United States v. Atkinson , 316 F. App'x 93 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-9-2008
USA v. Atkinson
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3155
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 07-3155
____________
UNITED STATES OF AMERICA,
Appellee,
v.
TONY D. ATKINSON,
also known as
TONY ATKINS,
Tony D. Atkinson,
Appellant.
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 05-cr-00141-1)
District Judge: Honorable Donetta W. Ambrose
____________
Submitted Under Third Circuit LAR 34.1(a)
October 2, 2008
Before: FISHER, CHAGARES and HARDIMAN, Circuit Judges.
(Filed: October 9, 2008)
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Tony Atkins1 appeals his conviction and 210 month sentence following a jury trial
for bank robbery. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and
we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We will affirm.
I.
Because we write for the parties, we recount only those facts essential to our
decision.
On July 16, 2003, a black male identified as Atkins robbed a PNC Bank office on
Liberty Avenue in Pittsburgh, Pennsylvania. After leaving the bank, the man ran down
Liberty Avenue, turned onto several adjacent streets, and was eventually chased down and
arrested near Seventh and Penn Avenue. Atkins claims that he was wrongly identified as
the bank robber after he collided with a person who dropped a bag of money while
walking down Penn Avenue. Atkins claims that he picked up the bag of money, started
running away, and minutes later was subdued and arrested for a crime that he did not
commit.
1
We will refer to Appellant Tony D. Atkinson, a/k/a Tony Atkins as “Atkins.”
Both the Appellant and the Appellee referred to him as “Atkins” in their submissions to
this Court, and we will follow their naming conventions.
2
Following a jury trial, Atkins was convicted of bank robbery in violation of 18
U.S.C. § 2113(a)(1). He was sentenced to 210 months imprisonment, to be followed by
three years of supervised release.
II.
Atkins first argues that he is entitled to a new trial because the District Court
violated his right to due process when it failed to instruct the jury, or allow Atkins to
argue to the jury, that it could infer from the government’s failure to produce a bank
surveillance tape that the contents of the tape would have supported Atkins’s defense of
mistaken identification. Atkins also alleges that the District Court improperly placed the
burden on him to prove that the surveillance tape existed.
Courts will allow an adverse inference instruction to be given to the jury in cases
where “the government fails to produce evidence, and the instruction tells the jury that the
failure to produce this evidence creates a presumption that the evidence would be
favorable to the defendant.” United States v. Drozdowski, 313 F.3d 819, 825 n.3 (3d Cir.
2002). An adverse jury instruction will not be given, however, where the evidence was
not in the control of the government and actually suppressed or withheld from the
defense. Id. (refusing to give an “absent witness” jury instruction because the
government was not in possession of the witness); see also Gumbs v. Int’l Harvester, Inc.,
718 F.2d 88, 96 (3d Cir. 1983) (explaining that “it must appear that there has been an
actual suppression or withholding of the evidence; no unfavorable inference arises when
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the circumstances indicate that the document or article in question has been lost or
accidentally destroyed, or where the failure to produce it is otherwise properly accounted
for”).
Here, the record is devoid of any evidence that the prosecution had the surveillance
tape in its custody and withheld it to frustrate Atkins’s defense. Instead, the defense
relies on prior statements by the prosecution and by a bank teller that a tape existed and
that the prosecution was looking for it. But when the issue of the surveillance tape was
discussed at trial, the prosecution represented to the District Court that:
I quite frankly don’t know any one in the case, assistant DA’s, detectives,
anybody, FBI, who has ever seen this tape. I apologize because there has
been lots and lots of talk about it. . . . I’m not sure if the tape really exists or
not. I know there was lots of talk about it but I’ve never interviewed
anyone who actually touched the video tape from that bank or who has ever
seen it. I’ve not talked to any prosecutors, state or federal, who have ever
seen this tape either but we have also looked diligently . . . .
Although the record suggests that there was confusion over the status of the surveillance
tape, this confusion alone does not show that the prosecution had the tape under its
control and that it suppressed or withheld it during the trial. Accordingly, we decline to
find that Atkins’s due process rights were violated when the District Court refused to
instruct the jury that it could infer that the contents of the video tape would have
supported the defense.
Nor do we find that the District Court precluded Atkins from presenting a defense
of misidentification. During closing arguments, the District Court allowed Atkins’s
4
attorney to tell the jury that it could draw an adverse inference from the missing
surveillance tapes. Atkins’s attorney told the jury:
to the extent that there were cameras in that bank and we know there were
cameras in that bank based on Tabatha Gross’ testimony, we also know that
she changed the tape every morning. That was her job and she had testified
she changed the tape that morning. The government did not produce
anybody to come in and tell you if the tape wasn’t working that day, if the
cameras weren’t working that day. Why was there never a tape? Nobody
has ever come to explain, first of all, whether a tape exists but why a tape
wouldn’t exist. . . . [T]he government has the burden and it carries that
burden.
Before jury deliberation began the next day, the Court instructed the jury:
The existence or non-existence of a tape is a question of fact, and it is for
you, and you alone, to decide. . . . You will decide from the evidence you
heard or the lack of evidence whether or not a tape exists and how
important that fact is to your decision in this case. . . . [Y]ou may or may
not, depending on what you find credible in this case, draw any inferences
suggested by [Atkins’s attorney], in her closing argument with respect to the
video tape and with respect to anything else.
Thus, Atkins was not precluded from arguing to the jury that it could infer from the
prosecution’s failure to produce a bank surveillance tape that such a tape would have
supported Atkins’s defense of mistaken identity.2
2
Atkins’s additional argument that the District Court placed the burden on him to
prove that a surveillance video tape existed also fails. While the burden was on the
government to explain to the Court why it did not produce the tape, see Gov’t of the
Virgin Islands v. Testamark, 570 F.2d 1162, 1165 (3d Cir. 1978), the government met this
burden when it represented to the Court the circumstances of the missing tape and its
efforts in locating the tape. Morever, the record shows that the District Court allowed
Atkins to argue to the jury that it was the government’s burden to prove that a tape did not
exist. The District Court later reiterated to the jury that “the government has the sole, the
only burden of proving this case. The defendant has no burden. He is not required to
5
III.
Atkins next argues that his due process rights were violated when the District
Court denied his motion to suppress two in-court identifications of him. Atkins asserts
that the identifications resulted from procedures which were “unduly suggestive” and
which “created a substantial likelihood of misidentification.” Specifically, Atkins argues
that the identifications made by the witnesses, both bank tellers who were working at the
time of the robbery, were improperly made at a preliminary hearing because Atkins stood
beside defense counsel while handcuffed, shackled, and wearing a red Allegheny County
Jail jumpsuit.
We review a denial of a motion to suppress evidence “for clear error as to the
underlying facts, but [will] exercise plenary review as to its legality in the light of the
court’s properly found facts.” United States v. Brownlee, 454 F.3d 131, 137 (3d Cir.
2006) (quoting United States v. Inigo, 925 F.2d 641, 656 (3d Cir. 1991)).
We utilize a two-step analysis for determining whether an identification procedure
violated a defendant’s due process rights. See United States v. Maloney, 513 F.3d 350,
355 (3d Cir. 2008). First, we review whether the identification procedure was
“unnecessarily suggestive.” Id. If the identification procedure was unnecessarily
suggestive, we then assess the reliability of the identification by reviewing the “totality of
offer any evidence. He is not required to prove anything in his defense. It is only the
government who has the burden of proving the essential elements of the offense
charged.”
6
the circumstances.” Id.; United States v. Emanuele, 51 F.3d 1123, 1130 (3d Cir. 1995).
“A ‘suggestive and unnecessary identification procedure does not violate due process so
long as the identification possesses sufficient aspects of reliability’” in light of the totality
of the circumstances. Emanuele, 51 F.3d at 1128 (quoting Manson v. Brathwaite, 432
U.S. 98, 106 (1977)).
Here, the parties and the District Court agree that the identification process was
suggestive. Accordingly, we must ask whether the identifications met the requisite
standards of reliability.
In assessing the reliability of an identification procedure, the totality of the
circumstances analysis requires the Court to consider: (1) the witness’ opportunity to
view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the
witness’ accuracy in the prior description of the criminal; (4) the witness’ level of
certainty demonstrated at the confrontation; and (5) the length of time between the crime
and the confrontation. Neil v. Biggers, 409 U.S. 188, 199 (1972); Emanuele, 51 F.3d at
1128.
We agree with Atkins that some of the Biggers factors weaken the reliability of the
bank tellers’ identifications. For example, both tellers – Tabatha Gross and Sonia
McNary – testified that the entire robbery happened very quickly. McNary explained that
Atkins was standing right next to her for “[p]robably no more than a minute because he
was moving real fast.” Gross stated that “he moved pretty quick.” McNary also admitted
7
that she did not see his whole face because “he [had] on a hat and glasses.” Moreover,
both witnesses admitted that they were shocked and disoriented after the robbery. They
also made mistakes in the accuracy of their initial descriptions of Atkins. Gross described
the robber as “[black male] approx[imately] 6 ft. dark complexion, baseball cap, dark
pants waering [sic] a yellow T shirt.” McNary described the robber as “[black male],
approx[imately] 5'7, 200 lbs., white and blue ball cap, wearing a yellow shirt and sun
glasses.” While Atkins is a black male, he is 5'11" and weighs 200 lbs. At the time of his
arrest, he was wearing a yellow polo shirt instead of a t-shirt and did not have a hat or
sunglasses in his possession.
The other Biggers factors, however, suggest that the witnesses’ identifications
were reliable. For instance, both witnesses had the opportunity to observe Atkins at close
range despite the speed of the robbery. Gross testified that she was able to get a good
look at him, including his face, when he was standing “[j]ust inches from [her].” She
watched him walk past two tellers and then back to her and he was close enough that he
bumped into her. McNary testified that she first saw Atkins standing behind the teller
counter next to Gross. He later moved between her and another teller and was standing
“a couple inches” from her, where she was able to look at him. While pulling money out
of her drawer, Atkins told McNary “don’t say nothing, don’t move” and McNary later
watched Atkins run past the window when he left the bank.
8
In their initial descriptions of Atkins, both witnesses accurately described him as a
black male wearing a yellow shirt. They also testified that they were confident in their
identifications of Atkins. Gross testified that “[e]ven if he didn’t have a jump suit on, I
still would have recognized him” at the preliminary hearing. McNary testified that she
identified Atkins at the preliminary hearing because she “remembered seeing him at the
robbery.”
Accordingly, we are satisfied that the totality of the circumstances shows that there
were sufficient indicia of reliability in the bank tellers’ identifications. The witnesses saw
Atkins from a close distance and paid attention to him, gave relatively accurate prior
descriptions, and testified that they identified him based on their memory of him at the
time of the robbery. Accordingly, the District Court did not err in applying the Biggers
factors when it denied Atkins’s motion to suppress the in-court identifications by two
witnesses.
IV.
Finally, Atkins argues that the District Court improperly sentenced him by: (1)
failing to respond to his 18 U.S.C. § 3553 arguments; (2) giving the advisory Guidelines
presumptive weight; and (3) imposing a sentence greater than necessary. We review
Atkins’s sentence for an abuse of discretion. Gall v. United States, 128 S. Ct. 586, 597
(2007).
9
At sentencing, a district court must: (1) calculate the Guidelines range; (2) decide
whether a departure under the Guidelines is appropriate; and (3) decide whether to vary
from the Guidelines based on the relevant § 3553 factors. United States v. Gunter, 462
F.3d 237, 247 (3d Cir. 2006). Although courts must treat the Guidelines as advisory, they
“are not ‘required to routinely state by rote that they . . . know the sentencing guidelines
are now advisory.’” United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006) (quoting
United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)). Instead, “the record must
demonstrate that the trial court gave meaningful consideration to the § 3553 factors.”
Cooper, 437 F.3d at 329. “The court need not discuss every argument made by a litigant
if an argument is clearly without merit.” Id.
Our review of the record demonstrates that the District Court properly followed the
procedure outlined in Gunter to determine Atkins’s sentence. First, the parties agree that
the District Court correctly calculated the applicable Guidelines range – 210 to 262
months – and that Atkins’s 210 month sentence is at the low end of the range. Next, the
District Court properly considered the § 3553 factors and explained that the Court’s “job
is to fashion a sentence that is sufficient but not greater than necessary to achieve the
purposes of sentencing.”
The District Court reviewed the “nature and circumstances of the offense,”
§ 3553(a)(1), stating:
here we have another bank robbery, which is a serious offense. . . . [A]ll
the things that Mr. Burke said about the circumstances of the offense, the
10
location, Fifth Avenue Place, a busy corner at lunchtime, you know, lots of
people around, make it even more serious because of the potential for
someone being harmed. So the offense level given to this crime by the
advisory guideline is an appropriate offense level.
The District Court then discussed the “history and characteristics of the defendant,”
§ 3553(a)(1), noting that “what has happened is that you have spent 34 of the last 36 years
in jail, and you are a career offender, so you are at the top of the list there and I have to
consider that.”
The District Court next discussed the need for the sentence to “afford adequate
deterrence,” § 3553(a)(2)(B), “protect the public,” § 3553(a)(2)(C), and “provide the
defendant with needed . . . treatment in the most effective manner,” § 3553(a)(2)(D). The
District Court questioned Atkins’s ability to be deterred and stated that “it appears that the
only way that the public can be protected is by incarceration.” The Court concluded by
stating that “the advisory guideline range is an appropriate range for your case because of
all the factors that I have considered and all the things that I have just said. . . . You’re
old enough to make a decision this time as to whether or not you’re going to die in prison
or not, and my hope is that it’s not. So I think the low end of the range at least gives you
the opportunity to make that decision.” The District Court’s analysis was more than
sufficient under Gunter.
Finally, we hold that the District Court did not abuse its discretion in rejecting
Atkins’s arguments that his “old” age (he was 52 years old when he committed the
robbery and 57 years old when he was sentenced; accordingly, he will be approximately
11
70 years old if he serves the full 210 months) made his sentence “greater than necessary
and unreasonable” in light of the aforementioned § 3553 factors considered by the Court.3
For the foregoing reasons, we will affirm the judgment of the District Court.
3
We also find no abuse of discretion in the District Court’s refusal to uphold
Atkins’s suggestion that because he will likely receive a mandatory revocation of his
parole for a crime committed in Louisiana, the Court should decrease his sentence to
reflect his additional time of incarceration in Louisiana. Specifically, Atkins suggested
that because he will likely serve 72 months on the mandatory state revocation in
Louisiana, his sentence should be reduced by 72 months to a final sentence of 138
months. The District Court considered this argument and reasonably responded: “I’m not
going to speculate on what Louisiana does. If I were a judge in Louisiana and looked at
this federal sentence, I’d probably say what’s the point of adding on? But I don’t know
these Louisiana judges. I don’t know what they’ll think.”
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