United States v. Bates

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0013p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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Nos. 06-2458/2460
v.
,
>
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ALBERT STEVEN BATES (06-2458) and

Defendants-Appellants. -
WALTER JOHN BATES (06-2460),
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 02-80948—Arthur J. Tarnow, District Judge.
Argued: December 10, 2008
Decided and Filed: January 12, 2009
*
Before: MARTIN and McKEAGUE, Circuit Judges; COLLIER, Chief District Judge.

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COUNSEL
ARGUED: Martin J. Beres, LAW OFFICES OF MARTIN J. BERES, Clinton
Township, Michigan, Harold Z. Gurewitz, GUREWITZ & RABEN, Detroit, Michigan,
for Appellants. Daniel R. Hurley, ASSISTANT UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellee. ON BRIEF: Martin J. Beres, LAW OFFICES OF
MARTIN J. BERES, Clinton Township, Michigan, Harold Z. Gurewitz, GUREWITZ
& RABEN, Detroit, Michigan, for Appellants. Daniel R. Hurley, ASSISTANT
UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

*
The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District of
Tennessee.

1
Nos. 06-2458/2460 United States v. Bates et al. Page 2

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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Albert Steven Bates and Walter John
Bates appeal their convictions for bank robbery and conspiracy to commit bank robbery.
Because we find that no reversible error occurred at trial and that both sentences were
imposed in a procedurally reasonable manner, we AFFIRM.

I.

In early 2002, Walter Bates was in severe financial distress. He had recently
been suspended from his job with the Detroit Police and he was mired in debt, in large
part because of an affinity for gambling. Searching for a way out, he formed a plan:
using his knowledge of police practices he would rob banks in ways that minimized his
chances of being caught. However, he needed help to put this plan into motion. To this
end, he recruited his brother, Albert Bates, and his longtime friend, Kevin Foster-Bey.1

Walter’s primary role was to plan the robberies. He identified easy targets–banks
in low-traffic areas close to highways and police district lines. From his time with the
Detroit Police Walter knew that the time it took to relay information across district lines
could help them evade detection. Walter Bates also developed the modus operandi for
the robberies. The “inside man” (usually Foster-Bey) would wear clothes that concealed
his features and put “crazy-glue” on his hands to avoid leaving fingerprints. He would
then enter the bank, hand the teller a “demand” note, remove any dye packs hidden in
the bills he received, and exit within two minutes.2 The inside man would then meet the

1
The Bates brothers attempted one robbery prior to bringing in Foster-Bey. The third person
involved in that robbery was Dante Townsend. This robbery failed when an undetected dye pack exploded
as Townsend left the bank. Afterward, Townsend told Albert Bates that he did not want to attempt a
second robbery. This led the Bates brothers to contact Foster-Bey.
2
Bates believed that the quality of the picture was not good enough to be useful for forensic
purposes absent a direct shot. Thus, he emphasized that at no point during the robbery should the inside
man look directly into a security camera.
Nos. 06-2458/2460 United States v. Bates et al. Page 3

getaway car (usually driven by Albert Bates) on a side street and make a quick escape.
A second car (usually driven by Walter Bates) would follow closely behind to obscure
the first car’s license plate and run interference if the cars encountered pursuit.

Following this plan, the trio robbed seven banks in August and September 2002.
During this time, Foster-Bey became increasingly frustrated with his share of the
proceeds, and he decided to rob banks on the side with an acquaintance named Leroy
Plummer. Plummer, however, soon proved to be a less than able partner: on September
18, the pair attempted to rob a bank together, but Plummer failed to remove a dye pack
from the bills he received. As a result, Plummer and Foster-Bey had to literally launder
the money afterwards. On the heels of this experience, Foster-Bey resumed working
with Albert and Walter Bates. Together, they committed another seven robberies in
September and October.

All the while, local police and the FBI were closing in on the men. Surveillance
photos proved to be of better quality than Walter Bates believed, and they enabled police
not only to identify Albert Bates and Foster-Bey but also to tie the robberies together
based on certain distinctive articles of clothing the pair wore during different robberies.
Eyewitness accounts from bank tellers and those living near the banks also helped tie the
robberies together, both by identifying the three men involved and the vehicles used–a
burgundy Chevy Impala owned by Albert Bates and a burnt orange Jeep Liberty owned
by Walter Bates. The saga took its final turn when Leroy Plummer was caught trying
to steal an ATM with Foster-Bey (who managed to escape). Plummer agreed to
cooperate against Foster-Bey, who in turn agreed to cooperate against Albert and Walter
Bates. Police subsequently recovered the Bates’ getaway vehicles, both of which
contained “crazy glue” stains in places Foster-Bey said he had spilled the glue while
preparing for robberies. Police also recovered phone records showing extensive
communication among the three men during the string of robberies. The phone contact
between the men strongly correlated with the dates and times of the robberies.

On November 7, Albert Bates was indicted for four counts of bank robbery. On
August 14, 2003, a superceding indictment added Kevin Foster-Bey as a defendant and
Nos. 06-2458/2460 United States v. Bates et al. Page 4

a number of additional counts of bank robbery. On November 26, 2003, a second
superceding indictment added Walter Bates as a defendant and charged him and Albert
Bates with conspiracy to commit bank robbery and thirteen counts of bank robbery. On
September 13, 2005, a third superceding indictment added Dante Townsend as a
defendant to the conspiracy charge. It also reduced the total counts of bank robbery to
seven, and the substantive counts against Walter Bates to one.3 Townsend and Foster-
Bey pleded guilty prior to trial, and Foster-Bey testified for the Government at trial.

Albert and Walter Bates were tried jointly in the United States District Court for
the Eastern District of Michigan. The jury found Albert Bates guilty of conspiracy to
commit bank robbery and five of the seven bank robbery charges against him (Third
Superceding Indictment counts 1, 3-5, 7-8). It found Walter Bates guilty of conspiracy
to commit bank robbery and of the single count of bank robbery against him (Third
Superceding Indictment counts 1 and 8). The district court sentenced Albert Bates to 60
months in prison and sentenced Walter Bates to 70 months. Both now appeal.

II.

Collectively, Albert and Walter Bates make seven arguments on appeal: (1) the
district court erred in denying Albert Bates’s motion to sever their trial; (2) the district
court improperly conducted voir dire; (3) the district court erred in allowing Leroy
Plummer to claim a blanket Fifth Amendment privilege; (4) the district court erred in
limiting cross-examination of Kevin Foster-Bey; (5) the district court improperly
excluded certain statements made by Plummer and Foster-Bey as hearsay; (6) that
evidence of Walter Bates’s financial condition should have been excluded as against
Albert Bates under Rule 404(b) of the Federal Rules of Evidence; and (7) that the district
court failed to comply with the Sentencing Guidelines in sentencing Walter Bates.

Two of these issues require discussion in detail: (1) whether the district court
erred in failing to force Leroy Plummer to take the stand to assert his Fifth Amendment

3
Because the government believed Walter planned many of the robberies but did not physically
take part in them, he was not charged with a substantive count for every robbery that took place.
Nos. 06-2458/2460 United States v. Bates et al. Page 5

privilege; and (2) whether the district court failed to comply with the Sentencing
Guidelines in sentencing Walter Bates.

A. Leroy Plummer’s Blanket Assertion of his Fifth Amendment Privilege

The longstanding rule of this circuit is that a defendant must take the stand and
answer individualized questions in order to invoke his Fifth Amendment privilege. See
In re Morganroth, 718 F.2d 161, 167 (6th Cir. 1983) (“A blanket assertion of the
privilege by a witness is not sufficient to meet the reasonable cause requirement and the
privilege cannot be claimed in advance of the questions. The privilege must be asserted
by a witness with respect to particular questions, and in each instance, the court must
determine the propriety of the refusal to testify.”). This presumption against blanket
assertions of Fifth Amendment privilege is premised on the common sense notion that
a judge must know what the witness believes is incriminating in order to evaluate
whether the witness invokes the privilege with “reasonable cause.” As this Court has
since recognized, however, when a defendant has a clear entitlement to claim the
privilege, forcing the defendant to take the stand is “futile” and thus unnecessary.
United States v. Highgate, 521 F.3d 590, 594 (6th Cir. 2008); Davis v. Straub, 430 F.3d
281, 288 n.4 (6th Cir. 2005); United States v. Medina, 992 F.2d 573, 586-87 (6th Cir.
1993). In such a case, the reason behind the rule does not apply because the court
already knows that “reasonable cause” to invoke the privilege exists.

Such was the case here. When defense counsel sought to put Leroy Plummer on
the stand to impeach the testimony of Kevin Foster-Bey, Plummer was charged with
robbing a bank with Foster-Bey. In order to lay a foundation for his proposed testimony,
Plummer would have to admit his association with Foster-Bey and that he had
extensively discussed robbing banks with him. These admissions tend to incriminate
Plummer, see Hoffman v. United States, 341 U.S. 479, 486 (1951), and he thus had a
valid Fifth Amendment privilege. And Plummer’s lawyer made it clear that Plummer
intended to invoke his privilege. Indeed, the reason the district court did not force
Plummer to take the stand was because his privilege and his intent to invoke his
Nos. 06-2458/2460 United States v. Bates et al. Page 6

privilege were so clear. Under these circumstances, it was not error for the district court
to fail to force Plummer to take the stand. It would have been pointless to do so.

B. The Procedural Reasonableness of Walter Bates’s Sentence

The second issue requiring extended discussion is the procedural reasonableness
of Walter Bates’s sentence. We review the district court’s sentencing decisions for
abuse of discretion. Gall v. United States, 128 S. Ct. 586, 594 (2007). This review
involves a dual inquiry into both procedural and substantive reasonableness. In the
context of procedural reasonableness, a district court abuses its discretion when it
commits a “significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.” Id. at 597.

Walter Bates challenges the district court’s application of a four-level increase
in his offense level under U.S. Sentencing Guidelines Manual § 3D1.4 on the grounds
that it failed to find “beyond a reasonable doubt” that Walter Bates conspired to commit
the substantive conspiracy charges for which Albert Bates was convicted, as required by
§ 1B1.2(d). We disagree with this contention.

The counting rule for general conspiracy charges is § 1B1.2(d), which reads: “A
conviction on a count charging a conspiracy to commit more than one offense shall be
treated as if the defendant had been convicted on a separate count of conspiracy for each
offense that the defendant conspired to commit.” U.S.S.G. § 1B1.2(d).4 This provision
is of simple application to conspiracies involving a single object offense. However, it
presents a problem when a criminal defendant is convicted of a general conspiracy
charge involving more than one object offense: because guilt for conspiracy may be
premised upon a single overt act, a conspiracy conviction does not speak to how many
of the charged object offenses the defendant conspired to commit. To fill this gap, the

4
Robbery under § 2B3.1 is specifically exempted from grouping under § 3D1.2(d), so § 1B1.2(d)
applies.
Nos. 06-2458/2460 United States v. Bates et al. Page 7

Sentencing Guidelines provide that the Court should make an independent finding as to
which object offenses the defendant conspired to commit:

Particular care must be taken in subsection (d) because there are cases in
which the verdict or plea does not establish which offense(s) was the
object of the conspiracy. In such cases subsection (d) should only be
applied with respect to an object offense in the conspiracy count if the
court, were it sitting as a trier of fact, would convict the defendant of
conspiring to commit that object offense.
Id. Application note 4 (emphasis added). Because this finding is an independent finding
of guilt by the judge, the Guidelines provide it must be made as if the court were “sitting
as a trier of fact”–i.e. beyond a reasonable doubt. See 18 U.S.C. App’x C, Amend. 75
(effective Nov. 1, 1989). Once this finding is made, the conspiracy convictions are
counted under § 3D1.4.

As Walter Bates points out, the judge failed to explicitly make such a finding
here. However, the § 1B1.2(d) finding need not be explicit. Where it is clear from the
record that the sentencing judge implicitly found that the defendant conspired to commit
the object offenses at issue, the court has complied with § 1B1.2(d). See United States
v. Manges, 110 F.3d 1162, 1179 (5th Cir. 1997); United States v. Fisher, 22 F.3d 574,
577 (5th Cir. 1994); United States v. McKinley, 995 F.2d 1020, 1026 (11th Cir. 1993).
As in the context of discussing the § 3553(a) factors, where the district court has clearly
complied with procedural requirements, it need not say certain magic words in order to
meet the baseline requirement of procedural reasonableness. See, e.g., United States v.
Smith, 505 F.3d 463, 468 (6th Cir. 2007).

Here, the district court made an implicit finding beyond a reasonable doubt that
Walter Bates conspired to commit the bank robberies for which Albert Bates was
convicted. First, the district court had clearly been informed of the relevant law. The
parties had previously briefed this issue, they discussed it at some length during Albert
Bates’s sentencing hearing the week before, and they did so again at Walter Bates’s
sentencing hearing. Second, the district court clearly considered which convictions he
believed the Bates brothers conspired to commit and made a finding as to which should
be counted. At Albert Bates’s sentencing hearing, the United States argued that the court
Nos. 06-2458/2460 United States v. Bates et al. Page 8

should increase the offense level by five under § 3D1.4 based upon a finding that he
conspired to commit robberies beyond the five he was convicted of committing.
However, the judge rejected this argument and increased the offense level only by four.
This reflects a finding that Albert Bates only conspired to commit the five bank
robberies for which he was convicted, because a finding that he committed any
additional robberies would have required a five level increase under § 3D1.4. Likewise,
at Walter Bates’s sentencing hearing the district court refused to find that Walter Bates
conspired to commit more than five robberies, and applied only a four level increase in
the offense level under § 3D1.4. Thus, from the context of Walter Bates’s sentencing
hearing and that of Albert Bates the week before, the four level increase represents a
finding beyond a reasonable doubt that Walter Bates was guilty of conspiracy to commit
only five robberies–the one for which he and Albert were both convicted (count 8), plus
the four additional robberies Albert Bates was convicted of committing (counts 1, 3-5,
and 7).

This makes sense: it was clear from the facts presented at trial and found by the
jury that Walter and Albert Bates conspired to rob banks together, and that the robberies
Albert Bates was convicted of rose out of that same conspiracy. They were very close
together in time, were factually very similar, and they were connected to Walter Bates
by both circumstantial evidence and the testimony of co-conspirator Kevin Foster-Bey.
In light of these things, it would be difficult for the district court to find that there was
reasonable doubt as to whether Walter Bates conspired to commit the robberies for
which Albert Bates was convicted. Consequently, it was not procedurally unreasonable
for the district court to fail to explain its finding in greater detail. The required finding
was implicit in what it did and was sufficiently clear from the broader context of the
sentencing hearings and the facts found at trial.

C. Remaining Challenges

The remaining challenges can be disposed of briefly. First, the district court did
not commit plain error in denying Albert Bates’s motion to sever. There is a
presumption in favor of joint conspiracy trials in the federal courts, Zafiro v. United
Nos. 06-2458/2460 United States v. Bates et al. Page 9

States, 506 U.S. 534, 537, 541 (1993), and here, Albert Bates has not shown prejudice
from the joint trial.

Second, the district court did not abuse its discretion in limiting duplicative
questions from defense counsel during voir dire. These were within the court’s “broad
discretion” to exclude. United States v. Phibbs, 999 F.2d 1053, 1071-72 (6th Cir. 1993).

Third, the district court did nor err in refusing to allow impeachment of Kevin
Foster-Bey during cross-examination. The proposed questions regarded his familiarity
with the legal system, which had already been brought out in detail. The questions were
thus cumulative and within the court’s discretion to exclude. United States v. Lloyd,
462 F.3d 510, 516 (6th Cir. 2006).

Fourth, the district court’s rulings on the proposed hearsay testimony of Leroy
Plummer were correct. The proposed hearsay statements were not admissible as a
statement against interest under Fed. R. Evid. 804(b)(3). They were either not against
the declarant’s penal interest or were cumulative and within the discretion of the district
court to exclude. Likewise, the hearsay statements were not admissible as a co-
conspirator’s statement under Fed. R. Evid. 801(d)(2)(E) because they were not spoken
during the course of the conspiracy or in furtherance of it, and they were not being
offered against a party opponent.

Fifth, the evidence alleged to be improper under Fed. R. Evid. 404(b) was not
extrinsic to the case and thus was not subject to the constraints of that rule. United
States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995).

Finally, the defendants’ various theories of government misconduct in connection
with the prosecution of Leroy Plummer (and thus the status of his Fifth Amendment
privilege) fail because they have offered no evidence to suggest that the Government
acted “with the deliberate intention of distorting the fact-finding process” in the Bates
trial. United States v. Talley, 164 F.3d 989, 997 (6th Cir. 1999).
Nos. 06-2458/2460 United States v. Bates et al. Page 10

III.

For the foregoing reasons, we AFFIRM both the convictions and the sentences
of Albert and Walter Bates.