United States v. Haslip

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 24 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-3205

STEPHEN G. HASLIP,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 96-10071-01)

Debra L. Barnett (Jackie N. Williams, United States Attorney, with her on the
brief), Assistant United States Attorney, Wichita, Kansas, for Plaintiff-Appellee.

Roger L. Falk, Wichita, Kansas, for Defendant-Appellant.

Before PORFILIO, BRORBY and MURPHY, Circuit Judges.

BRORBY, Circuit Judge.

Mr. Steven G. Haslip appeals his conviction for bank robbery, use of a

firearm during the commission of that bank robbery, and possession of a firearm

after a prior felony conviction. He asserts (1) there was insufficient evidence to
sustain the jury’s verdict, (2) the trial court erred by admitting evidence of a prior

conviction for impeachment purposes, and (3) the trial court erroneously

instructed the jury. Mr. Haslip also appeals the 322-month prison sentence

imposed as punishment for those crimes, claiming he is not an “armed career

criminal” under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291, and affirm both the conviction and

sentence.

BACKGROUND

The Fall River State Bank in Fall River, Kansas, was robbed on the

morning of October 17, 1996. Two men entered the bank; one approached Alicia

Ashenfelter, the teller stationed closest to the front door, and requested two rolls

of dimes. The second man approached tellers Peggy Anderson and Christine Burt

at the next teller window. As Ms. Ashenfelter turned to Ms. Anderson to request

two rolls of dimes, she noticed the second man, later identified as Mr. Haslip, was

pointing a gun at Ms. Anderson. Brandishing the gun and causing it to “click”

twice, Mr. Haslip instructed Ms. Anderson to “[g]ive [him] all of the money.”

Ms. Anderson put money from her station, including the bank’s bait money

into a white or clear plastic bag Mr. Haslip provided. Mr. Haslip then forced Ms.

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Anderson and Ms. Burt toward the vault. He forced Ms. Burt to go into the vault

to retrieve more money and instructed Ms. Anderson to attend to a customer who

appeared in the drive-up lane. After the customer left, Mr. Haslip ordered Ms.

Anderson and Ms. Burt into the vault.

In the meantime, Mr. Haslip’s co-defendant, Mr. Jimmy T. Davis,

instructed Ms. Ashenfelter to place all the money from her teller station into a

blue plastic bag. After she had done so, he ordered her into the vault with Ms.

Anderson and Ms. Burt. The two men then closed and latched the vault door so it

could not be opened from the inside. While in the vault, the tellers activated the

silent alarm and prepared a description of the two robbers. They were released

from the vault when customers entered the bank ten to fifteen minutes later. The

total loss to the Fall River State Bank, a federally insured institution, was

$13,909.00. Ms. Burt, who was conducting a personal financial transaction at the

time of the robbery, also lost $100.00.

Shortly after the robbery, the Wilson County Sheriff placed a roadblock at a

main junction outside Fall River. Approximately one minute after establishing

the roadblock, a Ford Probe crested the hill and approached the roadblock. As

law enforcement officers watched, the car abruptly stopped, turned around, and

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drove away from the roadblock. The Sheriff noticed two people were inside the

car.

The Sheriff and his officers immediately pursued the Ford onto the property

of Mr. Wayne O’Dell. After losing sight of the car for a short time, they found it

abandoned in a brushy area, down the side of an embankment. The car’s engine

was running, the transmission was in drive, the driver’s window was down, and

the passenger door was open. Mr. O’Dell ultimately spotted Mr. Haslip lying

along a fence row. When directed by a Kansas Highway Patrol trooper to stand

up and move toward him, Mr. Haslip stated he was alone, “was just hitchhiking,”

and “wanted to get out of the way” when he saw the police.

Mr. Davis was arrested nearly two hours later, after a Highway Patrol

trooper and K-9 unit found him hiding in trees and bushes on the O’Dell property.

Law enforcement personnel continued to search the property, but found no other

cars or suspects. They discovered the Ford Probe had been stolen from the

driveway of Ms. Teresa Flynn, who lived in a small community outside Fall

River. After getting Ms. Flynn’s consent, officers searched the car and found a

blue plastic bag containing a loaded Smith and Wesson Silver 9mm and a loaded

Dan Wesson .357 magnum revolver. The white plastic bag contained $13,009.00,

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including all the bank’s bait money. The remaining $1,000.00 was never

recovered.

Mr. Haslip and Mr. Davis were tried together on a superseding indictment

charging each with (1) bank robbery in violation of 18 U.S.C. § 2113(a), (2) using

or carrying a firearm during and in relation to a crime of violence in violation of

18 U.S.C. § 924(c)(1), and (3) possession of a firearm after being previously

convicted of a felony in violation of 18 U.S.C. § 922(g)(1).

Each of the three tellers working at the bank on the day of the robbery

testified at trial. Both Ms. Ashenfelter and Ms. Anderson positively identified

Mr. Haslip. Ms. Burt testified she could not say if Mr. Haslip was one of the

robbers or not.

Mr. Haslip testified he did not rob the Fall River Bank, or possess a gun on

the day of the robbery. He claimed he was riding through Kansas with a “Ms.

Parks, or Ms. Parker,” when he bumped into Mr. Davis, an old friend, at a cafe in

Fredonia. According to Mr. Haslip, he and Mr. Davis agreed to go look for a

marijuana field outside of Fredonia, near the O’Dell property. Before Ms. Parks

returned to pick him up, Mr. Haslip heard police radios and voices. He decided to

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walk along the fence line of the O’Dell property close to the highway, and at one

point, laid down next to the fence hoping the police would leave and he could go

home. On cross-examination, Mr. Haslip admitted that although he was looking

for marijuana, he had no gloves, coat, tools or packaging materials. He further

stated he was not going to call “Ms. Parks” to testify on his behalf.

The jury returned a verdict of guilty as charged on both defendants. The

court subsequently sentenced Mr. Haslip to 262 months imprisonment for bank

robbery, 262 months imprisonment for the use of a firearm during the commission

of bank robbery (each 262-month sentence to run concurrently), and 60 months

imprisonment for possession of a firearm by a convicted felon (to run

consecutively to the sentences imposed for counts one and two). Accordingly,

Mr. Haslip’s total term of confinement is 322 months.

DISCUSSION

Sufficiency of Evidence

Mr. Haslip argues the government’s evidence identifying him as one of the

bank robbers was insufficient to support the jury’s guilty verdict. The standard

Mr. Haslip must meet to prevail on this argument is a difficult one, since we

reverse on a sufficiency of the evidence claim “only if no rational trier of fact

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could have found the essential elements of the crime beyond a reasonable doubt.”

United States v. Wacker, 72 F.3d 1453, 1462-63 (10th Cir. 1995). Moreover,

when evaluating the record de novo, we must view the evidence and the

reasonable inferences to be drawn therefrom in the light most favorable to the

government. See United States v. Wolny, 133 F.3d 758, 760 (10th Cir. 1998). We

“may neither weigh conflicting evidence nor consider the credibility of

witnesses.” United States v. Pappert, 112 F.3d 1073, 1077 (10th Cir. 1997)

(internal citation omitted).

The evidence in this case includes the testimony of two bank tellers who

were present when the Fall River Bank was robbed. Both described the robbery

in detail and positively identified Mr. Haslip as one of the robbers. Mr. Haslip

had full opportunity to cross-examine these witnesses as to the certainty of their

identification. Further, Mr. Haslip does not contest he was arrested after being

found lying in a field near the place where law enforcement officers found a car

that had fled from a roadblock. Police retrieved the plastic bags used in the

robbery, the bank’s bait money, and two loaded handguns from that same car.

Viewing this evidence and the reasonable inferences to be drawn therefrom in the

light most favorable to the government, we conclude a rational jury easily could

have disregarded Mr. Haslip’s explanation as to why he was lying in a field near

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the getaway car, and found instead it was Mr. Haslip who robbed the Fall River

Bank in violation of 18 U.S.C. § 2113(a). Accordingly, we hold the evidence was

more than sufficient to support Mr. Haslip’s robbery conviction. 1

Admissibility of Evidence Concerning Prior Felony Conviction

Mr. Haslip next challenges the district court’s decision to allow the

prosecution, on cross-examination, to introduce evidence that he was on “life

parole” in Missouri for a first degree murder conviction. Prior to trial, the court

granted Mr. Haslip’s motion in limine to exclude evidence of his prior

convictions. As grounds for its pretrial ruling, the court stated the evidence was

not relevant to show identity, motive or plan under Fed. R. Evid. 404(b), and thus

the probative value was substantially outweighed by the potential for prejudice.

At the conclusion of the government’s case, the parties presented a

stipulation to the jury that Mr. Haslip previously had been convicted of a felony

punishable by imprisonment of more than one year. Nevertheless, on cross-

examination, the prosecution asked Mr. Haslip about being on parole from the

1
Mr. Haslip’s argument focuses on the insufficiency of the government’s
evidence identifying him as one of the bank robbers. He does not address the
sufficiency of the evidence to support his conviction on the two related firearm
counts. However, on careful review of the record, we nevertheless hold the
evidence was sufficient to support his conviction on those counts as well.

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State of Missouri. Defense counsel objected to this questioning, claiming it was

prohibited by the court’s prior ruling. The court overruled defense counsel’s

objection, concluding evidence of Mr. Haslip’s parole conditions was admissible

for impeachment purposes under Fed. R. Evid. 609(a)(1) – namely, to demonstrate

to the jury that Mr. Haslip was not supposed to leave Missouri without his parole

officer’s permission, and thus, it was unlikely he was casually traveling across

Kansas with a “Ms. Parks” on the day the Fall River Bank was robbed. The court

gave the jury a limiting instruction as to the use of this evidence when it ruled on

defense counsel’s objection (id. at 392-93), and again at the end of the trial.

Mr. Haslip argues that after finding the prejudice of the prior conviction

substantially outweighed the probative value under Rule 404(b), the district court

abused its discretion in admitting the same evidence under Rule 609, which

requires that the probative value of the evidence must outweigh its prejudicial

effect. He insists that because the robbery and firearm charges were entirely

unrelated to the crime for which he was on parole, the prejudicial effect of any

evidence of his prior conviction far outweighed any probative value it may have

concerning his credibility. He further argues the prejudicial effect of such

evidence was enhanced because he relied to his detriment on the court’s pretrial

ruling disallowing such evidence when he decided to take the witness stand.

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 We review the district court’s evidentiary ruling for an abuse of discretion.

United States v. Davis, 40 F.3d 1069, 1073 (10th Cir. 1994), cert. denied, 514

U.S. 1088 (1995). This court has long permitted the government to impeach the

testimony of a criminal defendant who takes the witness stand in the same manner

as any other witness, including reference to prior convictions. United States v.

Smith, 521 F.2d 374, 376 (10th Cir. 1975); see also Burrows v. United States, 371

F.2d 434, 435 (10th Cir. 1967) (“When a defendant in a criminal action takes the

stand, he takes with him his character and reputation. He is supported by more

than his own testimony, for the law presumes that his reputation is good with

respect to all elements involved in the crime with which he is charged. For this

reason it has always been considered proper in cross-examination to interrogate

him as to all collateral matters which would clearly tend to disprove the legal

presumption with which he is clothed.” (Internal citation omitted.)). Mr. Haslip

has offered no persuasive authority, and we have found none, that suggests a pre-

trial 404(b) ruling precludes or restricts this practice, or otherwise forecloses

analysis in a later-presented Rule 609 question.

In fact, the only case we located on point holds that a ruling disallowing

evidence under Rule 404(b) is irrelevant to a subsequent ruling under Rule 609.

United States v. Valencia, 61 F.3d 616, 618-19 (8th Cir. 1995). In Valencia, the

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Eighth Circuit began with the premise that evidentiary rulings must be treated

independently, and then went on to discuss the fact that Rule 404(b) and Rule 609

address two very different situations:

[E]vidence offered under Rule 404(b) is substantive evidence against
the accused, i.e., it is part of the government’s case offered to prove
his guilt beyond a reasonable doubt. Rule 609 evidence on the other
hand has to do with the accused’s ability to tell the truth when
testifying on his or her own behalf. While both rules speak of
“probative value” and “prejudice,” it is critical to note that evidence
offered under the respective rules is probative as to different matters.
The probative character of evidence under Rule 609 has to do with
credibility of a witness, while 404(b) “probativeness” essentially
goes to the question of whether or not the accused committed the
crime charged.

Id. at 619. We fully agree, and thus decline to limit the district court’s discretion

to weigh “probative value” and “prejudice” under Rule 609, independent of any

prior ruling under Rule 404(b).

Finally, we note that at oral argument defense counsel conceded that if the

jury followed the court’s instruction limiting consideration of prior conviction

evidence to credibility determinations, Mr. Haslip is “hard pressed” to identify

any prejudice from the admission of evidence pertaining to his parole status in

Missouri. “A central assumption of our jurisprudence is that juries follow the

instructions they receive.” United States v. Castillo, 140 F.3d 874, 884 (10th Cir.

1998). We therefore presume the jury followed the limiting instructions the court

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gave and considered evidence regarding Mr. Haslip’s parole status in Missouri

only for the purpose of evaluating the credibility of his testimony. Given this

presumption, the circumscribed nature of the prosecutor’s questions, and the

Valencia rationale adopted herein, we hold the district court did not abuse its

discretion by allowing the limited introduction of evidence pertaining to Mr.

Haslip’s prior conviction.

Jury Instructions

Mr. Haslip contends the trial court erred by failing to give several jury

instructions he proposed. He claims the failure to give such instructions in his

proposed form “may have misled the jury and confused the issues, and in turn

prejudiced [him].” We review a district court’s decision whether to give a

particular jury instruction for abuse of discretion. We conduct a de novo review

to determine whether, as a whole, the instructions themselves correctly stated the

applicable law. See United States v. Swallow, 109 F.3d 656, 658 (10th Cir. 1997).

We reverse only if we have a substantial doubt the jury instructions properly

guided the jury in its deliberations and we find prejudice. United States v. Voss,

82 F.3d 1521, 1529 (10th Cir.), cert. denied, 117 S. Ct. 226 (1996). Mr. Haslip

fails to meet this standard.

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 First, Mr. Haslip claims the trial court should have given a separate

instruction cautioning jurors that the testimony of law enforcement officials and

other government employees should not be given any greater weight and their

credibility is subject to impeachment. We agree with the trial court that these

issues were adequately covered by the general instructions pertaining to witness

credibility and impeachment. Mr. Haslip is not entitled to have his specific

instruction given so long as the substance of the proposed instruction was

contained in the charge given to the jury. See Wolny, 133 F.3d at 766.

Second, Mr. Haslip claims he was entitled to an instruction that combined

the presumption of innocence afforded a criminal defendant with the

government’s burden of proving guilt beyond a reasonable doubt. He contends

the trial court erred by bifurcating these two issues into separate instructions.

This claim is frivolous. Mr. Haslip utterly fails to show how the two relevant

instructions were erroneous or inadequate, or how he was prejudiced by the

instructions given, particularly since the jurors were instructed they were not to

“single out one instruction alone as stating the law, but must consider the

instructions as a whole.”

Third, Mr. Haslip claims he was prejudiced because the trial court refused

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an instruction to the effect a defendant cannot be “found guilty merely by the fact

that he associated himself with someone else who the jury finds guilty of criminal

conduct.” He makes a similar argument concerning the trial court’s refusal to

instruct the jury that the Defendant’s mere presence at the scene of a crime does

not indicate the Defendant’s guilt. The trial court concluded these issues were

adequately covered by the “aiding and abetting” instruction. We agree.

Moreover, notwithstanding Mr. Haslip’s conclusory statement the “aiding and

abetting” instruction is “misleading and confusing,” he failed to show how he was

in any way prejudiced by the instruction given.

Fourth, Mr. Haslip claims it is necessary in a joint trial to instruct the jury

to the effect the conduct and statements of one defendant cannot be considered in

regard to the other defendant. He argues if such an instruction is not given, the

jury “possibly” is misled into improperly attributing one defendant’s conduct to

the other. The trial court correctly determined that Mr. Haslip’s proposed

instruction was unnecessary. The instructions as a whole made clear the jury

could not attribute the statements or conduct of one defendant to the other

defendant. Mr. Haslip’s concern the jury is “possibly” misled absent his proposed

instruction is pure conjecture and fails to demonstrate prejudice.

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 Fifth, Mr. Haslip challenges the trial court’s refusal to instruct the jury that

possession of a firearm is a lawful activity. The trial court properly concluded

such an instruction would confuse the jury given the fact Mr. Haslip was charged

with the unlawful possession of a firearm by a felon. The evidence presented at

trial in no way supported Mr. Haslip’s proposed instruction. His argument to the

contrary is frivolous.

Mr. Haslip next complains the trial court gave an instruction on eyewitness

testimony that was substantially different from his proposed instructions and thus,

failed to draw adequate attention to his theory of the case. Here again, Mr. Haslip

was not entitled to a separate instruction on the theory of the defense so long as

the instruction given contained the substance of the proposed instruction. Wolny,

133 F.3d at 766. On review, we conclude the court’s instruction regarding

eyewitness testimony accurately stated the law and did not differ substantively

from Mr. Haslip’s proposed instruction. Accordingly, the trial court did not abuse

its discretion by refusing Mr. Haslip’s proposed instruction.

Finally, Mr. Haslip claims he was prejudiced by the trial court’s refusal to

instruct the jury that an exemplar of his fingerprint may be placed into evidence

and used to compare to fingerprints which are in dispute. He claims this was an

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appropriate instruction because of discussion in the record concerning the fact

there was no fingerprint evidence implicating him. The trial court appropriately

concluded there was no issue before the jury concerning fingerprint identification.

Indeed, Special Agent Robert Beckham testified that none of the fingerprint

evidence collected was consistent with the known fingerprints of either defendant.

Mr. Haslip’s proposed instruction would only have caused confusion in light of

this evidence.

In sum, the jury instructions, read as a whole, accurately stated the

governing law and gave the jury ample understanding of the issues and applicable

standards. Mr. Haslip’s arguments to the contrary must fail.

Sentencing as an “Armed Career Criminal”

As a result of being sentenced under the Armed Career Criminal Act, 18

U.S.C. § 924(e), Mr. Haslip’s sentence was more than doubled from a maximum

of 147 months to 322 months. He challenges the district court’s application of

that Act, claiming his 1969 burglary conviction does not meet the definition of a

“violent felony.” Relying on United States v. Barney, 955 F.2d 635 (10th Cir.

1992), Mr. Haslip asks us to delve beneath the face of the information and

complaint charging him with burglary, to conclude the government failed to prove

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by a preponderance of the evidence that the facts of his particular conviction fall

within the definition of burglary as a “violent felony” set forth in Taylor v. United

States, 495 U.S. 575, 599 (1990).

We review issues regarding the interpretation and application of the Armed

Career Criminal Act de novo. United States v. Romero, 122 F.3d 1334, 1340

(10th Cir. 1997), cert. denied, 118 S. Ct. 1310 (1998). Mr. Haslip is correct the

government must support the propriety of a § 924(e) enhancement by a

preponderance of the evidence. However, it is well-established we use a “formal

categorical approach” when determining whether a prior conviction constitutes a

“violent felony” under the Armed Career Criminal Act. We can look “‘only to the

statutory definitions of the prior offenses, and not to the particular facts

underlying those convictions.’” Romero, 122 F.3d at 1341 (quoting Taylor, 495

U.S. at 600). Applying Taylor, we uphold a § 924(e) sentence enhancement based

on a prior burglary conviction if either (1) the statutory definition of burglary

substantially corresponds to “generic” burglary, or (2) the charging paper and jury

instructions actually required the jury to find all the elements of generic burglary

prior to convicting the defendant. 495 U.S. at 602; see also Barney, 955 F.2d at

639.

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 Applying this test to the present facts, we conclude the Missouri statute, by

including places other than buildings (i.e., tent, boat, railroad car, vessel), defines

burglary more broadly than does Taylor. See United States v. Phelps, 17 F.3d

1334, 1341 (10th Cir.) (pre-1975 Missouri burglary statute defined burglary in

broader terms than Taylor), cert. denied, 513 U.S. 844 (1994). Under these

circumstances, Taylor requires that we proceed to consider whether the charging

paper and jury instructions nevertheless actually required the jury to find all the

elements of generic burglary prior to convicting Mr. Haslip. Where, as here, the

defendant enters a guilty plea, thus providing no occasion to instruct a jury, we

have held it is appropriate for the sentencing court to “look to the underlying

indictment or information and the text of the guilty plea to determine whether the

defendant was charged with and admitted conduct which falls without question

within the ambit of Taylor’s generic definition.” Barney, 955 F.2d at 639-40.

The wrinkle in this case is the unfortunate fact many of the records

pertaining to Mr. Haslip’s 1969 burglary conviction and guilty plea were

destroyed by fire. Among the court documents destroyed were the actual

judgment of conviction and, presumably, any plea colloquy. However, the

available records contain, among other things, an authenticated copy of the

complaint charging Mr. Haslip with breaking and entering a building (the

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Trucker’s Inn) with intent to steal, and a journal entry of judgment showing Mr.

Haslip pleaded guilty to the burglary of a building. 2 These documents are

distinguishable from those we determined would not support an enhancement in

Barney. The two convictions that could not be counted toward enhancement in

Barney were based on informations which themselves were unclear as to whether

the defendant’s entry into the building was unlawful or unprivileged, or rather, his

entry into a back room, which is neither a building nor a structure, was unlawful.

955 F.2d at 640-41. Here, Mr. Haslip was clearly charged with “unlawfully ...

break[ing] and enter[ing] a certain building, to wit: Trucker’s Inn ... with the

felonious and burglarious intent to steal.” Mr. Haslip’s reliance on Barney

therefore is misplaced.

Under these circumstances, we are confident Mr. Haslip’s 1969 burglary

conviction actually represented conduct within the Taylor definition of burglary;

we cannot and will not look at the facts underlying Mr. Haslip’s particular

conviction as he proposes. Accordingly, we hold the district court did not err in

relying on the available documents pertaining to Mr. Haslip’s guilty plea and

judgment to conclude the 1969 offense was indeed a “violent felony” under the

2
We note these documents were not included in the record on appeal;
however, Mr. Haslip does not challenge the district court’s characterization of the
relevant documents.

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Armed Career Criminal Act.

For all the foregoing reasons, we AFFIRM Mr. Haslip’s conviction and

sentence.

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