February 1, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1470
UNITED STATES,
Appellee,
v.
GARRY T. WADE,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Cyr and Stahl, Circuit Judges,
and DiClerico,* District Judge.
Peter B. Krupp, Federal Defender Office, for appellant.
Jeanne M. Kempthorne, Asistant United States Attorney, with
whom Donald K. Stern, United States Attorney, and Sheila W.
Sawyer, Assistant United States Attorney, were on brief for
appellee.
* Of the District of New Hampshire, sitting by designation.
DiClerico, District Judge. The defendant, Garry T.
Wade, appeals his conviction and sentence for bank robbery in
violation of 18 U.S.C.A. 2113(a). He asserts that the evidence
introduced at trial was not sufficient to support a conviction
under the statute. He further asserts that the district court's
refusal to depart downward was based on an erroneous belief that
the court lacked the authority under the guidelines to do so. We
affirm the conviction. We lack jurisdiction to review the
sentence.
I
I
BACKGROUND
BACKGROUND
On September 11, 1992, the Boston Five Cent Savings
Bank, 569 Washington Street, Boston, Massachusetts, was robbed
shortly after 9:00 a.m. The bank was federally insured. A male,
acting alone, presented a teller with a handwritten robbery note.
According to a bank audit, the teller gave the robber $1,185.10.
The robber fled from the bank on foot. The bank's video sur-
veillance system recorded the robbery and it was also witnessed
by others in the bank.
On May 23, 1993, the defendant was indicted on one
count of bank robbery under 18 U.S.C.A. 2113(a) by a Grand Jury
sitting in Boston, Massachusetts. On January 28, 1994, the
defendant was convicted by a jury in United States District Court
for the District of Massachusetts. On April 20, 1994, the trial
judge sentenced the defendant to prison for 210 months with two
years supervised release and a special assessment of $50.00.
This appeal followed.
II
II
SUFFICIENCY OF THE EVIDENCE
SUFFICIENCY OF THE EVIDENCE
The court's standard of appellate review for challenges
based on the sufficiency of the evidence is settled. "[O]ur task
is to review the record to determine whether the evidence and
reasonable inferences therefrom, taken as a whole and in the
light most favorable to the prosecution, would allow a rational
jury to determine beyond a reasonable doubt that the defendants
were guilty as charged." United States v. DeMasi, No. 92-2062,
slip op. at 16 (1st Cir. Oct. 26, 1994) (quoting United States v.
Mena-Robles, 4 F.3d 1026, 1031 (1st Cir. 1993), cert. denied, 114
S. Ct. 1550 (1994), modified on other grounds sub nom., United
States v. Piper, No. 94-1197 slip op. (1st Cir. Sept. 8, 1994)).
We credit both direct and circumstantial evidence but do not
weigh the relative weight of the evidence or make credibility
determinations. United States v. Loder, 23 F.3d 586, 589-90 (1st
Cir. 1994); Mena-Robles, 4 F.3d at 1031; United States v.
Echeverri, 982 F.2d 675, 677 (1st Cir. 1993). Rather, "the jury
is at liberty to select freely among a variety of reasonable
alternative constructions of the evidence." Loder, 23 F.3d at
590 (citing United States v. Smith, 680 F.2d 255, 259 (1st Cir.
1982), cert. denied, 459 U.S. 1110 (1983)). As a result, we
affirm convictions so long as the jury verdict finds support in a
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"plausible rendition of the record," United States v. Ortiz, 966
F.2d 707, 711 (1st Cir. 1992), cert. denied, 113 S. Ct. 1005
(1993)), even if a verdict "other than one of guilt could
reasonably have been reached." DeMasi, slip op. at 16; see
United States v. Vavlitis, 9 F.3d 206, 212 (1st Cir. 1993)
("government need not disprove every reasonable hypothesis of
innocence" where record supports verdict beyond a reasonable
doubt).
To obtain a conviction for bank robbery, the government
must prove beyond a reasonable doubt the identity of the
defendant as the robber. See 18 U.S.C.A. 2113(a) ("whoever, by
force and violence, or by intimidation, takes, or attempts to
take, from the person or presence of another any property"). The
defendant complains that the circumstantial evidence placing him
at the scene of the crime, namely the forensic evidence related
to his fingerprints and handwriting, is "too weak to support a
reasonable inference of guilt."1 The defendant argues that,
under a line of "fingerprints only" cases, identity cannot be
established solely by forensic evidence found on a movable object
at the crime scene absent sufficient evidence that the
fingerprints were placed on the object at the time of the crime.
We have not yet addressed the "fingerprints only"
issue. The defendant is correct that other circuits have, under
various circumstances, struck down convictions based solely on
1 For purposes of this appeal, the defendant does not dispute
that he wrote the demand note used in the bank robbery.
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fingerprints obtained from movable items. See, e.g., Mikes v.
Borg, 947 F.2d 353, 356-57, 360-61 (9th Cir. 1991), cert. denied,
112 S. Ct. 3055 (1992); United States v. Corso, 439 F.2d 956, 957
(4th Cir. 1971); United States v. Collon, 426 F.2d 939, 942 (6th
Cir. 1970). Conversly, convictions are upheld on appeal where
the trial record includes incriminating evidence beyond that
found on the movable object. See, e.g., United States v. Luna,
21 F.3d. 874, 883-84 (9th Cir. 1994) (bank robbery conviction not
based only on fingerprints where bank teller testified that
robber, like defendant, had tattoo on neck); McMillan v. G mez,
19 F.3d 465, 469 (9th Cir.), cert. denied, 115 S. Ct. 170 (1994)
(conviction not based only on fingerprints where evidence
indicated that defendant's fingerprints "could have only been put
on [movable object] at a time very close to the murder"); United
States v. Field, 875 F.2d 130, 136-37 (7th Cir. 1989) (conviction
not based only on fingerprints where there was "plenty of
evidence from which the jury could infer" that defendant placed
fingerprints on money orders during unlawful alteration).
We review the record to determine if the jury was
presented with sufficient evidence to convict the defendant under
the statute.
The government introduced the handwritten demand note
used in the robbery with the following appearing on it:
Good morning I will be empting [sic] your
drawer this morning no die no tricks
[sic] I have a bomb and gun that will
self destruct immediately so dont [sic]
do anything stupid thank you!!!
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An FBI fingerprint specialist with nearly thirty years'
experience testified that, based on a comparison of the
defendant's fingerprints and those present on the demand note, he
was certain the defendant had handled the demand note. An FBI
forensic document examiner with twenty-seven years' experience
testified that, based on a comparison of the handwriting on the
demand note and a written exemplar provided by the defendant, he
was reasonably certain that the same individual wrote on both
sheets of paper.
The incriminating nature of the demand note and related
testimony by two FBI experts is obvious. However, we need not
determine whether evidence related to this "movable" object alone
is sufficient to identify the defendant as the government also
adduced other evidence. Isabel Araujo, the bank teller who
received the demand note and handed over the cash, testified that
the robber was a black male dressed in a multi-colored black,
white and red jacket with a baseball hat. She "guesstimated"
that he was approximately six feet tall, explaining that she
determined the measurement by comparison to her father whom she
knew to be approximately that height. Araujo did concede, on
both direct and cross-examination, that immediately following the
robbery she had reported to police officials that the robber was
somewhat shorter (between 5'7" and 5'9"). She also testified
that she did not remember if the robber had facial hair.2
2 A prosecution witness, State Police Sergeant Michael Tobin,
testified on cross-examination that Araujo told him that the
robber was clean-shaven.
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The government also introduced a videotape, retrieved
from the bank's security cameras, which depicted the interior of
the bank during the robbery and showed Araujo and the robber.
The defense introduced a still photograph electronically
reproduced from the videotape, again depicting the robber at the
scene of the crime.3
The defendant was present in the courtroom during
trial. The jury had the opportunity to compare the testimonial
and photo-graphic evidence of the robber's physical
characteristics with the outward appearance of the defendant. As
part of the deliberative process, the jury was entitled to assess
witness credibility and to weigh the evidence adduced by both
sides.4
Based on our review of the entire record in the light
most favorable to the prosecution, we conclude that the evidence
introduced at trial would allow a rational jury to find, beyond a
reasonable doubt, that the defendant was the robber and to
convict the defendant for bank robbery.
III
III
REFUSAL TO DEPART UNDER THE GUIDELINES
REFUSAL TO DEPART UNDER THE GUIDELINES
3 We have reviewed both the videotape and the still photograph
and acknowledge that neither presents a particularly sharp image
of the robber.
4 At trial, the defendant introduced evidence to support his
contention that he differed in physical appearance from the
robber in terms of height and facial hair.
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The defendant next requests a de novo review of his
sentence on the grounds that the district court erroneously
concluded it lacked the authority to depart downward under the
guidelines.5 The government responds that the district court's
refusal to depart was discretionary and unreviewable on appeal.
We agree.
By statute, a defendant may appeal a sentence based on
an incorrect application of the sentencing guidelines. 18
U.S.C.A. 3742(a)(2) (West Supp. 1994). Refusal by the trial
judge to depart is not considered an "incorrect application" of
the guidelines. United States v. Tucker, 892 F.2d 8, 10 (1st
Cir. 1989). "It is by now axiomatic that a criminal defendant
cannot ground an appeal on a sentencing court's discretionary
decision not to depart below the guideline sentencing range."
United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994),
petition for cert. filed, (Oct. 25, 1994) (quoting United States
v. Tardiff, 969 F.2d 1283, 1290 (1st Cir. 1992); United States v.
Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, 113 S. Ct 224
(1992); United States v. Hilton, 946 F.2d 955, 957 (1st Cir.
1991); United States v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991)).
There is an exception to this general rule:
[A]ppellate jurisdiction may attach if it
appears that the failure to depart
stemmed from the sentencing court's
mistaken impression that it lacked the
5 The defendant identifies three grounds under which the
district court could have departed downward. Given the lack of
appellate jurisdiction, we need not address the merits of the
specific grounds.
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legal authority to deviate from the
guideline range or, relatedly, from the
court's misapprehension of the rules
governing departures.
Id. (quoting United States v. Gifford, 17 F.3d 462, 473 (1st Cir.
1994).
The defendant relies heavily on the following statement
made by the trial judge at the sentencing:
COURT: All right. I am going to say for the
record I don't believe that all that
is in the record would warrant me in
departing. I don't think there is
any basis for a departure. If I am
wrong, that is an appealable issue.
The defendant argues that, by "expressly allowing for appeal,"
the district court communicated its doubts concerning the legal
basis to depart. However, there can be little doubt that the
court made a fact-based, discretionary decision not to depart.
The government, apparently concerned that the trial judge's
initial remarks could be characterized as ambiguous on appeal,
elicited a clarification:
AUSA: Just for clarity of the record, is
the Court's finding that it does not
find the facts in the Presentence
Report sufficiently unusual to
support a departure?
COURT: In other words, on the basis of the
fact [sic] that have been brought to
my attention, I do not feel that they
warrant a departure.
The Final Judgment confirms the discretionary nature of
the trial judge's refusal to depart downward. The "Statement of
Reasons" section includes the following text:
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The sentence is within the guideline
range . . . and the sentence is imposed for
the following reasons(s):
THE COURT DOES NOT FIND THAT THE
CIRCUMSTANCES AND FACTS AS SET FORTH IN THE
PRESENTENCE REPORT AND DEFENDANT'S SENTENCING
SUBMISSIONS WARRANT DEPARTURE.
The district court, cognizant of its legal authority to
depart, examined the facts of the defendant's case and made a
discretionary decision not to depart based on those facts.
Consequently, we lack appellate jurisdiction to entertain an
appeal of the defendant's sentence.
IV
IV
CONCLUSION
CONCLUSION
For the foregoing reasons, we affirm the defendant's
conviction and dismiss the appeal of his sentence for lack of
jurisdiction.
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