United States v. Jason Gilbert , 721 F.3d 1000 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1788
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jason Gilbert, also known as J.D.
lllllllllllllllllllll Defendant - Appellant
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No. 12-1790
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Allen Clark
lllllllllllllllllllll Defendant - Appellant
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No. 12-1791
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Sterling Omar Platt
lllllllllllllllllllll Defendant - Appellant
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No. 12-2009
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Antonio Torel Person, also known as Tony
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: June 11, 2013
Filed: August 6, 2013
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Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.
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GRUENDER, Circuit Judge.
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Jason Gilbert, Allen Clark, Antonio Person, and Sterling Platt appeal their
convictions related to a series of attempted robberies and one completed robbery of
an armored car service in the Little Rock, Arkansas, area. Gilbert also appeals his
sentence. We affirm.
I. Background
In 2005, Quintus Williams worked as a driver and deliveryman for Arkansas
Armored Car (“AAC”), an armored car service that transports currency and negotiable
instruments on behalf of banks and other businesses. While employed by AAC,
Williams asked several co-workers how they would react if robbed. Most responded
that they would not resist an attempted robbery. Based on their responses, Williams
concluded that it would be easy to rob an AAC truck, and he began to plan a robbery.
Williams identified two suitable locations for robbing AAC: a U.S. Bank branch in
North Little Rock, Arkansas, and AAC’s main office in Little Rock, Arkansas.
Williams determined that the U.S. Bank branch was an attractive target because
the AAC guard typically had to wait outside the bank’s door holding bags of cash for
fifteen to twenty minutes before being allowed inside. Additionally, AAC usually
scheduled the U.S. Bank delivery during the morning, when there was little traffic on
the surrounding roads. The bank also was close to the border between Little Rock
and North Little Rock. Williams believed that it would be easy to flee beyond the
North Little Rock Police Department’s jurisdiction. The second target, AAC’s main
office, was attractive because Williams knew that the AAC security guard who
worked the early morning shift was the oldest on AAC’s staff. This guard had
indicated to Williams that he was “not going to try to defend [the] money if somebody
tries to take it.”
Williams recruited Jason Gilbert, Mark Davis, Sterling Platt, Allen Clark, and
Antonio Person to participate in the robbery. Before attempting the robbery, the
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group had several meetings during which Williams shared his plans and solicited
suggestions. They ultimately agreed to make their first attempt at the U.S. Bank
branch. Davis and Person were assigned to arrive at the bank early and wait for the
AAC truck to arrive. After the driver disembarked with the money, they planned to
“push him over, grab the money, run back to the getaway car, and get back to the
Little Rock side.” Gilbert, a police officer, listened to his police radio during the
attempt and was prepared to alert the other men if a police car was inbound. This
group attempted to execute this plan at the U.S. Bank branch on at least three
occasions, and for various reasons each attempt was abandoned.
After the unsuccessful attempts to rob the U.S. Bank delivery, the group
planned a similar robbery at AAC’s main office for September 23, 2005. The plan
was to surprise and subdue the older guard as he arrived for the morning shift, use his
key to unlock AAC’s doors, disable the alarms, and “just get the money.” Clark acted
as a lookout, while Platt and Davis intended to subdue the security guard and unlock
the doors. Gilbert waited in the getaway truck and listened in on his police radio.
Williams and Person waited outside the building to act as back-up. This attempt
failed when Davis and Platt were unable to confront the AAC guard before he got
inside the building. After the failed attempt at AAC’s main office, the group again
attempted unsuccessfully to rob an AAC delivery at the U.S. Bank branch.
Shortly after these failed attempts, Williams moved to Dallas, Texas, in early
2006. However, Person and Gilbert stayed in contact with Williams, asking him on
several occasions about “times and dates and truck numbers” and “how much money
would be where.” Sometime in 2006, Person recruited Oscar Holmes to assist in
another robbery attempt. Person told Holmes that he “had this police person” that
would listen to a police radio during the robbery “so he could alert us where the
police would be” and that he was familiar with AAC’s delivery schedule because he
knew one of AAC’s employees.
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According to Holmes’s testimony, he and Person cased the U.S. Bank branch
for “almost a year” before they set out to attempt another robbery. In this attempt,
Holmes was responsible for driving the getaway car while Person was responsible for
robbing the AAC driver. Holmes and Person then intended to drive away, transfer
the money to Person’s car, burn the getaway car, and flee in Person’s car. Person and
Holmes abandoned their first attempt when a policeman drove by during the U.S.
Bank delivery. After this attempt, Person flew to Dallas and returned to Arkansas
with Williams’s truck, which Person and Holmes planned to use during another
attempted robbery at the U.S. Bank branch. Person told Holmes that he got the truck
from one of his partners, who he said was a “man on the inside.” During yet another
robbery attempt, a police car again drove by the U.S. Bank during AAC’s delivery,
and Person and Holmes abandoned their planned robbery.
Person then recruited his cousin, Eric Owens, to assist with the robbery. On
the morning of September 10, 2007, Owens and Person parked Person’s car at the bus
station where Holmes worked and walked to the North Little Rock City Hall. From
city hall, they could see the AAC truck arrive at the U.S. Bank branch to make its
delivery. When the AAC truck arrived, Owens and Person robbed the deliveryman
at gunpoint, ran to the bus station to change clothes, emptied the cash into a duffel
bag, and drove away in Person’s car. Zach Moore, a friend of Gilbert’s, testified that
Gilbert admitted to listening to his police radio while Owens and Person robbed the
AAC driver.
The next morning, Shirley Abel, a city employee who worked at North Little
Rock City Hall, contacted the North Little Rock Police Department to report that she
saw two men standing outside her office window immediately before the robbery.
Abel told the police that the men caught her attention because one of them “kept
glancing in the window. . . . And they stood out there for a fairly good amount of
time, about 20, 30 minutes.” Later that afternoon, police officers showed Abel a six-
person photographic lineup that included a picture of Person. Abel circled Person’s
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photograph, indicating that the man in the photograph “looked an awful lot like the
gentleman” she saw standing outside her window. Abel testified to her identification
of Person at a suppression hearing and at trial.
On February 6, 2008, a federal grand jury returned an indictment charging
Person, Owens, and Holmes with various offenses related to the September 10, 2007
robbery. At the time of the indictment, the Government did not know about the
attempted robberies that occurred as far back as 2005. Owens and Holmes pled guilty
on September 10 and 11, 2009, respectively, and both agreed to cooperate with the
Government’s investigation and testify at trial.
Person’s trial began in February 2010 but was continued until November 2010
due to a mistrial. Before Person’s retrial, the FBI interviewed Quintus Williams, who
agreed to cooperate with the Government’s investigation in exchange for immunity.
Through Williams, the Government learned about the earlier series of attempted
robberies. A grand jury subsequently returned a superseding indictment charging
Gilbert, Clark, Platt, Davis, and Person with conspiring to obstruct commerce
beginning in 2005. See 18 U.S.C. § 1951(a). The superseding indictment also
charged Person with obstructing commerce, see id., and brandishing a firearm during
a crime of violence, see 18 U.S.C. § 924(c)(1)(A)(ii). Davis and Platt pled guilty and
agreed to testify against the remaining defendants, who proceeded to trial.1
1
Platt’s plea was conditioned on the jury’s special finding that the Government
established the existence of a single conspiracy between 2005 and 2007. The district
court deferred acceptance of Platt’s guilty plea until after the jury returned its verdict
and announced its special finding. We find this plea agreement to be unusual and
question whether Federal Rule of Criminal Procedure 11 allows for such an
agreement. We do not reach the issue in this case, however, because neither Platt nor
the Government challenges the plea agreement.
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At the close of the Government’s evidence, Clark and Gilbert moved for a
judgment of acquittal, arguing that the Government failed to establish the existence
of a single conspiracy between 2005, when the first attempted robbery occurred, and
2007, when Person, Holmes, and Owens were arrested. The district court2 denied
their motions, concluding that the Government presented enough evidence for a
reasonable jury to find that the series of attempted robberies beginning in 2005 was
part of the same conspiracy as the 2007 attempted robberies and completed robbery.
A jury found Person, Clark, and Gilbert guilty on all counts. The jury also
marked the special verdict form to indicate a finding “that the government ha[d]
proven that there was one conspiracy to interfere with commerce spanning from 2005
to 2007.” The district court sentenced each defendant to a substantial prison term,
with Gilbert receiving a two-level sentencing guidelines enhancement for abusing a
position of trust. See U.S.S.G. § 3B1.3.
Platt, Gilbert, and Clark challenge the sufficiency of the evidence, arguing that
the Government failed to establish the existence of a single conspiracy. Gilbert,
Clark, and Person appeal the district court’s refusal to allow them to cross-examine
Platt about an alleged murder involving Williams. Person appeals the denial of his
motion to suppress his eyewitness identification by Shirley Abel. Finally, Gilbert
appeals his sentence.
2
The Honorable J. Leon Holmes, then Chief Judge, United States District Court
for the Eastern District of Arkansas.
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II. Discussion
A. Sufficiency of the Evidence – Single Conspiracy
“Whether the Government’s proof at trial established only a single conspiracy
or multiple conspiracies ‘is determined by the totality of the circumstances, and
because it is a question of fact, we draw all reasonable inferences in favor of the
verdict.’” United States v. Slagg, 651 F.3d 832, 841 (8th Cir. 2011) (quoting United
States v. Radtke, 415 F.3d 826, 838 (8th Cir. 2005)). “Relevant factors ‘includ[e] the
nature of the activities involved, the location where the alleged events of the
conspiracy took place, the identity of the conspirators involved, and the time frame
in which the acts occurred.’” Radtke, 415 F.3d at 838-39 (alteration in original)
(quoting United States v. McCarthy, 97 F.3d 1562, 1571 (8th Cir. 1996)). “A single
conspiracy may be found when the defendants share a common overall goal and the
same method is used to achieve that goal, even if the actors are not always the same.”
United States v. Bascope-Zurita, 68 F.3d 1057, 1061 (8th Cir. 1995). Reversal is
warranted only where no reasonable jury could have found that a single conspiracy
existed. See United States v. England, 966 F.2d 403, 406-07 (8th Cir. 1992).
Platt, Clark, and Gilbert challenge their convictions, arguing that the
Government presented insufficient evidence to establish the existence of a single
conspiracy. The defendants assert that the robbery attempts led by Williams in 2005
that included Person, Platt, Clark, and Gilbert were part of a conspiracy distinct from
the 2007 attempts, which involved only Person, Holmes, and Owens. Contrary to the
defendants’ arguments, however, “[m]ultiple groups and the performance of separate
crimes or acts do not rule out the possibility that one overall conspiracy exists.”
United States v. Dijan, 37 F.3d 398, 402 (8th Cir. 1994) (quoting United States v.
Roark, 924 F.2d 1426, 1429 (8th Cir. 1991)). Drawing all reasonable inferences in
favor of the verdict, the evidence at trial established that each defendant participated
in a single, ongoing conspiracy to rob an AAC delivery truck in the Little Rock area
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between 2005 and 2007. Williams, who provided insider information about key
aspects of AAC’s operations and who in 2005 hatched the plan to rob AAC,
continued his involvement through 2007, and at least two of the charged co-
conspirators, Person and Gilbert, continued to pursue the robbery of an AAC truck
after Williams moved to Dallas in 2006. Both Person and Gilbert contacted Williams
on numerous occasions to find out when AAC made deliveries and which trucks had
the most money. Holmes also testified that he and Person used Williams’s truck in
a failed robbery attempt in 2007. Moreover, the U.S. Bank branch was the target of
both the 2007 attempts and the 2005 attempts, and the 2007 and 2005 attempts
followed the same plan. During each attempted robbery, the conspirators waited for
an AAC truck to arrive for a delivery, hoping to rush the driver and steal the money
before he could enter his destination safely. Additionally, there is evidence that
Gilbert monitored his police radio during robbery attempts in both 2005 and 2007.
This evidence demonstrates that “the defendants share[d] a common overall goal and
[used] the same method . . . to achieve that goal, even if the actors [were] not always
the same” throughout the conspiracy. Bascope-Zurita, 68 F.3d at 1061.3 A
reasonable jury therefore could find the existence of a single conspiracy.4
B. Cross-Examination of Platt
Gilbert, Clark, and Person also argue that the district court abused its discretion
by limiting their cross-examination of Platt. “We will not reverse a district court’s
decision to limit cross-examination ‘unless there has been a clear abuse of discretion
3
Neither Platt nor Clark nor Gilbert argues on appeal that he affirmatively
withdrew from the conspiracy. Any such argument is therefore waived. See United
States v. Brooks, 175 F.3d 605, 606-07 (8th Cir. 1999).
4
Based on our conclusion that the Government presented sufficient evidence
for a reasonable jury to find the existence of a single conspiracy, we need not address
the Government’s argument that Platt waived his right to appeal the jury’s special
finding.
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and a showing of prejudice to the defendant.’” United States v. Stroud, 673 F.3d 854,
860 (8th Cir. 2012) (quoting United States v. Oaks, 606 F.3d 530, 540 (8th Cir.
2010)), cert. denied, 568 U.S. ---, 133 S. Ct. 1581 (2013). “The Sixth Amendment
guarantees the defendant ‘an opportunity for effective cross-examination,’ but the
court ‘retain[s] wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination . . . .’” Id. (alterations in
original) (quoting Oaks, 606 F.3d at 539-40). “To show a Confrontation Clause
violation, a defendant must show that ‘a reasonable jury might have received a
significantly different impression of a witness’s credibility had counsel been allowed
to pursue the proposed line of cross-examination.’” Id. (quoting Oaks, 606 F.3d at
540).
Gilbert, Clark, and Person each desired to question Platt regarding his
knowledge of a murder that Williams allegedly committed in Dallas. The defendants
argue that the alleged murder was relevant and probative because it would suggest
that Platt was afraid of Williams and that Williams “engineered” Platt’s testimony.
The district court did not allow the defendants to cross-examine Williams about the
murder because it determined that the “danger of unfair prejudice substantially
outweigh[ed] the probative value” of the statements about the alleged murder. See
Fed. R. Evid. 403.
The jury did, however, hear other evidence that substantiated Platt’s fear of
Williams. The court allowed the defendants to cross-examine both Williams and Platt
regarding various threats Williams made to kill several accomplices to prevent them
from “snitching.” Platt testified that he “feared for [his] life” based on Williams’s
threats. Because it heard this unequivocal testimony regarding Platt’s fear of
Williams, the jury would not have received a “significantly different impression” of
Platt’s testimony if the district court had allowed the defendants to cross-examine
Platt about Williams’s alleged involvement in a murder. See Stroud, 673 F.3d at 860.
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In the absence of any showing of prejudice, the district court did not commit
reversible error by limiting the cross-examination of Platt.
C. Person’s Motion to Suppress the Identification
Person also appeals the denial of his motion to suppress the eyewitness
identification by Abel, arguing that the photographic lineup was impermissibly
suggestive because Person was the only person in the lineup who wore a gold
necklace and who also was shirtless. “When considering the admissibility of a photo
lineup identification, we examine 1) whether the identification procedure is
impermissibly suggestive, and 2) whether under the totality of the circumstances the
suggestive procedure creates a very substantial likelihood of irreparable
misidentification.” United States v. Granados, 596 F.3d 970, 974 (8th Cir. 2010).
“We review this constitutional [due process] claim de novo.” United States v. Jones,
535 F.3d 886, 891 (8th Cir. 2008).
We conclude that the photographic lineup was not impermissibly suggestive.
The lineup consisted of six photographs. Each photograph is a head shot that depicts
its subject from the neck up. The six subjects have similar facial features and similar
skin tones. Each is an African-American male with short hair and a small amount of
facial hair on the upper lip, chin, or both. All men have similar, neutral facial
expressions. The photographs are proportional in size to one another. Across all
photographs, the background color and lighting is consistent. Person is depicted
wearing no shirt, and the five other men all are depicted wearing different shirts. One
is wearing a yellow shirt, one is wearing a white tank top, one is wearing a black
shirt, one is wearing a red shirt, and one is wearing a grey shirt. Though Person
accurately states that he is the only individual depicted without a shirt, he does not
explain how his shirtless photograph is impermissibly suggestive. When Abel
observed Person standing outside of North Little Rock city hall, he was not shirtless.
Abel testified that he was wearing a blue hooded sweatshirt, and she never mentioned
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a gold necklace in her description of Person to the police. Moreover, Person points
to no evidence in the record suggesting that Abel’s identification was influenced by
the fact that Person was depicted as shirtless or with a necklace. Compare United
States v. Harris, 636 F.3d 1023, 1026-27 (8th Cir. 2011) (concluding that a
photographic lineup was not impermissibly suggestive where the defendant’s
photograph had a unique attribute but the defendant failed to explain why the unique
attribute suggested that the defendant committed the crime) with United States v.
Baykowski, 583 F.2d 1046, 1047-48 (8th Cir. 1978) (holding that a photo array was
impermissibly suggestive where the victim identified a burglary defendant based on
his sweater worn in the array, which was stolen in the burglary). We affirm the denial
of Person’s motion to suppress. See United States v. Donelson, 450 F.3d 768, 773
(8th Cir. 2006) (holding that a photo array was not impermissibly suggestive where,
as here, the array “contained pictures of six individuals with similar physical
characteristics and no other identifying information” (citing Manson v. Brathwaite,
432 U.S. 98, 117 (1977))).5
D. Gilbert’s Sentence
At Gilbert’s sentencing, the district court applied a two-level enhancement
based on its finding that Gilbert abused a position of trust by using his police radio
to monitor law enforcement activity while his accomplices attempted to rob an AAC
truck. See U.S.S.G. § 3B1.3. “Whether the defendant may occupy a position of trust
is a question of law; if so, whether [he] did is a question of fact.” United States v.
Hayes, 574 F.3d 460, 478 (8th Cir. 2009). “We review the legal component of the
5
Because we conclude that the lineup was not impermissibly suggestive, we
need not address Person’s argument that the identification procedure created a
substantial likelihood of irreparable misidentification. See Harris, 636 F.3d at 1026(“Only if the photographic lineup was impermissibly suggestive must we proceed to
analyze, under the totality of the circumstances, whether the impermissibly suggestive
lineup created a likelihood of misidentification violating due process.”).
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abuse of trust determination de novo and the district court’s factual findings for clear
error.” United States v. Anderson, 349 F.3d 568, 573 (8th Cir. 2003). “Because
police officers clearly occupy positions of public trust, the inquiry in most cases is
whether defendant used a police officer’s special knowledge or access to facilitate or
conceal the offense.” United States v. Baker, 82 F.3d 273, 277 (8th Cir. 1996).
Gilbert concedes that he occupied a position of trust because he was a police officer
but argues that the district court clearly erred in finding that he abused his position
of trust to facilitate the conspiracy.
The district court found that “Mr. Gilbert’s job in the conspiracy was to listen
to the police radio . . . so he could notify the other co-conspirators if there was a
police call that went out and give them the heads-up.” Based on this finding, the
district court concluded that Gilbert’s abuse of his position of trust “did contribute in
some significant way to facilitating the commission of the conspiracy.” This finding
is consistent with the record, as Williams and Davis both testified at trial that one of
Gilbert’s roles in the conspiracy was to listen to his police radio so that he could alert
his accomplices if a patrol car had been dispatched to the location of the robbery. We
therefore conclude that the district court did not clearly err by finding that Gilbert
used his special knowledge or access to facilitate or conceal the offense. See Baker,
82 F.3d at 277.6
III. Conclusion
For the foregoing reasons, we affirm.
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6
Gilbert does not challenge the substantive reasonableness of his sentence.
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