Filed: Jan. 09, 2009
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Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT January 9, 2009 No. 08-10183 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 06-00112-CR-CAR-5 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CAREY GILBERT CHAPPELL, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Georgia _ (January 9, 2009) Before ANDERSON, HULL and MARCUS, Circuit Judges. PER CURIAM: Af
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT January 9, 2009 No. 08-10183 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 06-00112-CR-CAR-5 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CAREY GILBERT CHAPPELL, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Georgia _ (January 9, 2009) Before ANDERSON, HULL and MARCUS, Circuit Judges. PER CURIAM: Aft..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 9, 2009
No. 08-10183 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00112-CR-CAR-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CAREY GILBERT CHAPPELL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(January 9, 2009)
Before ANDERSON, HULL and MARCUS, Circuit Judges.
PER CURIAM:
After a jury trial, Carey Gilbert Chappell appeals his conviction for bank
robbery, in violation of 18 U.S.C. § 2113(a). After review, we affirm.
I. BACKGROUND
Because Chappell challenges the sufficiency of the government’s evidence
that he was the bank robber, we review the evidence linking Chappell to the
robbery.
On August 14, 2006, at 11:07 a.m., a SunTrust Bank on Gray Highway in
Macon, Georgia was robbed. That morning, Wyvonia Gillespie, the bank’s
customer service representative, saw an African-American man run toward and
enter the bank. The man had a white T-shirt or towel over his head and was
screaming for help. The white covering was stained with a red substance that
appeared to be blood.
Once inside the bank, the man staggered around and then tried to go through
a locked teller door. When he was unsuccessful, the man’s demeanor suddenly
changed. He stated, “this is a robbery,” jumped over a teller station, pointed
pepper spray at the teller, Kecia Cooper, and said “[g]ive me the money.” The man
grabbed Cooper’s teller drawer containing $7,980, jumped back over the counter
and left the bank. Cooper described the robber as about 5'5" with a small build.
As the robber fled, a bank customer, Nathaniel Dunn, was walking up to the
bank. Dunn saw a man wearing dark clothing and a white towel over his face run
2
out and go behind a nearby dumpster. When Dunn approached the dumpster, the
man said he would shoot Dunn if he did not get back, and Dunn retreated.
Moments later, Dunn saw the man get on a bicycle and leave the area.
Police found the teller drawer in the grass near the dumpster. Inside the
dumpster was a small canister of pepper spray and a white T-shirt with orange
stains, which later were determined to be ketchup. Police also found a partial shoe
track on the teller counter, probably from a tennis shoe. The only identifiable
print, a partial palmprint found inside the bank, did not match Chappell. Of the
money taken, only five $20 bills were “bait bills,” meaning their serial numbers
had been recorded. Thus, of the $7,980 taken in the robbery, only $100 was in bait
bills.
Photographs taken by the bank’s security camera show a dark-skinned man
in dark clothing with a white cloth covering his head and face. Because of this
cloth covering, none of the eyewitnesses saw the robber’s face clearly enough to
identify him. Neither Gillespie nor Cooper was able to identify Chappell in a
lineup, and Dunn was not asked to view a lineup.
Although none of the eyewitnesses could identify Chappell, the government
presented a constellation of circumstantial evidence that Chappell was the bank
robber. For example, on the morning of the bank robbery, between 10:00 a.m. and
3
12:30 p.m., Michael Preston, Jr., bumped into Chappell (whom he knew as “Gee”)
at a Circle-K convenience store behind the SunTrust bank. Chappell was dressed
in black and wearing “a white scarf thing” around his head. Chappell asked
Preston if he wanted to make some money, and Preston responded he did not.
Around 11:30 that morning, Melando Hollings, who lived near the SunTrust
bank, found a man on his porch. The man was wearing a dark shirt and was
“scrunched down” on the floor of the porch looking out at the street. Hollings
described the man as sweaty. When Hollings asked what the man was doing on his
porch, the man asked Hollings for a ride to the Fort Hill area and told Hollings he
had money. Hollings refused, went into his home and got his handgun. Hollings
stood in the door and asked the man to leave. The man asked Hollings to “give
[him] a minute and [he’ll] go.” The man then left.
Approximately twenty minutes after the robbery, Detective Robert Shockley
was in Hollings’s neighborhood behind the bank looking for the bank robbery
suspect.1 Shockley knocked on the door, and Hollings answered. Hollings gave
Shockley a description of the man he found on his porch. Two days later, Hollings
identified Chappell in a photo lineup. Hollings also identified Chappell at trial as
1
Shockley was flagged down by an unidentified man who indicated he had seen a man
run onto the porch of one of the houses and then run around the side of the house. Shockley
investigated, but did not find anyone around the outside of the house.
4
the man on his porch.
Several people who knew Chappell testified that he: (1) never had much
money; (2) did not have a job; (3) did not own a car; (4) was a small man; (5) was
from the Fort Hill area of Macon; (6) rode a bicycle; and (7) always wore black
clothing. When Chappell was arrested in a motel three days after the bank robbery,
police found approximately $300 in new clothing, including two black shirts still in
the shopping bag and a pair of sports shoes, and a blue Chevrolet Caprice.
Chappell had only $18, however, and the serial numbers did not match the stolen
bait bills.
Subsequent police investigation revealed that, on the afternoon of the bank
robbery, Chappell purchased the Chevrolet from Hollis Hunt for $2,500 in cash.
According to Hunt, Chappell approached him and asked to buy the Chevrolet.
Chappell paid in twenty, fifty and hundred dollar bills and did not ask for a bill of
sale. Two days later, the police interviewed Hunt about the sale. Hunt gave the
police the $1,000 that was left of the money Chappell had paid him, but none of the
serial numbers matched the bait bills from the robbery.
The government also called three witnesses who were housed at the Dooly
County jail with Chappell, all of whom testified that Chappell confessed to the
robbery. James Williams knew Chappell before they were incarcerated. Williams
5
testified that on June 5, 2006, Chappell offered to sell Williams some jewelry he
said he had stolen from a jewelry store. Williams declined, and they parted ways.
On July 4, 2006 Williams saw Chappell again. Chappell was looking for
money and told Williams that Hollis Hunt owed him money for the jewelry.
Williams took Chappell to Hunt to get the money. However, after Chappell left
Hunt, he told Williams he still needed money and asked Williams if he would “be
down with hitting a bank with him.” The next day, Williams, who was out on
bond for unrelated drug offenses, had his bond revoked and was placed in the
Dooly County jail (“Dooly”).
While at Dooly, Williams encountered Chappell, who admitted to Williams
he had robbed a bank and explained that the police did not have the right money as
evidence in his trial because he had switched the bank robbery money with Hunt.
Chappell told Williams that the government had “nothing on him” and he was
“going to trial.”
Corey Sheffield was housed next to Chappell for two weeks. During that
time, Chappell told Sheffield that he: (1) had committed the bank robbery, but
police did not have any evidence; (2) wrapped a towel around his head to hide his
face during the robbery; (3) put ketchup on the towel to pretend someone had hit
him; (4) obtained the teller drawer by threatening the teller with pepper spray; (5)
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rode off on his bike after the robbery; (6) threw the fifty dollar bills away because
they had dye on them; and (7) used some of the money to buy a car and new
clothes and hid the rest.
Kenyon Gresham, who was Chappell’s cellmate at Dooly, testified that
Chappell said he: (1) had robbed a bank on Gray Highway; (2) was supposed to
rob the bank with someone else, but the other person was “locked up” so he did the
robbery by himself; (3) put a towel over his face so that the camera could not see
him and jumped over the counter to grab the money; (4) had a bottle of mace with
him during the robbery; (5) after the robbery, ran onto a porch, where someone
gave him a brown shirt to wear, and, after police left the area, ran back to the Fort
Hill area; (5) threw away some of the bills that could not be spent because they
“wasn’t no good”; and (6) used some money to buy a Caprice and let a girl keep
the rest.
II. DISCUSSION
A. Sufficiency of the Evidence
To be convicted of bank robbery under § 2113(a), the government must
prove beyond a reasonable doubt that the defendant, through use of intimidation or
force and violence, took money that was in possession of a bank. See 18 U.S.C. §
2113(a). Chappell argues that the government failed to prove that he was the bank
7
robber, stressing the absence of physical evidence linking him to the crime.2
The government’s evidence established that: (1) in the month leading up to
the robbery, Chappell tried to recruit a friend to help him rob a bank; (2) Chappell
was in the vicinity of the bank on the morning of the robbery wearing, like the
bank robber, a white “scarf thing” on his head and asking a friend if he wanted to
make some money; (3) Chappell remained in the bank’s vicinity just after the
robbery and was found sweating and crouched on the stranger’s porch while
watching the street–i.e., hiding; (4) Chappell offered the stranger money if he
would transport him out of the neighborhood; (5) Chappell was known to wear
black and ride a bicycle and the bank robber wore black and fled the scene on a
bicycle; and (6) Chappell did not have a job, money or a car before the bank
robbery, but suddenly, on the afternoon of the robbery, had $2,500 in cash to buy a
car.
In addition, the government presented three witnesses, Williams, Sheffield
and Gresham, who testified that Chappell confessed to them that he robbed a bank
and gave them details that were consistent with the modus operandi of the
2
We review de novo challenges to the sufficiency of the evidence, viewing the evidence
in the light most favorable to the government and resolving “all reasonable inferences and
credibility evaluations in favor of the jury’s verdict.” United States v. Robertson, 493 F.3d
1322, 1329 (11th Cir. 2007), cert. denied,
128 S. Ct. 1295 (2008). The evidence is sufficient if a
reasonable factfinder could have found that it established the defendant’s guilt beyond a
reasonable doubt. United States v. McDowell,
250 F.3d 1354, 1364-65 (11th Cir. 2001).
8
SunTrust robber. From this evidence, a reasonable jury could conclude beyond a
reasonable doubt that Chappell was the SunTrust bank robber.
Further, contrary to Chappell’s contention, his conviction did not rest
entirely on this “jailhouse confession” testimony, and the other evidence
summarized above provides compelling circumstantial proof that Chappell was the
SunTrust robber. The absence of fingerprint or other physical evidence does not
render the jury’s verdict unreasonable given the circumstantial evidence that
Chappell was the SunTrust bank robber. See United States v. Calderon, 127 F.3d
1314, 1324 (11th Cir. 1997) (explaining that a jury verdict must stand “unless no
trier of fact could have found guilt beyond a reasonable doubt” (quotation marks
omitted)).
B. Sixth Amendment Confrontation Clause
Chappell argues that the district court violated his Sixth Amendment
confrontation rights by improperly limiting his cross-examination of Preston, who
saw Chappell before the robbery, and Gresham, Chappell’s cellmate. Subject to
the Sixth Amendment’s Confrontation Clause, the district court has wide latitude
to limit cross-examination “‘based on concerns about, among other things,
confusion of the issues or interrogation that is repetitive or only marginally
relevant.’” United States v. Arias-Izquierdo, 449 F.3d 1168, 1178 (11th Cir. 2006)
9
(quoting United States v. Baptista-Rodriguez, 17 F.3d 1354, 1370 (11th Cir.
1994)). “The Confrontation Clause is violated if a criminal defendant can
demonstrate that he was prohibited from engaging in otherwise appropriate cross-
examination designed to show bias on the part of the witness, and thereby to
expose to the jury the facts from which jurors could appropriately draw inferences
relating to the reliability of the witness.” United States v. Orisnord,
483 F.3d 1169,
1178 (11th Cir.), cert. denied, ___ U.S. ___,
128 S. Ct. 673 (2007) (quotation
marks omitted). “The test for the Confrontation Clause is whether a reasonable
jury would have received a significantly different impression of the witness’
credibility had counsel pursued the proposed line of cross-examination.”
Id. at
1179. The Sixth Amendment is satisfied if “sufficient information is elicited from
the witness from which the jury can adequately assess possible motive or bias.”
Id.3
1. Gresham 4
3
We review a district court’s restrictions on cross-examination for abuse of discretion.
Orisnord, 483 F.3d at 1178.
4
On appeal, Chappell argues that the district court improperly limited his cross-
examination of government witnesses who testified that Chappell confessed to the bank robbery
while they were housed together in jail. Chappell does not identify those witnesses by name or
analyze them individually. Of the three government witnesses that testified about a jailhouse
confession (Gresham, Williams and Sheffield), Chappell asserted a Confrontation Clause
argument in the district court only with regard to Gresham.
Further, Chappell sought to introduce certified copies of Williams’s and Sheffield’s prior
convictions and review those convictions on cross-examination, but the district court excluded
this evidence and testimony as unduly cumulative because the convictions already had been
10
At the time of trial, Gresham had two pending state court drug charges.
Chappell wanted to inquire into these pending charges on cross-examination “to
question his interest and his motivations and his biases and his eagerness to testify
favorably to the Government to receive favorable treatment” in the state court
cases. Out of the presence of the jury, the district court allowed the parties to
question Gresham, who testified that: (1) he had not received any promises
regarding his pending state court charges; and (2) he did not think he would get
any benefit with regard to those charges by testifying for the government in
Chappell’s case. The district court prohibited Chappell from asking about the
pending state charges in front of the jury.
However, Gresham did testify about his federal charges and sentence. On
direct examination before the jury, Gresham testified that he had pled guilty in
March 2007 to federal drug charges and that he understood how a Rule 35 motion
might reduce his federal sentence. On cross-examination, Chappell reviewed
Gresham’s two federal drug convictions and the mandatory minimum sentences he
faced on those charges. Gresham also admitted that: (1) he had pled guilty; (2) he
had received a 60-month sentence; (3) he did not want to serve a long prison
covered on direct examination. Chappell does not challenge these evidentiary rulings on appeal
and does not identify any line of questioning as to Williams and Sheffield that he should have
been allowed to pursue. Thus, with respect to these three witnesses, we review Chappell’s
Confrontation Clause claim only as to Gresham.
11
sentence; (4) he was trying to get the shortest sentence possible; (5) under the
terms of his plea agreement, he could get his sentence reduced for providing
substantial assistance in the prosecution of another person, but only if the
government filed a motion; (6) he already had received one sentence reduction; and
(7) he hoped to get a further reduction for his testimony in Chappell’s trial.
Here, there was no showing that Gresham’s pending state drug charges were
relevant to the facts of Chappell’s bank robbery case or that Gresham made a deal
with the government with regard to his pending state charges. Indeed, Gresham
testified that he did not expect to receive any favorable treatment as to his state
charges for testifying in Chappell’s federal trial. Thus, Gresham’s pending state
drug charges were only “marginally relevant.” See Francis v. Dugger, 908 F.2d
696, 699, 702 (11th Cir. 1990) (concluding, on habeas review, that trial court did
not violate Confrontation Clause in prohibiting defendant from asking government
witness about pending unrelated murder charge because it was only “marginally
relevant”).5 Furthermore, Chappell was permitted to explore on cross-examination
Gresham’s motives for testifying for the government, including his hope for a
5
Like the district court, we reject Chappell’s argument that Gresham was a “star” or
“key” witness for the government. The government’s case against Chappell was made by
piecing together circumstantial evidence using the testimony of numerous witnesses, of which
Gresham was only one. As the district court noted, this trial had no star or key government
witness.
12
reduced sentence on his federal drug charges upon a Rule 35 motion by the
government. In other words, sufficient information was elicited from Gresham for
the jury to adequately assess his possible bias. Under the circumstances, we cannot
say the district court violated the Confrontation Clause or abused its discretion in
prohibiting cross-examination as to Gresham’s pending unrelated state charges.
2. Preston
Preston gave a statement to law enforcement about seeing Chappell on the
morning of the robbery and agreed to be a witness in Chappell’s case on August
14, 2006. On March 20, 2007, Preston was placed on eight years’ probation for a
state felony theft by receiving offense.6 In addition, on October 5, 2007, ten days
prior to Chappell’s trial, Preston was arrested and charged with a misdemeanor
theft by receiving offense and probation violation. At the time of trial, Preston was
out on bond on the pending state charge.
At trial, Chappell wanted to question Preston about his prior felony theft by
receiving offense, his probationary status for that felony offense and his recent
arrest on the state misdemeanor charge. During a proffer outside the jury’s
presence, Preston testified that the federal prosecutor had not promised him any
6
However, because the theft offense was adjudicated under Georgia’s first offender
statute, it was not considered a “conviction.” See O.C.G.A. § 42-8-60 (permitting court to defer
proceedings, place first offender defendant on probation without a judgment of guilt and dismiss
the charges once defendant completes the probationary term).
13
benefit for his testimony. The district court found that, because Preston agreed to
testify and gave a statement before he was placed on state probation on March 20,
2007 or arrested on October 5, 2007, those events were too remote and irrelevant to
show bias. The district court limited the cross-examination to whether Preston was
on state probation, whether he had been charged with violating that probation and
whether he hoped to benefit from his testimony. After the jury returned, Preston
admitted on cross-examination that he currently was on state probation and faced a
potential probation violation, but denied that he hoped to benefit favorably by
testifying for the federal government in Chappell’s trial.
We cannot say the district court abused its discretion in concluding that the
possibility of bias on account of these state matters was remote. Chappell made no
showing of a deal between Preston and either state or federal prosecutors, making
these pending state charges only marginally relevant. See Francis, 908 F.2d at 702.
Moreover, the district court allowed Chappell to question Preston about his current
probationary status and the threat of a probation violation. Thus, Chappell was able
to elicit sufficient information for the jury to adequately assess Preston’s possible
bias. The additional information Chappell wanted to elicit about Preston’s theft-
offense probation and his pending state charge for misdemeanor theft would not
have given a reasonable jury a significantly different impression of Preston’s
14
credibility. Therefore, the district court did not violate the Confrontation Clause or
abuse its discretion in limiting Preston’s cross-examination.
C. Rule 404(b) Evidence
Chappell argues that the district court violated Federal Rule of Evidence
404(b) by permitting Williams to testify about Chappell’s jewelry store robbery.
Under Rule 404(b), extrinsic evidence of prior bad acts may be admitted
only for purposes other than proof of bad character. Fed. R. Evid. 404(b).7
Evidence of criminal activity other than the offense charged is not subject to Rule
404(b) analysis, however, when the evidence is “(1) an uncharged offense which
arose out of the same transaction or series of transactions as the charged offense,
(2) necessary to complete the story of the crime, or (3) inextricably intertwined
with the evidence regarding the charged offense.” United States v. Ellisor, 522
F.3d 1255, 1269 (11th Cir. 2008). Such evidence is admissible if it is “linked in
time and circumstances with the charged crime, or forms an integral and natural
part of an account of the crime, or is necessary to complete the story of the crime
for the jury.” United States v. Williford,
764 F.2d 1493, 1499 (11th Cir. 1985).
7
Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
Fed. R. Evid. 404(b).
15
Even if the evidence meets this test, it still may be excluded if the “probative value
‘is substantially outweighed by the danger of unfair prejudice.’” United States v.
Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992) (quoting Fed. R. Evid. 403).8
Williams testified that, two months prior to the bank robbery, Chappell
offered to sell him some jewelry he said he had stolen from a jewelry store.
Williams declined and, a month later, Chappell told Williams that he needed to see
Hunt to get money for the jewelry. After stopping to see Hunt, Chappell told
Williams he still needed money and asked Williams if he would help rob a bank.
Chappell’s attempt to recruit Williams to rob a bank was both relevant and
probative of Chappell’s identity as the SunTrust bank robber. Chappell’s
statement about the jewelry store robbery was necessary to explain the relationship
between Chappell and Williams and gave context to Chappell’s bank robbery
request. Had the jewelry store robbery testimony been excluded, the jury would
have been led to the mistaken belief that Chappell asked Williams out of the blue
to rob a bank. The testimony about the jewelry store robbery established that
Chappell felt comfortable talking with Williams about committing illegal acts. As
such, Williams’s recounting of Chappell’s jewelry store robbery statement was
inextricably intertwined with his testimony about Chappell’s attempt to recruit him
8
We review admission of prior bad acts evidence for abuse of discretion. Ellisor, 522
F.3d at 1267.
16
to commit a bank robbery. Given that this testimony was probative of identity–the
key question in the case–we cannot say that its probative value was substantially
outweighed by the danger of unfair prejudice. Accordingly, we find no abuse of
discretion. For all the foregoing reasons, we affirm Chappell’s bank robbery
conviction.
AFFIRMED.
17
