UNITED STATES of America, Plaintiff-Appellee, v. Steven Michael PERALES, Defendant-Appellant.
No. 12-3982.
United States Court of Appeals, Sixth Circuit.
Aug. 27, 2013.
728 F.3d 502
IV.
We AFFIRM.
BEFORE: KEITH, WHITE, and STRANCH, Circuit Judges.
HELENE N. WHITE, Circuit Judge.
Defendant-Appellant Steven Michael Perales (Perales) was charged with aiding and abetting in two bank robberies and one attempted bank robbery. Following a jury trial, he was convicted on all three counts and sentenced to 130 months of imprisonment. On appeal, Perales argues that: (1) the evidence does not support his convictions on two counts and is against the weight of the evidence, entitling him to a new trial; (2) the district court erred in admitting testimony regarding an out-of-court identification; and (3) the district court
I.
This case arises out of Perales‘s role in a series of robberies committed by his girlfriend, Heather Beasley (Beasley). On October 3, 2011, Beasley entered Apple Creek Banking Company in Wooster, Ohio and handed the bank teller a note that read “5000 in large bills, no dye packs.” The teller gave Beasley $2500. Beasley put the money in her purse and fled the scene.
A week later, at 9:03 a.m. on October 11, 2011, Beasley entered the Charter One Bank in Toledo, Ohio and passed the teller a note stating, “5,000 large bills No Die [sic] Packs!!!!” However, when the assistant manager approached, Beasley fled the bank on foot without any money. Thirty-six minutes later, at 9:39 a.m., Beasley entered the Genoa Bank in Millbury, Ohio, located eight miles from the Charter One Bank. Beasley passed the teller the same hold-up note and told the teller that she had a gun. The teller gave Beasley $3350; Beasley put it in her purse and fled. On the road outside the bank, a vehicle picked Beasley up and sped away. The Genoa Bank tellers who witnessed this testified that the getaway vehicle was a silver or white car.
Based on a radio dispatch describing the getaway car, police stopped Perales, who was driving a silver Dodge Neon, and found Beasley hiding in the back seat. A search of the car yielded the clothes Beasley had worn during the Charter One and Genoa Bank robberies (as shown on the bank videotapes), the money stolen from Genoa Bank, and the hold-up note. In addition, Perales was carrying a key to a
Beasley pleaded guilty of two bank robberies and one attempted bank robbery. See United States v. Beasley, 3:11-cr-564 (N.D. Ohio, April 5, 2012). Perales pleaded not guilty to three counts of aiding and abetting Beasley in the offenses in violation of
II.
A. Denial of Relief under Rules 29 and 33
Perales argues that as to count one, the Apple Creek robbery, and count two, the Charter One attempted robbery, the Government failed to introduce any evidence that he actively participated in or engaged in any affirmative act in connection with the crimes, and that he is entitled to a new trial. We review de novo a district court‘s denial of a Rule 29 motion for judgment of acquittal based on the insufficiency of the evidence, United States v. Humphrey, 279 F.3d 372, 378 (6th Cir.2002), construing the evidence in the light most favorable to the Government and then determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Grubbs, 506 F.3d 434, 438 (6th Cir.2007). We do not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute our judgment for that of the jury. United States v. Amawi, 695 F.3d 457, 491 (6th Cir.2012) (internal quotation marks omitted). “Even circumstantial evidence may sustain a conviction so long as the totality of the evidence” establishes the defendant‘s guilt beyond a reasonable doubt. United States v. Walls, 293 F.3d 959, 967 (6th Cir.2002).
“Aiding and abetting requires that a defendant in some sort associate himself with the venture, that he participate[] in it as something he wishes to bring about, and that he seek by his action to make it succeed.” United States v. Lowery, 60 F.3d 1199, 1202 (6th Cir.1995) (citation and internal quotation marks omitted). Perales does not contest that Beasley committed the crimes of bank robbery and attempted bank robbery; he argues only that he was not shown to have aided and abetted her. To prove aiding and abetting, the government had to establish: (1) an act by Perales that contributed to the commission of the crime; and (2) Perales‘s intent to aid
The district court properly denied relief under Rules 29 and 33 of the Federal Rules of Criminal Procedure. Perales‘s conviction for his involvement in the attempted robbery is adequately supported by the evidence. The Charter One attempted robbery and the Genoa Bank robbery occurred within forty minutes of each other at banks located eight miles apart. Thus, it is likely that Beasley traveled between the two sites in a vehicle. It is undisputed that Perales drove the getaway car for the Genoa Bank robbery, transporting Beasley away from the scene of the crime he was stopped ten minutes later with Beasley, the stolen money, and hold-up note in the car. Viewing the evidence in the light most favorable to the Government, these facts could support the inference that Beasley was transported by Perales from the attempted Charter One Bank robbery to the Genoa Bank robbery eight miles away. Although the evidence in the case is circumstantial and no eyewitness saw Perales pick Beasley up from Charter One Bank, “this [c]ourt has never held that eyewitness evidence is needed to secure a conviction.” United States v. Parks, 278 Fed.Appx. 527, 536 (6th Cir. 2008); see United States v. Davis, 306 F.3d 398, 409 (6th Cir.2002).
Perales‘s conviction for aiding and abetting the Apple Creek robbery is a closer question; however, we find there is sufficient evidence to uphold Perales‘s conviction. First, the distance Beasley traveled after the robbery corroborates the Government‘s claim that she had a driver assisting her either immediately following the robbery or shortly thereafter. Two and a half hours after the robbery, police found the clothes that Beasley wore during the crime on the side of a road approximately six miles from the Apple Creek Bank. In addition, the day after the robbery Beasley checked into the Crown Inn Motel a hundred miles away. More significant, there is circumstantial evidence that Perales was with Beasley before and after the robbery. Before the robbery, Beasley was living with Perales in his car in the driveway of a home shared by Kristi Peyatt, Richard Voiles, and Voiles‘s family. The evidence indicates that, after the robbery, Perales stayed with Beasley at the Crown Inn Motel: Beasley paid a double-occupancy rate; the motel manager recorded a description of Perales‘s car and license plate number on the room registration form for the final two nights; and a Crown Inn housekeeping and maintenance employee, Brian Osbourne, remembered that a male, matching Perales‘s description, and female stayed at the motel during this period.
The fact that Perales served as Beasley‘s getaway driver in two nearly-identical incidents further supports the conclusion that Perales served the same role during the Apple Creek robbery. The evidence indicates that Perales and Beasley had a pattern whereby Beasley robbed the banks using a note, Perales drove the getaway car, and Beasley changed and discarded her clothes after the crime. A rational trier of fact could logically conclude that this pattern was likewise followed during the Apple Creek robbery and thus that Perales aided and abetted Beasley by driving her either to or from the robbery. See United States v. Cobb, 397 Fed.Appx. 128, 135-36 (6th Cir.2010) (upholding bank robbery conviction where there was strong evidence that defendant had committed another robbery with a similar modus operandi).
Finally, there is evidence that Perales not only assisted in the robbery, but also advised Beasley on how to commit the
Accordingly, Perales has not shown that there was insufficient evidence to support his convictions on counts one and two. Similarly, the direct and circumstantial evidence supported Perales‘s convictions; consequently, the district court did not abuse its discretion by denying Perales a new trial.
B. Out-of-Court Identification
Perales next challenges the district court‘s decision to admit FBI Agent Kocher‘s testimony regarding Crown Inn Motel employee Brian Osbourne‘s out-of-court identification of Perales as the person staying at the motel with Beasley between robberies. When shown a photograph of Perales the week before trial, Osbourne identified him as the man staying at the Crown Inn. At trial, Osbourne testified that he saw a male at the Crown Inn matching Perales‘s description. However, Osbourne also testified that the man he saw at the motel was not in the courtroom. Osbourne confirmed, however, that when he previously was shown a photograph, he had identified that person as the man who had been staying at the motel. Later in the trial, the court permitted Agent Kocher to testify that he had shown Osbourne a photograph of Perales a week prior to trial. This court reviews a trial court‘s evidentiary rulings for an abuse of discretion. United States v. White, 492 F.3d 380, 398 (6th Cir.2007).
Perales argues that “Agent Kocher provided testimony that Mr. Osbourne previously identified Mr. Perales in a photo array. This is classic hearsay as the government offered the out-of-court statement of Mr. Osbourne for the truth of the matter asserted.” Appellant‘s Br. at 38 (citing
Under
So long as the requirements of
Rule 801(d)(1)(C) are met, government agents may testify about a prior statement of identification made by a witness who identified the defendant in a lineup or photospread, but forgets, or changes, his testimony at trial.The better course, obviously, is to provide the photo array or other evidence of the prior identification immediately, while the declarant is still on the witness stand. But events at trial sometimes make the better course impractical. In such circumstances, a meaningful opportunity to cross-examine a declarant regarding his prior identification is enough to satisfy the requirements of Rule 801, even if the defendant chooses not to use the opportunity.
United States v. Foster, 652 F.3d 776, 788-89 (7th Cir.2011) (internal citations and quotation marks omitted); see United States v. Brink, 39 F.3d 419, 426 (3d Cir.1994) (finding congressional debate over Rule 801 suggests that “Congress was aware that third parties would testify to the witness‘s prior statements“). Osbourne testified at Perales‘s trial and defense counsel had the opportunity to cross-examine him. There is no indication in the record that he was unavailable for reexamination after Agent Kocher testified. See United States v. Elemy, 656 F.2d 507, 508 (9th Cir.1981) (holding that FBI agent‘s testimony regarding witness‘s prior identification was admissible where nothing in the record suggested that the declarant was unavailable for reexamination after the agent‘s testimony); Foster, 652 F.3d at 789. Accordingly, Agent Kocher‘s testimony regarding Osbourne‘s identification was not hearsay, and the court did not abuse its discretion in admitting the testimony.
C. Sentencing Enhancement for Threat of Death
Finally, Perales argues that the district court erred in imposing a two-level sentencing enhancement under
As the guidelines notes explain, if two defendants jointly agreed to rob a bank, and one defendant assaults a victim during the robbery, the co-defendant is accountable for the assault “even if the second defendant had not agreed to the assault and had cautioned the first defendant to be careful not to hurt anyone [] because the assaultive conduct was in furtherance of the jointly undertaken criminal activity (the robbery) and was reasonably foreseeable in connection with that criminal activity (given the nature of the offense).”
Accordingly, the district court did not abuse its discretion by imposing the two-level sentencing enhancement under
III.
Based on the foregoing reasoning, we AFFIRM Perales‘s convictions and sentence.
HELENE N. WHITE
UNITED STATES CIRCUIT JUDGE