United States v. Patrick H. McGuire

only options: all prison Board two override have received a shorter term under (in impose words, minimum consecutive terms and the old rule other that the Board matrix, according to new sentence or would have struck all judicially-imposed five uphold Although rule). all of those terms. the new mínimums all-or-nothing under although applied Writ, Following rule is a “law” and it was issuance of the the Board retrospectively, required we hold that it does not on will be recompute to Nulph’s re- disadvantage general. eligibility its face defendants in" by applying lease date the matrix- facially It is therefore not violative of the Ex calculation rules in effect at the time of his Post Facto Clause. offense. If again only the Board strikes terms, some of the minimum Nulph comparing all-or-nothing After scheme action, again contests that a determination of Nulph’s effect at the time of offense with apply whether the failure to the all-or-noth- applied hearing, the rule at the we are un- ing specific rule caused Nulph detriment to general- able conclude the new rule is will be based on developed the record that is ly disadvantageous prisoners. It is cer- during the proceedings. new Parole Board that, tainly possible in some cases where Board decides to override some but not all of prisoner’s judicially-imposed minimum IV.

terms, it would have overridden all of the judgment of the district court is re- all-or-nothing terms under an rule. Howev- versed. The ease is remanded for issuance er, equally possible it seems that under such of the Writ. upheld a rule Board would have all of the courts, Oregon

minimum terms. The credit- scenario, ing the latter have held that KEYNUMBERSYSTEM> |O change all-or-nothing from the rule was ame- post liorative and thus not an ex facto law. Williams, course, 780 P.2d at

See 795. Of Oregon

we are not bound courts’ Chatman,

decision. See F.2d at 1535 (“Whether retrospective state statute America, UNITED STATES of imposed ameliorates or worsens conditions Plaintiff-Appellee, predecessor question.”). its is a federal Nevertheless, we reach the same result. We legislative history have reviewed the to which McGUIRE, Patrick H. Defendant- parties have referred us and find it incon- Appellant. Further, party clusive. neither relies No. 93-3290. practice experience under the new rule to all, support position. All in we have no Appeals, United States Court of reason to conclude that the newer rule is Tenth Circuit. facially any more onerous than the all-or- June 1994. Thus, nothing scheme. we cannot conclude disadvantageous the new rule is to de- Dobbert, general. fendants See

at at S.Ct. 2298. light of our decision that

Board must eligibility establish a new release Nulph for

date because of its reliance on statutory, procedure establishing

new his range,

matrix we need not decide whether

the new “one or more” rule was detrimental note, however, applied.

to him as We that in was,

order Nulph to demonstrate that required

would be to show that he would Atty. Becker, Sp. Asst. U.S.

Paul S. (Randall Rathbun, Atty., him on K. U.S. Kansas, City, brief), Kansas District MO, plaintiff-appellee. for Gradert, Public Federal K. Asst. Steven Wichita, KS, Kansas, Defender, District defendant-appellant. for BALDOCK, Judge, Circuit Before McWILLIAMS, Judge, and Circuit Senior SHADUR, Judge.* District Senior McWILLIAMS, Judge. Senior Circuit District sitting in the States juryA United convicted District of Kansas Court abetting aiding and H. McGuire Patrick Dodds Terrence J. Thomas $68,256 by force and intimidation who took employees person presence from the Savings and Loan Capitol Federal Federal”), federally (“Capitol Association Wichita, in Kan- located institution insured 2113(a) §§ sas, violation of 18 U.S.C. (d) impris- 2. McGuire sentenced run years, sentence to for 25 said onment 25-year sen- concurrently previous awith armed bank rob- imposed on him for tence District Court bery the United States District of Wisconsin. Eastern grounds three appeal, counsel On raises (1) court erred the district for reversal: evi- to introduce allowing the offenses,” namely rob- bank dence of “other * Shadur, designation. District I. Senior Honorable Milton Illinois, sitting by Judge, District of Northern than the one with although beries other which that he was involved with Dodds in charged; McGuire was the district court robbery Milwaukee, a bank Wisconsin, refusing give erred McGuire’s tendered December wherein he and Dodds were regarding instruction how the should apprehended, he did not participate weigh testimony the of an and in robbery other bank with either Dodds or giving accomplices an instruction on which Earlywine. unclear; was and the evidence adduced at testify, McGuire did not though counsel did legally support trial insufficient to the call as persons witnesses three who resided error, Finding verdict. no reversible we af- Rockford, Illinois, in two of whom were ac- firm. quainted Earlywine, with being one ac- government’s theory The of the case was quainted Earlywine with both and Dodds. McGuire, Dodds, Earlywine that and all resi- gist of Early- their was that Rockford, Illinois, dents of drove from Rock- wine and reputation Dodds had a in and Wichita, Kansas, ford to and on November around being Rockford as dishonest and not by took force approxi- and violence persons. credible $68,256 mately employed from two tellers at Capitol Specifically, Federal. it gov- was the Other Crimes theory planned ernment’s that McGuire the trial, Prior to filed a motion in robbery, pursuant and thereto a van rented effect, limine requesting, pre- in an order in Rockford and then drove the three to cluding government the introducing from at Wichita, they spent days where several “cas- any trial crimes committed ing” possible victim banks. McGuire other than robbery, the Wichita robbery itself, gov- As for the it was the charge which was pending against the then Dodds, theory ernment’s armed with a Specifically, him. requested counsel that the unarmed, handgun, Earlywine, and entered government precluded be introducing Capitol the offices of Federal around the evidence of allegedly other bank robberies 8, 1989, noon hour on November and took McGuire, committed “super- robberies of $68,256 approximately employees from two markets, groceries, types and various other Capitol Federal force and violence. Fur- by McGuire, of stores” any committed thermore, government the asserted that al- Organized or reference to Crime though McGuire did not himself enter the or the Mafia. Federal, Capitol offices of driving he was pretrial hearing, In a the district court vicinity around during the rented van part, granted denied the motion in it in robbery acting as a look-out and then part.' Apparently no was taken at Earlywine rendezvoused with Dodds and in a hearing, though colloquy there was be- nearby shopping parking mall lot and there- event, tween court In and counsel. Salina, after drove the van Northward to district court held that evidence of other Kansas, Missouri, City, and then to Kansas bank robberies was admissible under Fed. finally back home to Rockford. 404(b), though might preju- R.Evid. it be It theory was McGuire’s of the case that dicial, probative its outweighed prej- value government’s entirely case rested on the udicial effect and therefore should not be Earlywine, of Dodds and both ac- excluded under Fed.R.Evid. 403. At complices, and that neither should be be- time, same the district court held that the lieved agree- since each had entered into an government permitted would not be to intro- testify ment with the against supermarket duce evidence of robberies and concerning robbery the like, nor could it introduce evidence of a exchange promised for which each had been mob connection. immunity prosecution from further robberies, indicated, various expected Earlywine each also As at trial Dodds and “leniency” some form of government, connection with testified and each indi- serving. the sentence each testifying pursuant was then As will cated he was to an later, be discussed position agreement government whereby was McGuire’s with the Dodds, advice February, with the testimony concerning exchange for his talking to lawyer, began assistance his rob- in the Wichita participation McGuire’s than the one other FBI about robberies consider- favorable bery, expected some he in which he was convicted each for which with the sentence in connection ation another, three, had been in- way would not in one also that he serving, and was then robbery. the Wichita Both Such included any other offense. volved. prosecuted for serving his sentence time at the was that McGuire Dodds testified Dodds and Oxford, Wisconsin. robbery, institution and that a federal planned the Wichita as a look-out driving around thus furnished upon information Based the offices entered when the two them Dodds, Earlywine was arrested FBI gunpoint money took at Federal and Capitol 16,1992, Rockford, and was March Illinois on two Federal. The testi- belonging Capitol to robbery charged with the bank subsequently shortly very after they met fied that McGuire Milwaukee, 1989, in occurring August, in lot, nearby parking and that robbery in a the charge, as pled guilty to He Wisconsin. van, floor of the lying with them robbery charges, and as to other bank well freeway got interstate and on the McGuire years imprisonment. to 32 sentenced was by driving escape northward their effected thereafter, Earlywine began Shortly also “co- to from Wichita Salina. FBI, ultimately, and as with the operating” of other bank rob- indicated, Earlywine Dodds testi- As concerns evidence and both Early- beries, Dodds and at McGuire’s government witnesses fied as (1) May, in following: wine established in trial Wichita. 1989, committed an Earlywine McGuire 404(b) provides that evidence Fed.R.Evid. Decatur, in robbery small bank armed of a prove to crimes is not admissible of other (2) 1989, Earlywine Illinois; July, in in order to of a defendant show character Urbana, Illinois; in McGuire robbed bank conformity That same in therewith. action (3) 1989, Earlywine and McGuire August, in state, however, that evidence goes on to rule Wisconsin, Milwaukee, in in a bank robbed prove “mo- to of other crimes admissible they their abandoned the course which intent, plan, tive, preparation, opportunity, Dodds, responding to get-away vehicle and mistake or knowledge, identity, or absence of Rockford, call, telephone drove their accident_” 404(b). Fed.R.Evid. Milwaukee, Illinois, drove them and then to indicated, government intro- As above 1989, Rockford; (4) on November to back other of seven bank robberies duced evidence robbery Capi- participated all three in robbery in for which bank than the (5) Wichita; January, in in tol Federal eight then on trial. Of McGuire was robbery in a bank in participated all three was, robberies, according Early- to McGuire (6) Nebraska; Early- Omaha, April, in Dodds, eight. in all All involved wine and robbery a bank wine and McGuire committed robberies, i.e., in involved two three were (7) Columbus, Ohio; September, Earlywine and in Wichita and Omaha. ones a bank Earlywine and committed Dodds, McGuire, not were involved in but Oklahoma; City, robbery in Oklahoma i.e., robberies, occurring in ones five De- 13, 1990, Dodds and on December Milwaukee, Urbana, Illinois; catur, Illinois; Milwaukee, Wis- McGuire robbed bank Columbus, Ohio; Wisconsin; and Oklahoma consin. indicated, Oklahoma, although, as City, Milwaukee, robbery in Wis- In the bank Illinois, Rockford, to Dodds did drive from 13, 1990, consin, Dodds and on December Milwaukee, Wisconsin, Early- brought immediately apprehended af- were Dodds to Rockford. and McGuire back wine Each they the bank. was ter had robbed McGuire, Earlywine, were in- but not robbery pleas and on charged with that bank i.e., robbery, the last one in in one volved impris- to guilty, sentenced McGuire was they caught. were Milwaukee when was twenty-five years and Dodds onment for sought to introduce evi- years imprisonment for seven sentenced to other bank robberies to of the seven dence months. and nine “identity” establish McGuire’s as in- one an highway. interstate The men woul robbery, volved the Wichita and also to wait-until there were no customers in the bank, show the existence of a common scheme or and then Earlywine, Dodds and plan eight in all bank robberies. It would drive the used car to the bank and government’s position was the eight that all rob it while waited nearby in the similar, identical, completely had a if not van. robbery When the completed, operandi each, modus McGuire did the the three men would pre-deter- meet at a advance planning. The common scheme department mined lot, parking store where plan every was that instance Dodds get would into the looked to medium-sized Midwestern cities van and leave the used ear. Defendant order to find a small branch bank town, with few would drive out of and the other two employees. Also, looking McGuire was for a would lie down between the they seats so easy bank that had to access interstate would not by any be seen trooper state order get-away. facilitate they McGuire fur- happened pass. ther desired that the small bank easy agree We with the district analysis court’s access to an interstate be located near Certainly matter. eight all robberies parking shopping area of a center in order to many had common characteristics which carry out the switching” “vehicle once the would tend show that the defendant was robbery was over. It government’s is the involved in the robbery and that the position that all of the displayed, robberies in latter robbery part was but a larger of a

varying degrees, “signature quali- so-called common plan. scheme or The “other crime” ties.” must be to the charged, similar crime it but need not be “identical.” United States v. The district court denied McGuire’s Gutierrez, (10th 763, 696 F.2d Cir.1982), 755 request to government limit the to evidence denied, cert. 909, 1884, 461 U.S. 103 S.Ct. 76 of the Wichita robbery gov allowed the (1983). L.Ed.2d 813 We are not inclined to ernment to introduce evidence of the seven disturb district ruling court’s that such other bank robberies. In denying post- a 404(b). evidence is admissible under Rule In acquittal McGuire, trial motion for made regard, this jury was instructed that judge the district explained his reason for evidence of other permitted robberies was admitting evidence other bank robberies purpose limited proving common as follows: plan or Porter, scheme. See United States v. The at evidence issue this case is (10th Cir.), denied, 881 F.2d 878 cert. 493 testimony that the defendant was involved 944, 348, U.S. 110 S.Ct. 107 L.Ed.2d 336 robberies, several other bank including (1989); Record, United States v. 873 F.2d Milwaukee, robbery a Wisconsin (10th Cir.1989). 1363 which defendant was convicted. The court admitted the ground evidence on the Court, In this argues, as he pattern showed a plan. apparently court, common did in the district that even accomplice-witnesses, Terrence may Dodds relevant pro be excluded if its Earlywine, and Thomas testified that the bative substantially is outweighed by value robberies, like the Wichita robbery, danger were prejudice unfair under Fed. according specific executed plan to a devel- R.Evid. 403. A decision a district court oped by the defendant. The men three whether to unfairly exclude evidence as prej Rockford, would travel in a van from Illi- udicial under Rule 403 is “one for which the nois, to a city. medium-sized judge, Midwest trial familiarity because of his with the They stay day town, would or two in array full case, particu of evidence is using the time to scout larly locations for the Keys, suited.” United States v. 899 robbery purchase inexpensive (10th Cir.) an 983, used F.2d (quoting 987 Rigby v. ear. The always Co., banks chosen (10th had 288, similar Beech 548 F.2d 293 Aircraft they small, Cir.1977)), characteristics: were denied, 858, few cert. 498 111 U.S. employees traffic, 160, and little (1990) (citations customer close S.Ct. 112 L.Ed.2d 125 area, shopping omitted). to a easy and with access to suggests that evidence of 462 seldom, ever, if be believed. complice should highly prejudi- was robberies

the seven other may jury convict A is not the law. Such It well value. probative little cial and of on the uncorrob view, in a criminal ease but, in our prejudicial, quite have been although accomplice, testimony of an orated We great probative value. possessed it also jury should be in circumstance such rob- of other bank the evidence believe in which such the manner as to structed meets the by McGuire committed beries considered. United testimony should be v. in Huddleston four-part test enunciated (10th 154, Behrens, 689 F.2d v. States States, 108 S.Ct. 485 U.S. United denied, Cir.), S.Ct. (1988). cert. L.Ed.2d 771 (1982); United States 74 L.Ed.2d 934 Cir.1980). (10th Accomplice Hill, re Instruction 627 F.2d 1052 jury court instructed The district case, there was testi the instant In between agreement that an indicated, accomplices. As mony from two whereby former tes and the incarcerated, implicated Dodds, while trial with in a criminal against another tifies robberies Earlywine various would receive he promise that return Early- ever arrested. was before is not treatment” some form “favorable spoken to had not that he wine testified instruction, the dis In the same unlawful. mid-1990, appar was so there Dodds since state as follows: went on to trict court between opportunity for collusion ently no Nevertheless, agreements are while Earlywine. Yet their Dodds courts approved and sanctioned similar, thereby each strikingly at trial was testimony of a jury listening to society, a sense, tending, in to corroborate other. accomplice in a or a claimed co-defendant verdict, event, crime, consider and should entitled to participate in the did convinced that McGuire deter- to carefully weigh such supports robbery, the record credibility in the believability or mine its determination. such any special the benefits light of of whether Judgment affirmed. may have cooperating witness given to a falsely. testify to such witness induced SHADUR, Judge, District Senior that the instruction asserts dissenting. disagree. “go enough.” We given not far did because) (or I Although perhaps differ instruct the it would If it went much further I panel’s opinion, aspect the with one of testimony of jury disregard completely the to my concurrence stress at the outset should Earlywine. Dodds or accomplice such as upholding of the its other facets —the two province the of course invade would of Such 404(b) (“Rule”) rul- trial court’s Fed.R.Evid. credibility of all jury assessing the the of that the évidence ing the determination witnesses, The in including accomplices. support the amply sufficient to at trial was by this matter counsel on tendered structions very sense it is those jury verdict. a not-re argumentative and were were rather they totally dependent as factors —as case. on law of the A ally instructions the testimony of are on the McGuire’s conviction “any specific to not entitled accomplices Dodds —that United States wording of instructions.” jury the nature of make the troublesome (10th Cir.1989), Bryant, F.2d witnesses so instruction about those critical. 3220, 110 denied, 939, 110 496 U.S. S.Ct. cert. (1990). given The instruction L.Ed.2d 667 404(b) one of the with most Rule deals view, was, adequate. in our evidence, law of most sensitive areas the cases. All of us particularly in criminal Sufficiency the Evidence justice system (judges and law- the criminal alike) recognize the need to minimize yers argues that the evidence is jurors might a convict possibility that jury’s verdict. support to insufficient he or she has of what premised defendant because apparently contention This is. or than on what he past, in the testimony of an ac- done rather assumption that charged she is with now. That to lighter same need for a probation sentence or from simply convictions avoid because defendant is sentence. woman, by a bad man or a bad rather than plea negotiation Such or is an bargaining

proving defendant’s commission of approved legitimate practice in law offense, 404(b)’s charged is what drives Rule judicial enforcement and proceedings for prohibition against admissibility proof purposes the dual of detecting or proving prior merely as to acts crimes as evidence participation of others in a crime than the propensity of defendant’s to commit the cur- testifying person, and enhancing oper- rent crime. ation of the judicial law enforcement and processes. In this judge properly instance the trial Nevertheless, while agreements are analyzed proffered evidence from approved and sanctioned courts and accomplices McGuire’s two in terms of the society, a listening to of a non-propensity purposes that permitted are co-defendant or a claimed accomplice in a 404(b), Rule judge’s as well as the having crime, is entitled to consider and should engaged appropriate balancing in the called carefully weigh such testimony to deter- Rule 403. With evidence before believability mine its or credibility in the jurors, it follows as a matter of course light special whether benefits they rationally could have found given to cooperating witness have beyond guilty doubt of reasonable induced such testify witness to falsely. having committed the current bank rob- Because that departs instruction bery so standard dictated material- the seminal —the ly and, submit, I does so to Virginia, decision McGuire’s seri- in Jackson v. — ous clearly-established detriment —from the 2791-92, 99 S.Ct. 61 L.Ed.2d 560 (and, law of this Circuit it is noting, worth progeny numerous in this Cir- well), the law of other Circuits as I am cuit and elsewhere. constrained dissent. 404(b) But fact that such Rule evi- For some four decades this Court has dence—indeed all of the leading plainly juries demanded that must be warned McGuire’s conviction—emanated from the unequivocally about skepticism uncorroborated two ac- those which uncorroborated complices important makes all the more must nearly Thus quarter viewed. cen- jury that the properly have been cautioned tury ago States Birmingham, United v. 447 about the need to such testimony view (10th 1313, Cir.1971) F.2d put 1317 the mat- through special lens. Here is the full succinctly, citing ter to decisions this judge gave instruction that the trial in that Court from 1955 and 1969: respect: Circuit, The rule is established in this how- Oftentimes, in cases where more than one ever, that court jury must instruct the person is participated claimed to have with testimony that accomplices must be accomplices in activity, criminal for which scrutinized, carefully weighed great with charges criminal may have or been be care, and received with caution. brought, accomplices, such claimed for the My purpose research avoiding departure has disclosed no lessening potential from principle, that which charges, may has been and participation admit their confirmed guilt reconfirmed offenses, in criminal on number of occasions. negotiate This spoke Court to the government great- with issue at somewhat about giving testimo- length er ny Shepherd, United v. concerning States 739 participation of others in (10th Cir.1984): F.2d 512-13 such offenses or activity, other criminal exchange type for some of favorable treat- This Court has affirmed convictions based ment for himself prose- upon accomplice uncorroborated testimo cuting ny. Webb, officials. Such favorable E.g., treatment States United v. 466 F.2d forms, may many (10th take Cir.1972), denied, such as dismissal of 190 cert. prosecution, all substituting (1973); a lesser 94 S.Ct. 38 L.Ed.2d 250 charge, recommendation to a court Birmingham, and/or United v. States F.2d 447

464 keep in mind that such testi- Cir.1971). However, (10th You should we have 1313 always with caution mony to be received is in such cases sufficiently concerned

been great care. weighed with requiring plain found error have that we give a failed to if the trial court any reversal convict You never should testimony ac- jury that testimony instruction of such a unsupported upon the scrutinized, carefully must be complices you believe that unless witness care and received with weighed great doubt. beyond a reasonable Hill, 627 F.2d v. United States caution. have com- all of these instructions What (10th Cir.1980); v. Ow- United States 1052 special emphasis on the burden mon is an Cir.1972). (10th ens, 460 F.2d 268 accomplice evi- uncorroborated such Shepherd have Birmingham and And both bears, by any emphasis undiluted dence alive and consistently confirmed to be been justice that the criminal the benefits about recently as as living in this Circuit well By plea bargains. may derive from system Brown, (United 995 F.2d v. year States last in- contrast, jury in this case was first (10th Cir.1993); United 1503 n. legitimacy of the value and about structed (10th Chatman, 1510, 1515 F.2d v. States assisting testimony in law en- Miller, F.2d Cir.1993); States United really (something that officials forcement Cir.1993)). (10th 1462, 1465 credibility of the ac- nothing says about witnesses, alone this and should be the Tenth Circuit which is complice Nor is concern) example, given in the Circuit it was respect. jury’s For Seventh sole before trials) (where substantially over criminal version of preside I watered-down this cautionary the Committee instruction that prepared strongly instruction con- Jury upon again Instructions and properly insisted Federal Criminal Court has iden- juries delivers the dilution sistently delivered In this case I believe that the again. 3.22): (Instruction message instruction presented by tical the trial court’s balancing fail fair Rule 403-like would have heard You _ test, message given that was to the in- stated that he was who jury by the most credible source —the alleged in the commission volved preju- potential judge one which the You charged against the defendant. crime —is substantially out- dice to the defendant you weight as may give his message. proper cautionary weighed the deserves, keeping in it mind feel great caution and must considered with be recognize I of course that McGuire Now care. he guilty of the crime with which well the caveat to the máy In the Fifth Circuit an charged, he well deserve Judges by the District Association prescribed properly if convict- prison sentence extended (Instruction 1.15): strongly put even more strength of our of that crime. But the ed assuring protections system lies alleged accomplice, deserving among the least those who be provides of one who and the worthy us, just who are most not to those against a as an inform- protections. least need those immunity punish- and therefore pay or for er for deep-dyed a that as advantage It must be remembered personal for or vindica- ment or be, portrayed to those tion, always villain as McGuire must be examined admittedly equally him testifying against are by greater care and weighed they had a direct interest ordinary deep-dyed wit- caution than the —and having receiving for their testified You, jury, wheth- benefits must decide nesses. Surely jury that hears against affect- McGuire. the witness’s has been er given circumstances, testimony ought to a clear and by their by any those or ed understanding of the standard that accurate interest in the outcome of the the witness’s (and case, applies to such evidence without against the defen- prejudice or jury first understanding being tainted dant, witness the benefits that the irrelevancy: a basic financially being told about either or as a re- has received prosecutors). prosecution. usefulness of being immunized from sult of judges It is of course true that trial are

given plenty of room the exercise of their I suggest rep-

sound discretion. But that it

resents an abuse of that discretion for judge depart dramatically

trial so from the

roadmap clearly that has been marked out

the uniform decisions in this Circuit —and to

do so in an area where that error cannot be Accordingly

characterized as harmless. I respectfully

must dissent. America,

UNITED STATES of

Plaintiff-Appellee, RICHARDS,

Pauline also known as Janie

Nard, Defendant-Appellant.

No. 93-6332. Appeals,

United States Court of

Tenth Circuit.

June 1994.

Case Details

Case Name: United States v. Patrick H. McGuire

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jun 3, 1994

Citation: 27 F.3d 457

Docket Number: 93-3290

Court Abbreviation: 10th Cir.