UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GENE ALLEN HOWELL, Defendant-Appellant.
No. 20-5858
United States Court of Appeals for the Sixth Circuit
Decided and Filed: November 8, 2021
18 F.4th 237
Before: GUY, MOORE, and GIBBONS, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 21a0253p.06. Appeal from the United States District Court for the Western District of Tennessee at Jackson. No. 1:17-cr-10098-1—S. Thomas Anderson, District Judge.
COUNSEL
ON BRIEF: J. Nicholas Bostic, Lansing, Michigan, for Appellant. Matthew J. Wilson, UNITED STATES ATTORNEY‘S OFFICE, Jackson, Tennessee, for Appellee.
RALPH B. GUY, JR., Circuit Judge. A jury convicted Gene Howell of armed bank robbery, brandishing a firearm during the robbery, a separate attempted armed bank robbery, discharging a firearm during the attempted robbery, and being a felon in possession of a firearm. Howell now argues on appeal that the district court improperly: interfered with his right to testify; allowed the identification testimony of a bank teller; refused to bifurcate the felon-in-possession-of-a-firearm charge that was “vindictively added” sixteen months after the initial indictment; applied the base offense level for attempted first-degree murder; and imposed a two-level offense enhancement because a victim was “physically restrained.” Finding no reversible error, we AFFIRM.
I.
A.
In 2017, defendant Howell‘s girlfriend was Janet Nicole Thompson. She testified for the government at Howell‘s trial. Thompson had pleaded guilty to aiding and abetting Howell in the successful robbery of a bank in Finger, Tennessee, on August 25, 2017, and aiding and abetting Howell in the attempted robbery of a bank in Reagan, Tennessee, on October 14, 2017. Security cameras at each bank recorded the events (without audio), and the video footage was shown to the jury.1
The Finger Bank Robbery. Thompson told the jury that in August 2017 she and Howell were unemployed and homeless. They were staying with friends, in hotels, or in their car. The day before the Finger bank robbery, Howell hid food in the woods, and took Thompson to a stolen side-by-side utility vehicle, which he hot-wired to start. The next morning, Howell gave Thompson “strict instructions” to follow him while he drove the side-by-side to a store, turn off her phone, and then meet him later at a familiar spot in the woods. Thompson did just that.
That same day, August 25, 2017, security cameras at a bank in Finger, Tennessee, recorded a lone man as he robbed the bank, while wearing full-body camouflage, a full-face camouflage ski mask, sunglasses, and black gloves. The security video shows that the robber arrived at the bank in a side-by-side utility vehicle and parked close to the bank‘s entrance. The bank manager, sixty-seven-year-old Dianne Talbott, and two tellers were working that day. Shortly after 9:00 a.m., the robber entered the bank and walked to the teller‘s counter, where Talbott was standing. He dropped some white garbage bags on the counter, pointed a handgun at Talbott, and demanded cash. The two tellers quickly came to assist. While waving his gun at the three employees and threatening to shoot them, the robber yelled at the tellers to get the money from their cash drawers. After the employees scrambled to put the cash in the bags, the robber demanded money from the vault and commanded Talbott to lie on the floor. Referring to Talbott, the robber told the tellers that “if y‘all don‘t hurry up, I‘m fixing to kill this bitch.” They complied and the robber left the bank with about $43,274.00. The robber was in the bank for a total of about seventy seconds.
Thompson testified that after she had waited in the woods near Finger for approximately thirty to forty-five minutes, Howell jumped in her Jeep wearing camouflage. He threw a bag in the back, stashed a handgun under the Jeep‘s gearbox, and told Thompson to drive. Howell
Later, Howell paid cash for a hotel room in Mississippi, where he told Thompson the details of the Finger bank robbery. Howell said there were three women in the bank and mentioned that one was the mother of their high school teacher, John Talbott. Howell recounted that he called Ms. Talbott “a stubborn bitch” because “she refused to give him the money,” and “she fell on the floor” and screamed when “he threatened to shoot her.”
Thompson noted that Howell had “money that he did not have before,” which he kept inside a lockbox. Despite being unemployed, after the robbery Howell paid off traffic tickets, paid a deposit and the first month of rent on a house, and quickly purchased a car, rims, tires for Thompson‘s Jeep, brake pads, a camera system, a stereo, a speaker, tennis shoes, glasses and contact lenses for Thompson, furniture, and methamphetamine—all of which Howell paid for with cash.
The Reagan Bank Robbery. Thompson testified that soon Howell had spent all the money from the Finger robbery, so she and Howell began driving around West Tennessee to look for another bank to rob. Howell eventually settled on a bank in Reagan, Tennessee. On October 14, 2017, Thompson dropped Howell off near the target bank. Thompson testified that Howell had a pistol and was wearing khaki pants, a Nike jacket that he had turned inside out, black gloves, shoe polish on his face, and a mask.
On the morning of October 14, 2017, security cameras at a bank in Reagan recorded a man as he attempted to rob the bank, while wearing khaki pants, a black jacket, black gloves, sunglasses, and a full-face camouflage ski mask. The bank manager (Teresa Camper) and her co-worker had just walked into the enclosed teller area when the robber entered the bank and went to the locked door next to the teller‘s window and tried opening it. The robber pointed his gun at the small window in the door as he peered through it at Camper and yelled twice “open the damn door.” Visibly frustrated, the robber ran to the teller‘s window and pointed his gun at one of the women. He ran back to the door and looked through its window, before stepping back and firing a shot at the door window. Camper and her co-worker got down on floor and crawled to the end of the bank as the robber fled. The robber was in the bank for about thirty seconds.
Thompson told the jury that she picked Howell up, and he told her that the robbery “went bad” and that “he didn‘t get any money.” Howell also told Thompson he had “shot the gun at the glass, because they would not open the door.” They then traveled to Mississippi, where Thompson and Howell were arrested after a traffic stop on October 24, 2017. In the vehicle, police found a loaded Springfield .45 caliber pistol, a Taurus 9mm caliber pistol, and a box of .45 caliber ammunition in a bag behind Howell‘s seat. Law enforcement later recovered bullet fragments and an empty .45 caliber shell casing at the Reagan bank. An analyst with the FBI
B.
In a four-count indictment filed on November 20, 2017, Howell was initially charged with: two counts of bank robbery (or attempted bank robbery), with a dangerous weapon, in violation of
Howell then simultaneously filed three motions in limine. First, under
In a written pretrial order, the district court denied Howell‘s motion to exclude Talbott‘s identification testimony, concluding that “[h]er testimony is admissible.” After the jury was selected, the court took up Howell‘s other two motions. The government informed the court that Howell stipulated to knowing he was a convicted felon for purposes of
After the government presented its case in chief, the jury was briefly excused. Howell acknowledged under oath that he understood his right to testify or not testify, stated that he did not wish to testify, and affirmed that he made the decision “freely and voluntarily.” Howell presented no evidence. The jury found Howell guilty on all five counts and made special findings that Howell brandished a gun at the Finger bank robbery and discharged a gun at the Reagan bank robbery.
At sentencing, the district court (over Howell‘s objections) applied: (1) a two-level enhancement under
Howell timely appealed.
II.
Howell assigns five errors to the district court: Three errors relate to his trial, and two errors concern the sentence the district court imposed. We consider each in turn.
III.
A.
Howell contends the district court interfered with his constitutional right to testify at trial because the court concluded that, unless and until Howell decided to testify, the court would not rule on Howell‘s motion in limine to prohibit the government from using his prior convictions to impeach him under
The Supreme Court‘s decision in Luce v. United States, 469 U.S. 38 (1984), is all but dispositive of the issue. There, the district court denied the defendant‘s motion in limine to preclude the government from using his prior controlled substance conviction to impeach him under Rule 609, and the defendant did not testify at trial. Id. at 39-40. The Court concluded that the district court‘s in limine ruling was unreviewable on appeal. Id. at 40-41. The Court held that “to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.” Id. at 43. Thus, because Howell opted not to testify, he forfeited any challenge to the district court‘s ruling, including the decision to reserve its ruling. See United States v. Gunter, 551 F.3d 472, 483 (6th Cir.) (collecting cases), cert. denied, 558 U.S. 871 (2009); United States v. Books, 914 F.3d 574, 577, 579-80 (7th Cir.), cert. denied, 139 S. Ct. 2682 (2019).
Howell‘s rejoinder is that Luce does not control because this case involves the district court‘s refusal to issue a pre-testimonial ruling on his motion. Although it appears Howell is correct that this court has not addressed this precise situation, we see no reason why Howell‘s distinction makes any difference. The fact remains that “the [appellate] court must know the precise nature of the defendant‘s testimony, which is unknowable when, as here, the defendant does not testify.” Luce, 469 U.S. at 41. Even a defendant‘s “proffer of testimony“— which Howell never offered—“is no answer” because the actual “trial testimony could . . . differ
Nothing precludes a district judge from reserving an in limine ruling. The reality is that an in limine ruling is “not binding on the trial judge, and the judge may always change [their] mind during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3 (2000). That is true “even if nothing unexpected happens at trial.” Luce, 469 U.S. at 41-42. Thus, the most Howell could have gained from the district court ruling on his motion was a tentative sense of protection on cross-examination—a fleeting benefit that could be revoked at any moment. For that reason, reserving ruling on a pretrial motion until a defendant testifies does not affect the decision to testify any more than an adverse ruling. The defendant still “must decide whether or not to take the stand” and risk “impeachment by prior convictions“; and if the defendant testifies, the government still “must choose whether or not to impeach” the defendant with a prior conviction and “risk possible reversal on appeal from its use.” Ohler, 529 U.S. at 757-58. It is not unconstitutional to “require the defendant to weigh such pros and cons in deciding whether to testify” under the “normal rules of trial.” Id. at 759-60 (citation omitted).5
Although the possibility of being “subject to impeachment by the use of a prior conviction” on cross-examination, in some sense, “may deter a defendant from taking the stand,” that possibility does not amount to a constitutional violation because such circumstances do “not prevent [a defendant] from taking the stand.” Id. at 759 (emphasis added); cf. Nevada v. Jackson, 569 U.S. 505, 509 (2013). Accordingly, the district court did not obstruct Howell from exercising his constitutional right to testify.
B.
Howell also challenges the denial of his motion in limine to exclude the identification testimony of Dianne Talbott, the Finger bank manager. He contends the testimony was improper lay opinion testimony under
A fundamental rule of evidence is that “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”
Howell does not challenge Talbott‘s first-hand account of the Finger bank robbery. Rather, he takes issue with Talbott‘s testimony identifying him as the Finger bank robber based upon what she learned after the robbery. In particular, Talbott testified on direct examination, “I could tell it was a man, but that was all. I was so frightened. You know, I wasn‘t even paying any attention to the voice really. But I knew it was a man.” (PageID 672). Next, the following exchanged occurred.
Q. Okay. You mentioned this man pointing the gun at you and threatening to kill you. Was he doing the same with the other ladies?
A. Oh, he was, he was threatening all of us. But I‘m not sure, but I think I‘m the only one he threatened to kill.
Q. What did you take from that?
A. Well, it just -- it felt like he knew me. You know, not -- of course, I didn‘t know who it was. But I felt like once they found out who robbed the bank, that I would know them.
Q. Okay. Was there a later occasion where you were with your husband and you came to a realization about who robbed you?
A. Well, on the -- in October, I can‘t recall the date, it‘s 14th, 15th, something in there --
Q. Talking about 2017?
A. Yes. Yes. My husband and I were sitting on a Saturday morning eating breakfast and watching the news. . . . And the news come on about the bank in Reagan being robbed, or attempted robbery. And I looked, I looked at the film on TV, and I looked at my husband, I said, that is our bank robber right there. Of course, I didn‘t know who it was, but I knew same MO, same everything.
Q. Okay. Now the defendant, Gene Howell, do you know him?
A. I do.
Q. Tell these folks how you know him?
A. I know him through his deceased wife.
Q. Okay. Had he come in your bank at one time?
A. He had. He had.
Q. How many times would you say he came in the bank?
A. I‘m not sure. I know he may have come in with her once or so. But after she passed he came in and asked me to open him an account up. . . . [A]s it turned out I couldn‘t help him. But before he left, I hugged him and wished him well, you know. Told him, you know, that I think about him, because they have two children.
Q. Okay. Was this -- what would you say, months before or a couple of years before the robbery?
A. It was just right after his wife passed.
Q. Okay.
A. I think she passed – I‘m not sure what year she passed in. But it‘s been quite a bit before the bank robbery.6
Q. All right. Did you learn that the defendant had been arrested for the bank robberies? A. I did.
Q. Okay. Putting everything together --
A. It made a lot of sense to me.
Q. Okay.
A. You know.
Q. Do you believe he‘s the one that robbed --
A. I do. I do.
(PageID 673-76 (emphasis added)).7 On cross-examination, the speculative nature of Talbott‘s testimony was further revealed.
Q. And, Ms. Talbott, were you able to identify the defendant when you were questioned by law enforcement when this robbery happened?
A. No. It‘s like I told them, I couldn‘t see anything. He had everything covered. I was frightened. I just knew it was a male. But it felt really personal. It felt like he targeted me. And I told them, I said, I don‘t know who that was. But when they catch him, I feel like I will know them. I feel like they have been in this bank before.
(PageID 684-85 (emphasis added)).
Talbott‘s identification of Howell was not “rationally based on [her] perception[s].”
Here, Talbott did not identify Howell based on any objective perceptions from during the robbery or the one alleged occasion when she had encountered Howell nearly three years before the robbery. She did not offer any descriptive nexus between her alleged prior encounter with Howell and what she perceived about the robber, such as “size,” “weight,” “manner of conduct,” or voice. See
Talbott‘s testimony was also not “helpful” to the jury.
“Nor is it helpful for a lay opinion witness to speculate or to repeat previously-admitted evidence that requires no explanation.” Id. That is, “a lay witness may not explain to a jury what inferences to draw . . . because this crosses the line from evidence to argument.” Id. at 381 (cleaned up) (quoting Freeman, 730 F.3d at 598); see also United States v. Earls, 704 F.3d 466, 472-73 (7th Cir. 2012) (“Rule 701 does not extend so far as to allow a witness to serve as the thirteenth juror and compare two pieces of evidence that are already available to the jury.“); United States v. Jett, 908 F.3d 252, 271-72 (7th Cir. 2018) (case agent‘s lay testimony about changes in defendant‘s appearance between time search warrant was executed and time of trial was not helpful to jurors, who could observe surveillance footage of disguised bank robbers, because agent‘s testimony did not provide sufficient detail about length and manner of his interactions with defendant, which appeared to be “fleeting“).
But reversal is not warranted because any error in allowing Talbott‘s testimony was harmless. See United States v. Kettles, 970 F.3d 637, 644-45 (6th Cir. 2020);
In this case, the jury: heard Howell‘s accomplice, Thompson, testify that Howell admitted to committing the Finger bank robbery; heard her step-by-step account of Howell‘s actions before and after the robbery, including that Howell was wearing a camouflage mask and clothing and driving a side-by-side utility vehicle; saw that the bank‘s security videos corroborated Thompson‘s testimony; had receipts and heard testimony of Howell‘s exorbitant purchases immediately following the robbery, despite having no job; and had a report showing “moderate support” for Howell‘s DNA on samples taken from the side-by-side vehicle. Moreover, the district court specifically instructed the jury on Talbott‘s testimony and the various concerns surrounding identifications, such as
In these circumstances, any error in allowing Talbott‘s identification testimony was harmless.
C.
Next, Howell argues that the district court erred in denying his motion in limine to sever the charge in Count 5, violation of
1.
“We review the denial of a motion for severance under an abuse of discretion standard.” United States v. Tran, 433 F.3d 472, 477 (6th Cir. 2006). Whether a joinder of charges in the indictment was appropriate “is determined by the allegations on the face of the indictment.” Thomas v. United States, 849 F.3d 669, 675 (6th Cir. 2017). Joinder of offenses is permitted if the offenses are: (1) “of the same or similar character“; (2) “based on the same act or transaction“; or (3) “connected with or constitute parts of a common scheme or plan.”
There is no doubt that the felon-in-possession charge, the armed robbery charges, and the
Notwithstanding that joinder is proper, any prejudice to Howell would be harmless.
“[T]he danger of prejudice resulting from improper propensity inferences can be reduced significantly,” when, as in this case, the district court issues “proper curative instructions” for the jury to “consider separately . . . the evidence that relates
2.
That leaves Howell‘s contention that the sixteen-month delay in joining Count 5 shows that it was “vindictively added.” Howell admits the issue was not raised before the district court, so our review is under the plain-error standard. United States v. Meda, 812 F.3d 502, 510 (6th Cir. 2015). Howell has not satisfied that standard.
To prevail under plain-error review, Howell must “show (1) error (2) that ‘was obvious or clear,’ (3) that ‘affected defendant‘s substantial rights’ and (4) that ‘affected the fairness, integrity, or public reputation of the judicial proceedings.‘” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (citation omitted));
“[S]o long as the prosecutor has probable cause . . ., the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Wayte v. United States, 470 U.S. 598, 607 (1985) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). Although the Due Process Clause protects an individual from being “punished for exercising a protected statutory or constitutional right,” United States v. Goodwin, 457 U.S. 368, 372 (1982), it is also true that “the Due Process Clause is not offended by all possibilities of increased punishment . . . but only by those that pose a realistic likelihood of ‘vindictiveness.‘” Id. at 384 (quoting Blackledge v. Perry, 417 U.S. 21, 27 (1974)). To that end, a vindictive prosecution challenge requires a defendant to show that: “‘(1) the prosecutor has some stake in deterring the [defendant‘s] exercise of his rights and (2) the prosecutor‘s conduct was somehow unreasonable,’ then the district court may find that there is a ‘reasonable likelihood of vindictiveness’ and may presume an improper vindictive motive.” United States v. LaDeau, 734 F.3d 561, 566 (6th Cir. 2013)