United States v. Jones ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4374
JONATHAN MARK JONES,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frank A. Kaufman, Senior District Judge.
(CR-94-281-K)
Submitted: November 17, 1998
Decided: January 12, 1999
Before ERVIN and WILKINS, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Beth M. Farber, Acting Federal Public Defender, Joseph A. Balter,
Deputy Assistant Federal Defender, Baltimore, Maryland, for Appel-
lant. Lynne A. Battaglia, United States Attorney, Andrew G. W. Nor-
man, Assistant United States Attorney, Andrew Clayton White,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jonathan Mark Jones appeals his jury convictions of attempted
bank robbery, bank robbery, and related firearms offenses and his
resulting sentence. He attacks the trial court's denial of motions to
suppress evidence, to sever his trial, and for judgment of acquittal.
Because we find no error in the court's denial of these motions, we
affirm Jones's convictions and sentence.
On June 6, 1994, two armed black males attempted to rob a First
National Bank of Maryland in Baltimore. Both men carried machine
pistols and wore dark clothing and dark ski masks. They also covered
the lower portions of their faces with dark cloths. One was described
as 5'8" to 5'10" tall with a thin build and light to medium black com-
plexion; the other was described as 6' tall with a heavier build. One
witness testified he believed both were African-American. The men
fled the bank through the back door without taking any money when
an alarm went off.
On June 8, 1994, two armed men robbed the Maryland National
Bank in Towson. Both robbers were armed with machine pistols and
wore rubber gloves, dark ski masks or hoods, and sweat-type cloth-
ing. Both robbers were black. One was described as taller with a
heavier build than the second robber, who was between 5'8" and 6'
tall and thinner in build with a lighter complexion. Police and FBI
agents who responded on the scene learned that the bank security
guard was disarmed of his revolver; that bank employees filled a gray
duffle bag with bank currency; and that a bank dye pack placed in the
bag detonated as the robbers escaped.
A security guard chased the robbers down the street and saw them
get into a pick-up truck driven by a third African-American. One
entered the rear flatbed area of the truck and hid under a tarp while
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the other entered the front driver's side. A third, and possibly a fourth,
black male were noted in the truck. Another witness noted that the
truck was a black Toyota with a Maryland license number 102048.
With this information, police reviewed Maryland motor vehicle
records and determined that the vehicle was registered to Kittrell
Decator, an African-American male, and Rita Decator Homes, an
African-American female. Further search of utility records disclosed
that Kittrell Decator had utility services listed in his name at 2349
Eutaw Place, an apartment building in Baltimore, a different address
from the one noted in Maryland motor vehicle records.
On June 8, Baltimore police began surveillance at the Eutaw Place
address. That afternoon, police observed a dark green Toyota Camry
traveling in the alley at the rear of Eutaw Place, where it was parked.
Several minutes later, detectives stopped the car as it pulled away.
The detectives identified themselves as police officers, requested that
the occupants of the car keep their hands in view, and asked them for
identification. The driver produced a Maryland driver's license identi-
fying him as Kittrell Decator, and the passenger produced identifica-
tion indicating he was Jonathan Mark Jones. Decator informed one of
the officers that the Camry was a rental car and that he had taken his
truck to a repair shop earlier that day.
Upon learning that Decator, the registered owner of the getaway
truck used that morning in the bank robbery, was an occupant of the
Camry, the detectives asked both to step out of the car. The detectives
observed that the passenger, Jones, was taller and heavier than Deca-
tor, which matched the physical description of the two men who
robbed the bank earlier that day. The officers patted both men down
for weapons and found none. The two were then independently inter-
viewed. Neither was handcuffed or informed that he was under arrest.
Detective Ziegler interviewed Decator in front of his car. He
informed him that he had some questions about Decator's truck, but
before asking him any specific question, he apprised Decator of his
Miranda rights and informed him that he was not under arrest. Deca-
tor acknowledged that he understood his rights and agreed to speak
with the officer. When informed that his truck had been used in a rob-
bery, Decator claimed that the truck had been stolen earlier that day.
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Meanwhile, Jones informed police that the truck had been parked near
Pressman Street an hour or two earlier.
As Decator was being interviewed, Detective Ballard confronted
him with the inconsistencies regarding the whereabouts of the truck.
Decator then became nervous and agitated. Shortly after Decator
received his Miranda warnings and was interviewed, another detec-
tive found dye-stained white surgical gloves on the driveway pad at
the rear of 2348 Eutaw Place. The gloves were consistent with those
worn by the bank robbers, and the red dye was consistent with that
of an exploding dye pack. Jones and Decator were then arrested.
Police seized a digital pager Decator was wearing when he was
arrested. While the beeper was in Detective Ziegler's possession, it
went off, and Ziegler accessed the numbers contained in the beeper's
memory. One frequent number was traced to the switchboard of a
Howard Johnson Motel in Baltimore County. Officers were dis-
patched to the motel to ascertain the room from which the calls origi-
nated.
The officers seized the Camry and towed it to police headquarters.
Inside the trunk of the car, officers found a black backpack containing
two loaded machine pistols, the bank guard's loaded revolver, a box
of latex surgical gloves, two black nylon face masks, and a sweatshirt
with a crossed-oar design that had been described to investigators by
bank employees as being worn by one of the robbers.
Officers dispatched to the Howard Johnson Motel observed Craig
Lamont Scott leaving the hotel. As he left, he walked directly in front
of FBI Agent Dougher, who was openly wearing his gun and badge.
Scott was carrying a gray duffle bag. Scott ignored Dougher's
requests to stop and eventually entered a shopping mall. Dougher fol-
lowed Scott into the mall and observed him making a call from a pay
phone. When Scott finished his call, Dougher approached him, identi-
fied himself as an FBI agent, and asked to speak with him. Scott
asked Dougher where his badge was and pointed to the agent's left
breast pocket. (Dougher had placed his gun and badge out of view in
order not to alarm patrons of the mall.) Fearful that Scott might be
armed, Dougher asked Scott to put the bag on the ground. Scott
turned and started to run, and Dougher grabbed him by the arm. Scott
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then hit Dougher in the head with the duffel bag, the bag fell, and
Scott fled. Dougher eventually caught up with Scott in a Marshall's
department store, where a struggle ensued. Scott was finally appre-
hended with the help of a store security officer.
Detective Folio recovered the duffel bag. Suspecting that it might
contain a loaded weapon, he opened it and discovered that it con-
tained a large amount of cash (approximately $113,000). Next to the
bag, he found a plastic bag containing money wrappers and money
bands from the Maryland National Bank. Scott was then arrested. A
search of Scott's person pursuant to the arrest uncovered a key to
room 504 at the Howard Johnson Motel, a room receipt, and other
papers (among which was a business card in the name of Kittrell
Decator).
Believing that a fourth robbery suspect could still be at large, offi-
cers entered Room 504 of the Howard Johnson's and found no one
there. They secured the room and later obtained a search warrant. The
subsequent search disclosed Scott's fingerprints on the phone and
dye-stained towels.
Based upon this evidence, a jury convicted Jones of the attempted
bank robbery, bank robbery, and use of a firearm in the commission
of both crimes. Jones was sentenced to 17 years and 3 months' incar-
ceration.
Jones first asserts that the police stop of the vehicle in which he
was a passenger was not supported by reasonable suspicion and that
his resulting arrest was not supported by probable cause. We review
the district court's legal conclusions de novo and its factual findings
for clear error. See United States v. Williams , 10 F.3d 1070 (4th Cir.
1993). A brief, investigatory, warrantless stop of a car is permissible
if an officer has reasonable suspicion, based on specific and articul-
able facts, that the car's occupants have committed a crime. See Terry
v. Ohio, 392 U.S. 1, 10 (1968); United States v. Rusher, 966 F.2d 868,
875 (4th Cir. 1992). If the investigatory stop is reasonably related in
scope to the circumstances which justified the interference, the stop
is constitutionally permissible. See United States v. Sharpe, 470 U.S.
675, 682 (1985).
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Law enforcement officers stopped the Toyota Camry in which
Jones was a passenger because they reasonably suspected that the
car's occupants might have been involved in the bank robberies. The
Camry had recently arrived at and was then departing from the Eutaw
Place address to which the license plate of the bank robbers' getaway
truck had been traced. It was therefore reasonable for the officers to
believe that the registered owner of the getaway truck, Decator, might
have been involved in the bank robbery and that Decator was either
the driver of the Camry or its passenger.
An arresting officer must have probable cause to believe that the
person arrested has committed an offense; such probable cause exists
if "at the moment the facts and circumstances within [the officer's]
knowledge and of which [he] had reasonably trustworthy information
were sufficient to warrant a prudent man in believing that the peti-
tioner had committed or was committing an offense." Beck v. Ohio,
379 U.S. 89, 91 (1964). Once the officers discovered that Decator was
an occupant of the car, they permissibly asked the two men to exit the
vehicle and separated them to be interviewed. When the men got out
of the vehicle, it was then apparent that they met the physical descrip-
tion of the robbers. The two men then provided inconsistent accounts
concerning the whereabouts of the truck. During questioning, Decator
asked that Jones throw him the keys to the truck, which he did.
Finally, the officers discovered dye-stained surgical gloves in the
driveway where the Camry had been parked. We conclude that all of
these factors provided sufficient probable cause to arrest Jones.
Next, Jones asserts that the court abused its discretion in denying
his motion to suppress statements he made at the police station after
previously invoking his right to remain silent at the scene of his
arrest. He asserts that the statements were admitted in violation of
Miranda v. Arizona, 384 U.S. 436 (1966). When police honor an
accused's right to remain silent by immediately ceasing interrogation
and recommencing questioning only after a significant lapse of time
and fresh warnings, the accused may waive the right to remain silent
he previously asserted. See Michigan v. Mosley , 423 U.S. 96, 106
(1975); United States v. House, 939 F.2d 659, 662 (8th Cir. 1991).
The court must weigh three factors in assessing whether continued
questioning after an initial refusal to answer questions was appropri-
ate: (1) whether there was an immediate cessation of questioning
6
upon defendant's request; (2) whether a "significant amount of time"
had passed since the last session and a new set of warnings given; and
(3) whether the second interrogation involved inquiries concerning a
separate crime. Id.Jones initially invoked his right to remain silent at the scene of the
traffic stop following advice of his Miranda warnings, and all ques-
tioning of him stopped. Neither was there any interrogation following
his arrest during the ride to the police station. Almost two hours later,
Detective Marcin, who was not one of the officers who initially ques-
tioned Jones, advised Jones of his Miranda rights and interviewed
him. Jones initialed each individual right on the rights waiver. Though
the questions were not about a different crime, courts have held that
"a second interrogation is not rendered unconstitutional simply
because it involves the same subject matter discussed during the first
interview." House, 939 F.2d at 662. We find no abuse of discretion
in either the court's balancing of the Mosley factors or its decision to
admit Jones's statements.
Jones asserts that the trial court erred in declining to sever his trial
on two counts related to the attempted bank robbery from the trial on
the counts related to the second bank robbery. The trial court has a
wide range of discretion in severance matters which we do not disturb
absent a showing of clear prejudice or abuse of discretion. See United
States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995) (citation omitted).
In cases in which the offenses are identical or strikingly similar in the
method of operation and occur over a short period of time, it is not
an abuse of discretion to deny severance. Id. Our review of these con-
siderations supports the district court's denial of severance. We agree
with the district court's assessment that the June 6 attempted bank
robbery and the June 8 bank robbery were sufficiently similar in
method and close enough in time that there was no abuse of discretion
in denying the motion for joinder.
Finally, Jones contends the court improperly denied his motion for
judgment of acquittal on the grounds that the evidence was insuffi-
cient to support his convictions related to the June 6 attempted rob-
bery. We must sustain a jury verdict "if there is substantial evidence,
taking the view most favorable to the Government, to support it."
Glasser v. United States, 315 U.S. 60, 80 (1942).
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As we previously noted, the June 6 attempted robbery and the June
8 robbery were factually similar in several respects. In addition, when
one of the investigating officers noted the similarity between the June
6 attempted robbery and the June 8 robbery during an interview with
Jones, Jones stated that the June 6 incident "wasn't a robbery because
they didn't get any money." This fact would not have been known by
anyone who was not a participant in the robbery. Construing this evi-
dence in the light most favorable to the Government, we conclude it
is sufficient to sustain Jones's jury convictions for attempted bank
robbery and use of a firearm in that attempt.
For these reasons, we affirm Jones's jury convictions and sentence.
We dispense with oral argument because the facts and legal conten-
tions of the parties are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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