United States v. Daniel Banks , 213 F. App'x 155 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4151
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANIEL BANKS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (5:05-cr-0030-FPS)
Submitted: December 6, 2006 Decided: January 11, 2007
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
L. Richard Walker, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellant.
Rita R. Valdrini, Acting United States Attorney, David J. Perri,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case arises out of an ongoing feud between rival groups
in Wheeling, West Virginia. As a result of a May 2005 shooting
incident, defendant Daniel Banks was convicted of one count of
“Felon in Possession of a Firearm” in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2), and sentenced to 92 months. We affirm
the defendant’s conviction and sentence.
I.
On May 28, 2005, James Harris, Lorenzo Clark, and Chris Waitts
were talking in an East Wheeling alley. A man whom Harris
immediately recognized as the defendant, Daniel Banks, appeared at
the corner adjoining an intersecting alley. He yelled obscenities
and pointed a gun in their direction. Clark ran one way and Harris
and Waitts scaled a nearby chainlink fence. They heard shots
behind them.
Toni Reynolds, a software consultant who lives in an East
Wheeling apartment overlooking the intersecting alley, testified
that she heard the gunshots, looked out the window, and saw two men
sprinting down the street. She described the men as black males,
wearing white shirts, and light colored pants. One man was wearing
a black jacket and the second man was carrying a black jacket. As
Reynolds watched, one of the men turned up the alley located behind
the Scottish Rite Temple. He reappeared a few seconds later.
2
A second witness, Ernest Stewart, was parked beside the
Scottish Rite Temple when he heard pistol shots. He called 911.
While he was on the phone, a man in a white tank top and light
pants ran around the corner of the alley. He was trying to wrap up
a pistol in what appeared to be a black sweatshirt. The man
pointed the gun at Stewart, turned, and ran back down the alley.
Later that day, Stewart identified Banks at the Wheeling Police
Department.
Wheeling police officers found two pistols -- a nine
millimeter Smith & Wesson and a .45 caliber pistol -- hidden in a
nearby vacant lot behind a gymnasium. The pistols were wrapped up
in a black jacket. Defendant and a cohort were arrested nearby.
Their clothing matched the description provided by the witnesses.
They were sweating, agitated, and jacketless. A ballistics
examination revealed that the nine millimeter Smith & Wesson pistol
recovered from the vacant lot had fired the three shell casings
found at the shooting scene. Swabs taken of the defendant’s right
hand revealed gun shot residue.
During pre-trial proceedings, the prosecution requested and
the court granted a jury view, which gives jurors an opportunity to
view the scene of a crime. According to the United States, a view
would aid the juror’s understanding of East Wheeling, an unfamiliar
area that was not readily susceptible to verbal description. The
United States Marshals Service voiced security concerns over
3
allowing the defendant -- judged a flight risk by the magistrate
judge -- to return to his home turf unrestrained. The court
nevertheless allowed Banks to participate in the view. The court
determined that the defendant could follow along with the jury
view, unseen by the jurors, in an unmarked van. The court also
invited defense counsel to ride in the bus with the jurors, but
counsel elected instead to accompany the defendant.
At trial, Banks was convicted on one count of “Felon in
Possession of a Firearm” in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2), and sentenced to 92 months. Defendant now appeals his
conviction and sentence arguing that the district court erred (1)
by excluding him from the jury view; (2) by admitting into evidence
the .45 caliber pistol; and (3) by imposing an unreasonable
sentence.
II.
The defendant first argues that he was “effectively deprived
of the ‘indicia of innocence’” because he was not permitted to
attend the jury view unshackled. He thus chose to follow the jury
bus on its tour of East Wheeling in an unmarked van. He contends
this caused the jury to conclude from his absence that he was in
custody and a “bad man.”
This argument misses the mark. To begin with, there is no
absolute constitutional right for a criminal defendant to be
4
present during a jury view of a crime scene. Snyder v.
Massachusetts, 291 U.S. 97, 107-08 (1934), overruled on other
grounds by Malloy v. Hogan, 378 U.S. 1 (1964); Arnold v. Evatt, 113
F.3d 1352, 1359 (4th Cir. 1997); Devin v. DeTella, 101 F.3d 1206,
1209 (7th Cir. 1996). In this case, the trial judge made every
effort to accommodate the defendant’s desire to participate in the
view and his desire to avoid being seen in shackles by the jury.
Accordingly, because the exclusion of the defendant from the jury
view would not necessarily amount to a constitutional violation,
see Snyder, 291 U.S. at 110, his participation in the view by means
of an unmarked van certainly does not, see Arnold, 113 F.3d at
1359-60.
Finally, any error in the way that a jury view is conducted is
subject to harmless error review. Id. at 1361. Here, the trial
court mitigated any possibility of prejudice to the defendant. To
begin with, the trial judge himself conducted the view. See id.The view itself was nonprejudicial; the judge simply pointed out,
without comment, four previously determined sites. See Snyder, 291
U.S. at 110. Finally, defense counsel was given the opportunity to
participate in the view, to walk through each portion of the view
with the jurors, and to point out other sites that the defendant
wished identified.
5
III.
Defendant next argues that the district court erred by
admitting into evidence the .45 caliber pistol, claiming that the
admission was both irrelevant and unduly prejudicial. We disagree.
The .45 caliber pistol was relevant under Federal Rule of Evidence
401 because it tended to corroborate the testimony of eyewitnesses
and because the pistol helped furnish the context for and complete
the story of the crime. See FED. R. EVID. 401; see also United
States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994); United States
v. Masters, 622 F.2d 83, 87 (4th Cir. 1980).
At trial, Officer Gittings testified that he found two guns
-- the disputed .45 caliber pistol and the 9 millimeter Smith &
Wesson -- wrapped inside a black jacket and hidden in a shallow
hole along the defendant’s escape route. The fact that the .45
caliber pistol was found alongside the 9 millimeter Smith & Wesson
tended to corroborate the testimony of eyewitnesses Toni Reynolds,
Ernest Stewart, and James Harris. It was also relevant to and
probative of the defendant’s possession of the 9 millimeter firearm
specified in the indictment. Finally, it was within the court’s
sound discretion to admit the .45 caliber pistol since the pistol
was, quite literally, wrapped up in evidence which provided context
for and helped to complete the story of the crime.
Nor can the defendant show a danger of unfair prejudice under
Federal Rule of Evidence 403. See FED. R. EVID. 403. Officer
6
Gittings’ testimony regarding the discovery of the .45 caliber
pistol had already been admitted -- without objection. The court
also agreed to give a cautionary instruction to the jury,
explaining that the .45 caliber pistol was not the weapon the
defendant was charged with possessing in the indictment. The
defendant, moreover, argued all along that he was simply in the
wrong place at the wrong time and categorically denied any
knowledge of or involvement in the alleged shooting. The district
court plainly did not abuse its discretion in concluding that the
probative value of the pistol itself outweighed any possibility of
unfair prejudice to the defendant.
IV.
Finally, defendant contends that the court’s sentence is
“unreasonable” because the court failed to depart on the basis of
Banks’ “history and characteristics,” namely, poverty, a
challenging childhood, and lack of parental guidance. See 18
U.S.C. § 3553(a)(1) (2000). We note at the outset that the
district court imposed the minimum sentence within the properly
calculated advisory guidelines range, 92 months. The court,
moreover, took into consideration the factors listed in 18 U.S.C.
§ 3553(a). The record is clear that the court considered
defendant’s “history and characteristics,” paying special attention
to Banks’ evidence regarding his disadvantaged background. Indeed,
7
the court stated that this history influenced Banks’ sentence
within the guidelines range, but that the defendant’s personal
history -- which was similar to that of many other defendants --
did not justify a sentence below the advisory guidelines. While
finding Banks’ background unfortunate, the court wrote that it did
not excuse Banks’ criminal conduct or “wipe away the other crimes
that the defendant has committed.”
Defendant also argues that his sentence was based on the
judge’s “personal beliefs about Banks’ father” rather than the
evidence adduced at the sentencing hearing. The district judge did
not, however, rely on personal observations, but rather on the
evidence proffered by the defense. The court wrote that because
the defendant’s evidence of his family situation was not
“measurably different from defendants similarly situated” the
evidence could not “lead [the court] to vary or depart downward on
the sentencing range.” Moreover, the court’s stray remarks
regarding the defendant’s father, however misguided, cannot be said
to have improperly influenced sentencing here because those
comments are in general accord with defendant’s own submissions.*
*
The district court noted that, based on its understanding,
Banks’ father never set anyone on “a wrongful path.” Defense
testimony was not to the contrary. Defense counsel referenced
“reports” that Banks’ father was physically abusive, but continued
stating that Banks’ father “seemed to have the children’s interest
in mind. And I think he wanted to, through being a strict
disciplinarian, keep the children studying in school, being good
people, being good neighbors and in the main, your Honor, I think
he was successful in that.” According to defendant, trouble
8
Taking the sentencing proceeding as a whole, it is clear that
the defendant did not receive a variance or downward departure from
the advisory guidelines range because of defendant’s extensive
criminal history and the egregious nature of his offense -- not
because of any personal views the court may have formed
independently as to the defendant’s background. Indeed, the
district court’s consideration of the defendant’s background worked
in his favor. See 18 U.S.C. 3553(a)(1). “Because the record does
not demonstrate that the judge’s personally held ... beliefs formed
‘the basis of [the] sentencing decision,’ we conclude that [the
defendant’s] due process rights were not violated by the judge’s
... reference at sentencing.” Arnett v. Jackson, 393 F.3d 681,
687-88 (6th Cir. 2005) (quoting United States v. Bakker, 925 F.2d
728, 741 (4th Cir. 1991)) (internal alteration modified).
V.
For the foregoing reasons, we affirm Banks’ conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid in the decisional process.
AFFIRMED
started when his mother and father separated, leaving defendant
without a father figure.
9