United States v. Bowlson , 148 F. App'x 449 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0775n.06
Filed: September 2, 2005
No. 04-1495
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
ON APPEAL FROM THE UNITED
v. STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
ARTHUR BOWLSON,
Defendant-Appellant.
/
BEFORE: KEITH, BATCHELDER, COLE, Circuit Judges.
KEITH, Circuit Judge. The Defendant-Appellant, Arthur Bowlson, was indicted by a
federal grand jury on five counts of bank robbery, each in violation of 18 U.S.C. § 2113(a), and two
counts of using, carrying, and brandishing a firearm during a crime of violence, each in violation
of 18 U.S.C. § 942(c)(1)(A)(ii). On February 11, 2003, a jury convicted Bowlson of all seven counts
of the indictment. More than a year later, on February 24, 2004, the district court sentenced
Bowlson to concurrent sentences of 121 months on counts one through five, a consecutive term of
seven years on count six, and a consecutive term of twenty-five years on count seven. On appeal,
Bowlson challenges his multiple convictions and his sentencing by the district court. For the reasons
set forth below, we AFFIRM Bowlson’s convictions, VACATE his sentence, and REMAND this
case for re-sentencing by the district court.
I. BACKGROUND
During the period between May 1 through September 18, 2001, Bowlson committed five
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bank robberies. The first bank robbery occurred on May 1, 2001, at the Old Kent Bank on Harper
Avenue in Clinton Township, Michigan. Bank employees could not identify Bowlson because he
was wearing a ski mask over his face; he also had placed tape over the tips of his fingers apparently
to avoid leaving his fingerprints at the scene. The employees, however, observed the masked
individual leap over the teller counter, grab a teller by the arm, and point a gun at the teller, all prior
to escaping with $6,411. Bowlson’s wife later admitted that she had driven Bowlson to the Old Kent
Bank that day, waited in the car while he went inside, and that he returned to the car with a gun and
a fisherman’s hat stuffed with cash.
On June 1, 2001, Bowlson robbed another branch of the Old Kent Bank. The bank’s
surveillance camera recorded parts of this robbery, showing that the robber wore a ski mask over
his head and had placed tape over his fingertips. Bowlson leaped over the teller counter and escaped
with $7,434.
On July 25, 2001, Bowlson demanded $2,631 from tellers at the Huntington National Bank
in Mt. Clemens, Michigan. Again, he wore a ski mask over his head and tape on his fingers as he
leaped over the teller counter and took money from the tellers’ drawers. On this occasion, one of
the tellers successfully gave Bowlson a packet of “bait bills” containing a dye pack. At about the
time Bowlson was leaving the bank, a passerby observed a “smoke bomb” explode inside a blue
Ford Taurus and then observed a bag being thrown out of the car window. Where the bag landed,
the authorities discovered red-dyed currency. The authorities also recovered a baseball hat and a
ski mask. On the day in question, Bowlson had borrowed his wife’s blue Taurus, and she found a
red stain on the floor of the vehicle consistent with the chemicals in the dye pack.
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Approximately two weeks later, on August 6, 2001, Bowlson robbed the Huntington
National Bank on Harper Avenue in Clinton Township. Bowlson entered the bank wearing a mask
and carrying a child’s pink backpack, leaped over the teller counter, and took $11,481 from the
tellers’ drawers while pointing a gun in the faces of the two tellers. Police later identified Bowlson’s
palm prints on the counter he jumped over.
Following his fourth robbery, Bowlson recruited some of his friends to commit bank
robberies with him. He told Robert Moore that he had “hit” banks before, sometimes with a note
and sometimes with a gun, and that he got more money when he used a gun. The fifth robbery took
place on September 18, 2001, at the National City Bank on Harper Avenue in St. Clair Shores,
Michigan. Moore drove the vehicle transporting Bowlson, while Amont Jefferson and Marco
Houston were supposed to “run interference” in a second car to facilitate Moore and Bowlson’s
escape. On the morning of September 18, Houston borrowed Jefferson’s girlfriend’s white Mercury
Sable and then picked up Bowlson at a hotel where he and his wife had spent the night. Moore
borrowed his girlfriend’s green Ford Focus, but the men later exchanged cars prior to arriving at the
bank. Jefferson and Houston followed Bowlson to the bank in the Focus. Bowlson first sent
Jefferson inside to see whether there was bulletproof glass and to observe the number of people who
were inside. Jefferson and Houston then parked the green Ford Focus across the street while
Bowlson went inside, and Moore drove around to the alley to wait for him.
As in the previous heists, Bowlson leaped over the teller counter, wearing a black ski mask
and holding a duffle bag in one hand and a gun in the other. He collected $12,594, including a
packet of bills from which the serial numbers had been recorded. As Bowlson exited the bank, a
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private citizen, Donald Hurst, observed him get into a white car that was sitting in an alley with the
engine running. When another bank customer told Hurst that Bowlson had just robbed the bank,
Hurst jumped into his truck and called the police while he followed the suspected bank robbers.
Police joined the chase and followed the white Sable down a major street into the next city, Grosse
Pointe Woods, where the car eventually crashed into a traffic island. Bowlson and Moore dropped
a bag outside the car and ran into a nearby school where they were finally apprehended. The
authorities recovered stolen currency from the car, a handgun in the discarded bag, and a black mask
and other clothing in another bag. Although Bowlson was initially charged only for the fifth bank
robbery, he was later turned over to federal authorities to whom he confessed that he had committed
all five bank robberies.
II. CHALLENGES TO BOWLSON’S BANK ROBBERY CONVICTIONS
We address each of Bowlson’s arguments against his convictions.
A. Sufficiency of the Evidence
Bowlson contends that the government did not submit sufficient evidence to sustain a
conviction against him because, he says, the government failed to: show that the Old Kent banks
were insured by the Federal Deposit Insurance Corporation (FDIC), present any eyewitness that
could positively identify him as the robber, or produce the actual gun used in the bank robberies.
The government counters that it presented a bank witness who testified with regard to the bank’s
FDIC insured status, and that the other evidence presented amply proved not only Bowlson’s
identity as the robber but also that he used a gun in the commission of these offenses.
Bowlson did not move, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for
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a judgment of acquittal prior to the jury deliberations. In such a case, this court reviews the record
only for plain error resulting in a manifest miscarriage of justice. United States v. Swidan, 888 F.2d
1076, 1080 (6th Cir. 1989); United States v. Cox, 957 F.2d 264, 265 (6th Cir. 1992). In reviewing
a claim against the sufficiency of the evidence, we must determine whether, after reviewing the
evidence in the light most favorable to the prosecution, 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); Swidan, 888 F.2d at 1080.
Here, Bowlson argues that the government did not show that the Old Kent banks were FDIC
insured. Bowlson’s claim, however, contradicts the record. The record reveals that the government
called as a witness the assistant vice president of Fifth Third Bank who testified that the deposits of
its predecessor, the Old Kent Bank, were insured by the FDIC.
Similarly, Bowlson’s claim that the government did not produce an eyewitness who could
positively identify him must be rejected. The government called Bowlson’s wife, who testified that
she drove him to the first bank and that he returned to the car with a gun and money. Robert Moore,
who participated in the fifth bank robbery with Bowlson, identified Bowlson in the courtroom.
Bowlson used a distinctive mode of operation in all of the robberies; he wore a ski mask, taped his
fingertips, and leaped over the teller counter. In light of all of the evidence at trial, the jury
reasonably concluded that Bowlson was the robber without an eyewitness.
Bowlson’s argument that the government did not introduce the actual firearm during the trial
can also be rejected. In addition to the above evidence, two bank tellers and a bank customer all
testified that the robber used a gun. The gun was visible as well in the banks’ surveillance cameras.
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Thus, the evidence was sufficient to support Bowlson’s convictions.
B. Newly Discovered Evidence
Bowlson next claims that, after the trial, he learned for the first time that the officers had
interviewed Brent Crowell. Robert Moore testified at trial that he, Bowlson, and Houston all went
to Crowell’s home to obtain a gun. According to Moore, Crowell was unwilling to provide a gun,
so they stole it from him by deception. Crowell’s proposed testimony was that he never owned a
gun. On appeal, Bowlson contends that Crowell’s contradiction of Moore could have revealed him
(Moore) as a liar to the jury, which in turn could have discarded the remainder of his testimony.
“A motion for a new trial based on newly-discovered evidence should be granted when the
defendant has demonstrated that (1) the new evidence was discovered after trial; (2) the evidence
could not have been discovered earlier with diligence; (3) the evidence is material and not merely
cumulative or impeaching; and (4) the evidence would likely produce an acquittal.” United States
v. Hopper, 384 F.3d 252, 258 (6th Cir. 2004) (citation omitted). We review a district court’s denial
of such a motion for an abuse of discretion. Id.
Applying these principles, Bowlson’s challenge must be rejected. Bowlson knew of
Crowell’s existence prior to trial and has failed to show that he could not have discovered Crowell’s
planned testimony earlier. Moreover, Crowell’s testimony only concerned the origins of the firearm
used in the commission of the crime. As set forth above, the testimony of other witnesses and other
evidence sufficiently supports the fact that a firearm was used. Bowlson now seeks Crowell’s
testimony in an attempt merely to impeach Moore’s account of what occurred. He has not explained
how Crowell’s testimony amounts to more than merely impeaching evidence. In light of the
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substantial evidence introduced against Bowlson at trial, we do not conclude that any testimony by
Crowell would likely have resulted in Bowlson’s acquittal.
C. Suppression of Confession
Bowlson was initially charged by state authorities only with the fifth bank robbery. Counsel
was appointed to represent him on that charge. When the federal government decided to prosecute,
the state charge was dismissed and Bowlson was subsequently arrested and interviewed by the
Federal Bureau of Investigation (FBI). During the FBI interview, Bowlson confessed to all five
robberies and admitted using a gun. He now contends that his confession to the FBI must be
suppressed because any questioning of him after the appointment of his counsel on the state charge
violated the Sixth Amendment.
“The Sixth Amendment right . . . is offense specific. It cannot be invoked once for all future
prosecutions, for it does not attach until a prosecution is commenced. . . . And just as the right is
offense specific, so also its . . . effect of invalidating subsequent waivers in police-initiated
interviews is offense specific.” McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). In this case, the
government agreed that it would not introduce into evidence Bowlson’s confession to the fifth
robbery. Since the state charged Bowlson and appointed him counsel only for the fifth robbery, his
Sixth Amendment right to counsel only applied to that offense. Accordingly, the district court
properly denied Bowlson’s motion to suppress the portion of his confession regarding the other
robberies that was offered by the government.
D. Racial Composition of the Jury
Bowlson claims that he objected in the district court to the fact that, despite the racial
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makeup of the surrounding area, his jury venire was composed of only one African American. He
further complains that the only African American who was chosen for the jury was later dismissed
as one of the alternates. According to Bowlson, these facts “constitute a prima facie example of a
violation of the cross section [requirement].” Appellant’s Br. at 20.
“Defendants are not entitled to a jury of any particular composition, but the jury wheels,
pools of names, panels, or venires from which juries are drawn must not systematically exclude
distinctive groups in the community and thereby fail to be reasonably representative thereof.”
United States v. Hill, 146 F.3d 337, 343 (6th Cir. 1998) (quoting Taylor v. Louisiana, 419 U.S. 522,
528 (1975)).
A prima facie case of a fair cross section violation requires the defendant to show:
1) that the group alleged to be excluded is a “distinctive” group in the community;
2) that the representation of this group in venires from which juries are selected is
not fair and reasonable in relation to the number of such persons in the community;
and 3) that this underrepresentation is due to systematic exclusion of the group in the
jury-selection process.
Id. at 343 (citing Duren v. Missouri, 439 U.S. 357, 364 (1979)). Thus, to establish a constitutional
violation, Bowlson has to show that the jury selection process systematically excluded African
Americans. He has not done so. He has not even alleged as much. Accordingly, he has no viable
claim.
E. Jury Instruction on Unanimous Verdict on § 924(c) Offenses
Here, Bowlson argues that his convictions under 18 U.S.C. § 924(c) must be vacated because
the jury was not instructed that they needed to unanimously determine whether he possessed, used,
and carried the firearm. Bowlson, however, did not object to this jury instruction in the district
court. “When a defendant fails to object to the lack of a unanimity instruction, the court reviews the
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instructions for plain error.” United States v. Sims, 975 F.2d 1225, 1240 (6th Cir. 1992) (citations
omitted); see also United States v. DeJohn, 368 F.3d 533, 540 (6th Cir. 2004). “In analyzing the
need for a specific unanimity instruction, this Court has held, ‘The touchstone has been the presence
of a genuine risk that the jury is confused or that a conviction may occur as the result of different
jurors concluding that a defendant committed different acts.’” Sims, 975 F.2d at 1240-1241 (quoting
United States v. Duncan, 850 F.2d 1104, 1114 (6th Cir. 1988)).
In the present case, Bowlson was convicted of two counts of using, carrying, and brandishing
a firearm during the commission of a crime. The government contends that a unanimity instruction
was unnecessary because the evidence demonstrated that Bowlson committed all three acts
punishable under the statute; that is, he used, carried, and brandished the firearm. We agree. This
case does not present a genuine risk that the jury was confused or that different jurors convicted
Bowlson of committing different acts. The witness testimony and other evidence presented at trial
supported the government’s claim that Bowlson used, carried, and brandished a firearm during the
bank robberies. As such, there was no danger that the jurors failed to agree on the criminal behavior
involved here, and the district court’s failure to give the unanimity instruction for which Bowlson
now advocates did not constitute plain error.
E. Whether Bowlson Was Denied a Fair Trial Because Jurors Viewed Him in Shackles
Finally, Bowlson argues that different members of the jury observed him in shackles on two
occasions. The government concedes that at least one juror may have been able to observe Bowlson
while he was in shackles and being transported to or from the courtroom. But Bowlson identified
to the court a second juror whom he believed had observed him at a separate time. The district court
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questioned each of these jurors. The district court also offered to give a curative instruction to the
full jury and to excuse the jurors who Bowlson thought had viewed him in shackles. Bowlson
declined the offer to excuse the jurors, and indicated he wanted the court to give a cautionary
instruction at the end of the case. Bowlson did not request any other relief in the district court.
This court addressed a claim similar to Bowlson’s in United States v. Moreno, 933 F.2d 362
(6th Cir. 1991), where the court undertook the following analysis:
We will not disturb the district court’s denial of defendants’ motion for mistrial
absent a showing of abuse of discretion. Exposure of the jury to a defendant in
shackles requires a mistrial only when the exposure is so ‘inherently prejudicial’ as
to deny the defendant’s constitutional right to a fair trial. We have distinguished the
inherent prejudice to a defendant who is shackled while in the courtroom from a
defendant who has been observed in shackles for a brief period elsewhere in the
courthouse. Defendants are required to show actual prejudice where the conditions
under which defendants were seen were routine security measures rather than
situations of unusual restraint such as shackling of defendants during trial. Courts
have expressed a preference for remedial action after an accidental observation of a
defendant in custody.
In the instant case, defendants were inadvertently observed in shackles while being
transported by the marshals and the jury learned of defendants’ custodial status
through trial testimony. The record fails, however, to support defendants’ claims of
inherent prejudice warranting mistrial. Their claims are further undermined by the
district court’s instruction to the jury that the custodial status of the defendants was
not indicative of guilt or innocence and, therefore, should be disregarded. There is
the presumption that juries will follow such curative instructions. Because
defendants failed to show prejudice, we find defendants’ contention that the district
court abused its discretion in denying their motions for mistrial meritless.
Id. at 368. (internal citations and quotations omitted).
Importantly in the case at bar, Bowlson did not request a mistrial. Bowlson’s complaint that
jurors may have seen him briefly as he was transported to and from the courtroom is not a sufficient
basis to justify setting aside his conviction. Although some level of prejudice may be inherent in
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jurors viewing a criminal defendant in shackles, here the district court properly instructed the jurors
who may have observed the defendant in shackles to disregard what they saw and not to talk about
their observations to other jurors. The district court also offered Bowlson other relief, such as
excusing those jurors whom Bowlson thought had observed him in shackles, all of which Bowlson
rejected. Thus, Bowlson has failed to establish sufficient prejudice to support the reversal of his
convictions.
III. SENTENCING
Finally, Bowlson challenges his sentencing under the federal sentencing guidelines because,
he argues, the federal guidelines are unconstitutional. Following the initiation of this appeal, the
Supreme Court decided United States v. Booker, __ U.S. __, 125 U.S. 738 (2005). Thereafter, in
a supplemental letter brief submitted to this court on May 12, 2005, prior to oral argument in this
case, the government “determined that it will not oppose a remand for re-sentencing under the
Sentencing Reform Act as amended by Booker.” Thus, we remand this case for re-sentencing in
accordance with United States v. Booker, 125 U.S. 738 (2005).
IV. CONCLUSION
For the foregoing reasons, we AFFIRM Bowlson’s convictions, VACATE his sentence, and
REMAND this case to the district court for re-sentencing.
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