United States v. Quinton Bannister , 285 F. App'x 621 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 16, 2008
No. 06-13048 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-80063-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
QUINTON BANNISTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 16, 2008)
Before TJOFLAT and BLACK, Circuit Judges, and RESTANI,* Judge.
PER CURIAM:
*
Honorable Jane A. Restani, United States Court of International Trade Chief Judge,
sitting by designation.
Quinton Bannister was convicted by a jury of multiple counts arising out of
three armed bank robberies, which occurred between April and October 2004
along the eastern coast of Florida.1 Bannister was sentenced to 946 months’
imprisonment. On appeal, he challenges (1) the sufficiency of the evidence on all
counts, (2) the district court’s refusal to sever counts, (3) several evidentiary
admissions, (4) the jury instructions used at his trial, and (5) the calculation and
reasonableness of his sentence. With the benefit of briefing, oral argument, and a
careful review of the record, we affirm Bannister’s convictions and sentence.
I. SUFFICIENCY OF THE EVIDENCE
This Court reviews the sufficiency of evidence de novo. United States v.
Morris, 20 F.3d 1111, 1114 (11th Cir. 1994). “We examine the evidence in the
light most favorable to the government and must affirm a conviction if any
reasonable construction of the evidence would permit the jury to find a defendant
guilty beyond a reasonable doubt.” Id. “[A] guilty verdict will not be disturbed on
appeal unless no reasonable trier of fact could have found guilt beyond a
reasonable doubt on the evidence before it.” United States v. Baker, 432 F.3d
1Specifically, Bannister was convicted of one count of bank robbery, in violation of 18
U.S.C. § 2113(a) and (d) (Count 2); three counts of conspiracy to commit bank robbery, in
violation of 18 U.S.C. § 371 (Counts 1, 5 & 8); three counts of conspiracy to commit a Hobbs
Act robbery, in violation of 18 U.S.C. § 1951(a) (Counts 3, 6 & 9); and three counts of using or
carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) (Counts 4,
7 & 10).
2
1189, 1232 (11th Cir. 2005).
Bannister argues there was insufficient evidence to convict him on all
counts because (A) co-conspirator testimony was not reliable enough to convict
him, (B) insufficient evidence was presented to prove the existence of, and
Bannister’s participation in, a conspiracy, and (C) errors of fact and law were
made in holding him vicariously liable for the use of firearms by his co-
conspirators.
A. Co-conspirator Testimony
It is well established that credibility determinations are the exclusive
province of the jury. United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir.
1997). And this Circuit has long upheld the propriety of the government’s
practice of trading sentencing recommendations for the cooperation of witnesses.
United States v. Lowery, 166 F.3d 1119, 1124 (11th Cir. 1999). Evidence is not
legally insufficient merely because it comes from the testimony of “an array of
scoundrels, liars and brigands.” United States v. Hewitt, 663 F.2d 1381, 1385
(11th Cir. 1981) (citations omitted). Even the uncorroborated testimony of a
single accomplice may support a conviction if it can reasonably be believed.
3
United States v. Sabin, 526 F.2d 857, 859 (5th Cir. 1976).2
In light of the above cited authorities, we find unpersuasive Bannister’s
argument that the six accomplices that testified against him were not reliable
enough to support the convictions. Bannister had the opportunity to cross
examine every witness who testified against him; their flaws and motivations were
made plain to the jury. The district court also cautioned the jury that “a witness
who hopes to gain more favorable treatment may have a reason to make a false
statement because the witness wants to strike a good bargain with the
Government.” On appeal, Bannister does not point to any specific witness
testimony that was factually inconsistent or flawed in a way that it could not
reasonably be believed by the jury.
In the case of the First National Bank robbery, at least three accomplices
testified to Bannister’s involvement; furthermore, Bannister’s DNA was found on
a pillowcase used by the SunTrust robbers, and his fingerprints were found inside
a safe containing bait bills from the First National robbery. In the case of the
Colonial Bank robbery, the testimony of Lotod Newby supported Bannister’s
conviction. And finally, the Harbor Federal Savings conviction was supported by
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
close of business on September 30, 1981.
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both the testimony of Michael Lewis and the bait bills found in Bannister’s
possession on the day of the robbery. The jury was entitled to believe the
accomplice testimony presented at trail, and that testimony indicated Bannister
participated in each crime for which he was convicted.
B. Conspiracy Charges
Bannister also claims there is insufficient evidence to show he agreed to
participate in conspiracies in violation of 18 U.S.C. §§ 371 and 1951(a).
However, “[t]he existence of an agreement may be proven by circumstantial
evidence, including ‘inferences from the conduct of the alleged participants or
from circumstantial evidence of a scheme.’” United States v. Silvestri, 409 F.3d
1311, 1328 (11th Cir. 2005) (quoting United States v. Tamargo, 672 F.2d 887, 889
(11th Cir. 1982)). Given the coordinated nature of the robberies—multi-member
teams of masked, armed men robbing banks—evidence of Quinton Bannister’s
active participation in each of those robberies is enough to infer both the existence
of a conspiracy and an agreement to participate. In each case, testimony places
Bannister at the site of the robbery. At First National, Bannister was identified
standing in the bank with an assault rifle. At Colonial Bank and Harbor Federal
Savings, the evidence showed Bannister played a leadership role in planning the
robberies and in each case drove the nearby getaway car. Overall, the accomplice
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testimony paints a picture of Bannister being deeply involved in each of the
conspiracies for which he was convicted.
C. Firearm Convictions
Bannister argues the evidence does not support a conviction under 18
U.S.C. § 924(c)(1)(A) for using or carrying a firearm during the commission of a
violent crime. As a matter of law, Bannister argues he could not be held
vicariously liable for the acts of his co-conspirators. Factually, he argues there is
no evidence that he used or carried a firearm. On this basis he challenges Counts
4, 7 and 10 of the indictment. Under 18 U.S.C. § 924(c), “it is unlawful for ‘any
person who, during and in relation to any crime of violence . . . for which the
person may be prosecuted in a court of the United States’ to use or carry a firearm
or for any person ‘in furtherance of any such crime,’ to possess a firearm.” United
States v. Diaz, 248 F.3d 1065, 1099 (11th Cir. 2001) (quoting 18 U.S.C. § 924).
Bannister’s legal argument—that he cannot be held vicariously liable for his
co-conspirators’ acts—is of little consequence to his firearm conviction for the
First National Bank robbery (Count 4). Jon Michael Etheredge identified
Bannister carrying an assault rifle in a security photo taken during the First
National robbery. For this reason, sufficient evidence exists to support a
conviction for Bannister’s use of a firearm during the commission of the robbery.
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As to the other bank robberies, Bannister’s legal argument is foreclosed by
this Circuit’s precedent. It has long been recognized that “a co-conspirator can be
punished for a substantive offense committed by one of his co-conspirators so
long as the offense is reasonably foreseeable and is committed in furtherance of
the conspiracy.” United States v. Caporale, 806 F.2d 1487, 1508 (11th Cir. 1986)
(citing Pinkerton v. United States, 66 S. Ct. 1180, 1184 (1946)). This Circuit has
extended so-called Pinkerton liability to § 924(c) offenses: “[C]riminal
defendants remain liable for the reasonably foreseeable actions of their
coconspirators—including the using or carrying of a firearm during the
commission of a crime of violence.” Diaz, 248 F.3d at 1099; see also United
States v. Bell, 137 F.3d 1274, 1275 (11th Cir. 1998) (holding co-conspirator
liability for a § 924(c) offense may be established under Pinkerton).
As to the Colonial Bank robbery (Count 7), sufficient evidence exists to
conclude Quinton Bannister planned the armed robbery of the bank with his
brother Reginald. According to Lotod Newby, he drove Quinton and Reginald up
I-95 for the purpose of selecting a target bank to rob. Furthermore, Newby
testified that on the day of the robbery he and other co-conspirators met in the
back of a shopping plaza nearby the bank and retrieved guns from a car Quinton
Bannister was driving. Based on this evidence, it was reasonably foreseeable to
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Bannister that guns would be used in the robbery; therefore, it was appropriate to
hold him vicariously liable for the use of those guns in the Colonial Bank robbery.
As to the Harbor Federal Savings robbery (Count 10), sufficient evidence
exists to conclude Quinton Bannister was the ring leader. The evidence revealed
he recruited Michael Lewis to commit the robbery, he gave instructions to each
member of the robbery team regarding their role in the conspiracy, and he acted as
the getaway driver. Here too, it was foreseeable to Bannister that guns would be
used in carrying out the robbery; therefore, it was appropriate to hold him
vicariously liable for the use of those guns in the Harbor Federal Savings robbery.
In conclusion, sufficient evidence exists to support Bannister’s convictions
on all counts.
II. MOTION TO SEVER COUNTS
The denial of a motion to sever is reviewed for abuse of discretion. United
States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990). The court “will not reverse
the denial of a severance motion absent a clear abuse of discretion resulting in
compelling prejudice against which the district court offered no protection.”
United States v. Hersh, 297 F.3d 1233, 1244 (11th Cir. 2002) (citing United States
v. Walser, 3 F.3d 380, 385 (11th Cir. 1993)). Bannister argues the district court
abused its discretion and denied him a fair trial when it denied his motion to sever
8
the counts related to the three bank robberies into separate trials. He notes each
bank robbery involved three distinct conspiracies made up of different groups of
people with different objectives.
We conclude the district court did not abuse its discretion in refusing to
sever the three bank robberies. Any prejudice Bannister may have experienced
was mitigated by the district court’s limiting instructions to the jury and
outweighed by the interest of judicial economy.
III. EVIDENTIARY RULINGS
Evidentiary rulings are reviewed for abuse of discretion. United States v.
Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). Bannister complains of several
evidentiary admissions, which he argues cumulatively warrant a mistrial. We
disagree. A mistrial is only granted when the defendant’s substantial rights have
been prejudicially affected. “This occurs when there is a reasonable probability
that, but for the [admissions], the outcome of the trial would have been different.”
United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007). None of the
admissions of evidence discussed below rise to that level, either individually or
cumulatively.3
3
We also conclude no new trial is warranted even when, as Bannister requests, we view
the evidentiary rulings in combination with the district court’s decision not to sever counts.
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A. SunTrust Bank
Bannister contests the admission of evidence regarding the uncharged
SunTrust Bank robbery, which occurred on April 14, 2004, the same day as the
First National Bank robbery. The two robberies occurred nearly simultaneously as
part of a plan to cause chaos for the police. The participants in both robberies
prepared for the robberies together the evening before, and the two teams met back
in the same apartment after each carrying out their assigned robbery in an identical
manner. We conclude the SunTrust and First National robberies were inextricably
intertwined; therefore, evidence of the SunTrust robbery was properly admitted.
See United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (“Evidence,
not part of the crime charged but pertaining to the chain of events explaining the
context, motive[,] and set-up of the crime, is properly admitted if 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.” (quoting United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998))).
B. Washington Mutual Bank
Bannister argues the district court improperly admitted evidence regarding
the uncharged Washington Mutual Bank robbery under Federal Rule of Evidence
404(b). We conclude there was no reversible error in the admission of this
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evidence; even assuming, arguendo, that the district court erred, its admission was
harmless. The properly admitted evidence against Bannister provided ample
support for every crime of which he was convicted. See United States v. Burgest,
519 F.3d 1307, 1311 (11th Cir. 2008).
C. Co-conspirators’ gold teeth and association with the “Knotty Heads”
Bannister challenges the admission of testimony from co-conspirators’
relating to the significance of having gold teeth and Bannister’s association with a
group known as the “Knotty Heads.” Bannister contends this evidence should not
have been admitted because it was irrelevant, hearsay, and unduly prejudicial.
Although Bannister complains of a hearsay problem, he does not explain why the
statements that were made regarding gold teeth and group membership are
hearsay, as opposed to testimony by fellow Knotty Head members with personal
knowledge of the group’s practices. As to relevance and prejudice, the testimony
was relevant to demonstrate Bannister’s membership in the Knotty Heads and
status within the group. This information constituted circumstantial evidence of
Bannister’s level of involvement in the robberies. See United States v. Bradberry,
466 F.3d 1249, 1253-54 (11th Cir. 2006) (noting district court has discretion to
admit gang membership if it is relevant evidence of association). In this case, the
prejudicial value of the evidence did not outweigh its probative value; therefore,
11
the district court did not abuse its discretion. We conclude the evidence was
properly admitted, and in any event, there was no reversible error.
D. Use of robbery proceeds to pay attorney’s fees
Bannister contests the admission of evidence that bank robbery proceeds
were used to pay an attorney for the representation of Quinton Bannister’s brother,
Juan Bannister. The Government notes evidence of payments of $49,000 in cash
to Juan’s attorney after the First National Bank robbery served as corroborating
evidence and gave Bannister a motive to continue robbing banks. There was no
reversible error in the admission of this evidence.
E. Al Minus’s testimony
Bannister assigns error in two respects to the testimony of Al Minus. First,
Bannister complains that Minus referred to the death of his brother, Derrick
Minus, who was killed in prison. We conclude, as did the district court, that
Minus’s testimony about the death of his brother was not prejudicial to Bannister.
Second, Bannister complains Minus testified about speaking to a detective on
March 27, 2004—prior to any of the charged robberies occurring—“regarding
bank robberies” and said he provided the detective information about Quinton
Bannister. Bannister is correct that this testimony should not have been allowed
given that it predates any of the charged indictments; however, the district court
12
immediately recognized the problem and interrupted the testimony to give the
following curative instruction:
Let me stop for a minute. Ladies and gentlemen, I am going to ask
you to disregard, to strike and not consider the testimony of Mr.
Minus regarding anything that he says that he told the police about
Quinton Bannister. Okay. On March 27th, 2004.
The district court’s instruction to the jury cured any possible prejudice.
In conclusion, we find no reversible error in the testimony of Al Minus.
IV. JURY INSTRUCTIONS
“We review jury instructions de novo to determine whether they misstate the
law or mislead the jury to the prejudice of the objecting party.” United States v.
Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000). Bannister argues the district court
committed reversible error by instructing the jury on the charges using the
disjunctive, as opposed to using the indictment’s language which is phrased in the
conjunctive—for instance, the jury was told it could convict if it found the use of
violence or intimidation, as opposed to the indictment’s language, which accused
Bannister of using violence and intimidation.
“Quite simply, the law is well established that where an indictment charges
in the conjunctive several means of violating a statute, a conviction may be
obtained on proof of only one of the means, and accordingly the jury instruction
13
may properly be framed in the disjunctive.” Id. at 1300. We conclude the district
court did not err by instructing the jury in the disjunctive.
Bannister also maintains the jury should not have been able to convict him
of firearm charges without finding he “personally and actually brandished the
firearm during the robbery.” This argument is merely another attempt by
Bannister to avoid Pinkerton liability for the foreseeable acts of his co-
conspirators. As discussed earlier, this Circuit has extended Pinkerton liability to
§ 924(c) offenses. See Diaz, 248 F.3d at 1099. Accordingly, we conclude the jury
was instructed correctly.
V. SENTENCING
Bannister also appeals his total 946-month sentence. First, he maintains the
district court should not have imposed consecutive sentences because he should
not have been convicted of possessing and brandishing a firearm. Second,
Bannister asserts that application of the career offender provision was “excessive
and unreasonable,” and a variance from the advisory guidelines was warranted, “or
a lesser statutory sentence would suffice.” Third, he asserts that his total sentence
and consecutive sentences were unreasonable and greater than necessary to
accomplish the goals of sentencing under 18 U.S.C. § 3553(a); he also complains
he did not receive an individualized sentence.
14
As to Bannister’s first sentencing claim, the imposition of consecutive
rather than concurrent sentences is “an issue of law subject to plenary review.”
United States v. Perez, 956 F.2d 1098, 1101 (11th Cir. 1992). Section
924(c)(1)(A) provides for a five-year minimum sentence for using or carrying a
firearm in furtherance of a crime of violence. 18 U.S.C. § 924(c)(1)(A)(i). If a
firearm is brandished, the minimum sentence is seven years. Id.§ 924(c)(1)(A)(ii). “In the case of a second or subsequent conviction under this
subsection,” the defendant faces a minimum sentence of 25 years’ imprisonment,
which shall not run concurrently with any other term of imprisonment imposed on
the person. Id. § 924(c)(1)(C)(i), (D)(ii). Furthermore, § 5G1.2 of the Sentencing
Guidelines indicates “the sentence to be imposed on the 18 U.S.C. § 924(c) . . .
count shall be imposed to run consecutively to any other count.” U.S.S.G.
§ 5G1.2(e)(2). Upon review of the record, presentence investigation report, and
sentencing transcript, and upon consideration of the briefs of the parties, we
discern no reversible error. Bannister was convicted for § 924(c) offenses because
he personally used a firearm in the First National Bank robbery, and because he
was also liable for the acts of his co-conspirators when they used weapons in the
Colonial Bank and Harbor Federal Savings robberies, see Diaz, 248 F.3d at 1099.
Therefore, the district court did not err in imposing consecutive sentences, as was
15
recommended by the Sentencing Guidelines and required by the statute. See 18
U.S.C. § 924(c); U.S.S.G. § 5G1.2(e)(2).
Second, turning to Bannister’s complaint regarding being sentenced as a
career offender, Bannister was properly considered a career offender because he
had two prior convictions for battery against law enforcement officers. See
U.S.S.G. § 4B1.1(a); United States v. Glover, 431 F.3d 744, 749 (11th Cir. 2005)
(noting battery on a law enforcement officer is a crime of violence).
Third, post-Booker,4 a district court, in determining a reasonable sentence,
must correctly calculate the sentencing range under the Guidelines and then
consider the factors set forth in § 3553(a). See United States v. Talley, 431 F.3d
784, 786 (11th Cir. 2005). We review a defendant’s ultimate sentence for
reasonableness in light of the § 3553(a) factors. See United States v. Winingear,
422 F.3d 1241, 1246 (11th Cir. 2005). The party challenging the sentence “bears
the burden of establishing that the sentence is unreasonable in the light of both
th[e] record and the factors in section 3553(a).” Talley, 431 F.3d at 788. In this
case, the district court correctly calculated the advisory Guidelines range, and the
sentencing transcript demonstrates the court considered Bannister’s arguments and
the § 3553(a) factors. Ultimately, the district court sentenced Bannister at the low
4
United States v. Booker, 125 S. Ct. 738 (2005)
16
end of the applicable guideline range, and Bannister has failed to demonstrate the
sentence he received is unreasonable.
Accordingly, we conclude the district court did not err in sentencing
Bannister.
VI. CONCLUSION
The convictions and sentence of Quinton Bannister are AFFIRMED.
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