

government was not in possession of the witness); see also Gumbs v. Int’l Harvester, Inc.,

, 96 (3d Cir. 1983) (explaining that “it must appear that there has been an

actual suppression or withholding of the evidence; no unfavorable inference arises when



                                              3
the circumstances indicate that the document or article in question has been lost or

accidentally destroyed, or where the failure to produce it is otherwise properly accounted

for”).

         Here, the record is devoid of any evidence that the prosecution had the surveillance

tape in its custody and withheld it to frustrate Atkins’s defense. Instead, the defense

relies on prior statements by the prosecution and by a bank teller that a tape existed and

that the prosecution was looking for it. But when the issue of the surveillance tape was

discussed at trial, the prosecution represented to the District Court that:

         I quite frankly don’t know any one in the case, assistant DA’s, detectives,
         anybody, FBI, who has ever seen this tape. I apologize because there has
         been lots and lots of talk about it. . . . I’m not sure if the tape really exists or
         not. I know there was lots of talk about it but I’ve never interviewed
         anyone who actually touched the video tape from that bank or who has ever
         seen it. I’ve not talked to any prosecutors, state or federal, who have ever
         seen this tape either but we have also looked diligently . . . .

Although the record suggests that there was confusion over the status of the surveillance

tape, this confusion alone does not show that the prosecution had the tape under its

control and that it suppressed or withheld it during the trial. Accordingly, we decline to

find that Atkins’s due process rights were violated when the District Court refused to

instruct the jury that it could infer that the contents of the video tape would have

supported the defense.

         Nor do we find that the District Court precluded Atkins from presenting a defense

of misidentification. During closing arguments, the District Court allowed Atkins’s



                                                  4
attorney to tell the jury that it could draw an adverse inference from the missing

surveillance tapes. Atkins’s attorney told the jury:

       to the extent that there were cameras in that bank and we know there were
       cameras in that bank based on Tabatha Gross’ testimony, we also know that
       she changed the tape every morning. That was her job and she had testified
       she changed the tape that morning. The government did not produce
       anybody to come in and tell you if the tape wasn’t working that day, if the
       cameras weren’t working that day. Why was there never a tape? Nobody
       has ever come to explain, first of all, whether a tape exists but why a tape
       wouldn’t exist. . . . [T]he government has the burden and it carries that
       burden.

Before jury deliberation began the next day, the Court instructed the jury:

       The existence or non-existence of a tape is a question of fact, and it is for
       you, and you alone, to decide. . . . You will decide from the evidence you
       heard or the lack of evidence whether or not a tape exists and how
       important that fact is to your decision in this case. . . . [Y]ou may or may
       not, depending on what you find credible in this case, draw any inferences
       suggested by [Atkins’s attorney], in her closing argument with respect to the
       video tape and with respect to anything else.

Thus, Atkins was not precluded from arguing to the jury that it could infer from the

prosecution’s failure to produce a bank surveillance tape that such a tape would have

supported Atkins’s defense of mistaken identity.2


       2
          Atkins’s additional argument that the District Court placed the burden on him to
prove that a surveillance video tape existed also fails. While the burden was on the
government to explain to the Court why it did not produce the tape, see Gov’t of the
Virgin Islands v. Testamark, 

, 1165 (3d Cir. 1978), the government met this
burden when it represented to the Court the circumstances of the missing tape and its
efforts in locating the tape. Morever, the record shows that the District Court allowed
Atkins to argue to the jury that it was the government’s burden to prove that a tape did not
exist. The District Court later reiterated to the jury that “the government has the sole, the
only burden of proving this case. The defendant has no burden. He is not required to

                                             5
                                              III.

       Atkins next argues that his due process rights were violated when the District

Court denied his motion to suppress two in-court identifications of him. Atkins asserts

that the identifications resulted from procedures which were “unduly suggestive” and

which “created a substantial likelihood of misidentification.” Specifically, Atkins argues

that the identifications made by the witnesses, both bank tellers who were working at the

time of the robbery, were improperly made at a preliminary hearing because Atkins stood

beside defense counsel while handcuffed, shackled, and wearing a red Allegheny County

Jail jumpsuit.

       We review a denial of a motion to suppress evidence “for clear error as to the

underlying facts, but [will] exercise plenary review as to its legality in the light of the

court’s properly found facts.” United States v. Brownlee, 

, 137 (3d Cir.

2006) (quoting United States v. Inigo, 

, 656 (3d Cir. 1991)).

       We utilize a two-step analysis for determining whether an identification procedure

violated a defendant’s due process rights. See United States v. Maloney, 

,

355 (3d Cir. 2008). First, we review whether the identification procedure was

“unnecessarily suggestive.” 

identification procedure was unnecessarily

suggestive, we then assess the reliability of the identification by reviewing the “totality of



offer any evidence. He is not required to prove anything in his defense. It is only the
government who has the burden of proving the essential elements of the offense
charged.”

                                               6
the circumstances.” Id.; United States v. Emanuele, 

, 1130 (3d Cir. 1995).

“A ‘suggestive and unnecessary identification procedure does not violate due process so

long as the identification possesses sufficient aspects of reliability’” in light of the totality

of the circumstances. 

(quoting Manson v. Brathwaite, 

, 106 (1977)).

        Here, the parties and the District Court agree that the identification process was

suggestive. Accordingly, we must ask whether the identifications met the requisite

standards of reliability.

        In assessing the reliability of an identification procedure, the totality of the

circumstances analysis requires the Court to consider: (1) the witness’ opportunity to

view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the

witness’ accuracy in the prior description of the criminal; (4) the witness’ level of

certainty demonstrated at the confrontation; and (5) the length of time between the crime

and the confrontation. Neil v. Biggers, 

, 199 (1972); 

.

        We agree with Atkins that some of the Biggers factors weaken the reliability of the

bank tellers’ identifications. For example, both tellers – Tabatha Gross and Sonia

McNary – testified that the entire robbery happened very quickly. McNary explained that

Atkins was standing right next to her for “[p]robably no more than a minute because he

was moving real fast.” Gross stated that “he moved pretty quick.” McNary also admitted



                                                7
that she did not see his whole face because “he [had] on a hat and glasses.” Moreover,

both witnesses admitted that they were shocked and disoriented after the robbery. They

also made mistakes in the accuracy of their initial descriptions of Atkins. Gross described

the robber as “[black male] approx[imately] 6 ft. dark complexion, baseball cap, dark

pants waering [sic] a yellow T shirt.” McNary described the robber as “[black male],

approx[imately] 5'7, 200 lbs., white and blue ball cap, wearing a yellow shirt and sun

glasses.” While Atkins is a black male, he is 5'11" and weighs 200 lbs. At the time of his

arrest, he was wearing a yellow polo shirt instead of a t-shirt and did not have a hat or

sunglasses in his possession.

       The other Biggers factors, however, suggest that the witnesses’ identifications

were reliable. For instance, both witnesses had the opportunity to observe Atkins at close

range despite the speed of the robbery. Gross testified that she was able to get a good

look at him, including his face, when he was standing “[j]ust inches from [her].” She

watched him walk past two tellers and then back to her and he was close enough that he

bumped into her. McNary testified that she first saw Atkins standing behind the teller

counter next to Gross. He later moved between her and another teller and was standing

“a couple inches” from her, where she was able to look at him. While pulling money out

of her drawer, Atkins told McNary “don’t say nothing, don’t move” and McNary later

watched Atkins run past the window when he left the bank.




                                              8
       In their initial descriptions of Atkins, both witnesses accurately described him as a

black male wearing a yellow shirt. They also testified that they were confident in their

identifications of Atkins. Gross testified that “[e]ven if he didn’t have a jump suit on, I

still would have recognized him” at the preliminary hearing. McNary testified that she

identified Atkins at the preliminary hearing because she “remembered seeing him at the

robbery.”

       Accordingly, we are satisfied that the totality of the circumstances shows that there

were sufficient indicia of reliability in the bank tellers’ identifications. The witnesses saw

Atkins from a close distance and paid attention to him, gave relatively accurate prior

descriptions, and testified that they identified him based on their memory of him at the

time of the robbery. Accordingly, the District Court did not err in applying the Biggers

factors when it denied Atkins’s motion to suppress the in-court identifications by two

witnesses.

                                             IV.

       Finally, Atkins argues that the District Court improperly sentenced him by: (1)

failing to respond to his 18 U.S.C. § 3553 arguments; (2) giving the advisory Guidelines

presumptive weight; and (3) imposing a sentence greater than necessary. We review

Atkins’s sentence for an abuse of discretion. Gall v. United States, 

, 597

(2007).




                                              9
       At sentencing, a district court must: (1) calculate the Guidelines range; (2) decide

whether a departure under the Guidelines is appropriate; and (3) decide whether to vary

from the Guidelines based on the relevant § 3553 factors. United States v. Gunter, 

, 247 (3d Cir. 2006). Although courts must treat the Guidelines as advisory, they

“are not ‘required to routinely state by rote that they . . . know the sentencing guidelines

are now advisory.’” United States v. Dragon, 

, 505 (3d Cir. 2006) (quoting

United States v. Cooper, 

, 329 (3d Cir. 2006)). Instead, “the record must

demonstrate that the trial court gave meaningful consideration to the § 3553 factors.”

. “The court need not discuss every argument made by a litigant

if an argument is clearly without merit.” 

of the record demonstrates that the District Court properly followed the

procedure outlined in Gunter to determine Atkins’s sentence. First, the parties agree that

the District Court correctly calculated the applicable Guidelines range – 210 to 262

months – and that Atkins’s 210 month sentence is at the low end of the range. Next, the

District Court properly considered the § 3553 factors and explained that the Court’s “job

is to fashion a sentence that is sufficient but not greater than necessary to achieve the

purposes of sentencing.”

       The District Court reviewed the “nature and circumstances of the offense,”

§ 3553(a)(1), stating:

       here we have another bank robbery, which is a serious offense. . . . [A]ll
       the things that Mr. Burke said about the circumstances of the offense, the

                                              10
       location, Fifth Avenue Place, a busy corner at lunchtime, you know, lots of
       people around, make it even more serious because of the potential for
       someone being harmed. So the offense level given to this crime by the
       advisory guideline is an appropriate offense level.

The District Court then discussed the “history and characteristics of the defendant,”

§ 3553(a)(1), noting that “what has happened is that you have spent 34 of the last 36 years

in jail, and you are a career offender, so you are at the top of the list there and I have to

consider that.”

       The District Court next discussed the need for the sentence to “afford adequate

deterrence,” § 3553(a)(2)(B), “protect the public,” § 3553(a)(2)(C), and “provide the

defendant with needed . . . treatment in the most effective manner,” § 3553(a)(2)(D). The

District Court questioned Atkins’s ability to be deterred and stated that “it appears that the

only way that the public can be protected is by incarceration.” The Court concluded by

stating that “the advisory guideline range is an appropriate range for your case because of

all the factors that I have considered and all the things that I have just said. . . . You’re

old enough to make a decision this time as to whether or not you’re going to die in prison

or not, and my hope is that it’s not. So I think the low end of the range at least gives you

the opportunity to make that decision.” The District Court’s analysis was more than

sufficient under Gunter.

       Finally, we hold that the District Court did not abuse its discretion in rejecting

Atkins’s arguments that his “old” age (he was 52 years old when he committed the

robbery and 57 years old when he was sentenced; accordingly, he will be approximately

                                              11
70 years old if he serves the full 210 months) made his sentence “greater than necessary

and unreasonable” in light of the aforementioned § 3553 factors considered by the Court.3

      For the foregoing reasons, we will affirm the judgment of the District Court.




      3
          We also find no abuse of discretion in the District Court’s refusal to uphold
Atkins’s suggestion that because he will likely receive a mandatory revocation of his
parole for a crime committed in Louisiana, the Court should decrease his sentence to
reflect his additional time of incarceration in Louisiana. Specifically, Atkins suggested
that because he will likely serve 72 months on the mandatory state revocation in
Louisiana, his sentence should be reduced by 72 months to a final sentence of 138
months. The District Court considered this argument and reasonably responded: “I’m not
going to speculate on what Louisiana does. If I were a judge in Louisiana and looked at
this federal sentence, I’d probably say what’s the point of adding on? But I don’t know
these Louisiana judges. I don’t know what they’ll think.”

                                           12