United States v. Freeman

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS December 21, 2011
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 11-6062
v. (D.C. No. 5:10-CR-00165-L-1)
(W.D. Okla.)
WILLIAM BERNARD FREEMAN,

Defendant-Appellant.

ORDER AND JUDGMENT*

Before MURPHY, HOLLOWAY and O’BRIEN, Circuit Judges.

Defendant-Appellant William Bernard Freeman appeals his conviction on a one-

count indictment for bank robbery in violation of 18 U.S.C. § 2113(a) and 18 U.S.C. §

2(a) (aiding and abetting the principal crime of bank robbery). On appeal, he challenges

his conviction, contending that (1) the evidence of guilt was insufficient to sustain his

conviction; (2) the district judge erred in refusing to issue a jury instruction addressing the

credibility of accomplice testimony; and (3) the district judge erred in declining to grant a

*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
mistrial after the defense uncovered an alleged discovery violation by the prosecution

during re-direct examination of an FBI agent who investigated the case. The district court

properly exercised jurisdiction over this crime against the United States under 18 U.S.C. §

3231. We exercise jurisdiction over the district court’s final decision under 28 U.S.C. §

1291 and affirm Mr. Freeman’s conviction.

I. BACKGROUND

On January 21, 2010, a robbery occurred at the IBC Bank located at NW 19th

Street and North Portland Avenue in Oklahoma City (“the bank”). In connection with the

crime, the United States prosecuted Mr. Freeman for bank robbery and aiding and

abetting on a one-count indictment. The government elicited testimony as to Mr.

Freeman’s involvement in the crime from his accomplices. The accomplices implicated

Mr. Freeman as the originator of the robbery scheme and the getaway driver on the day of

the robbery. The accomplices’ testimony was supported by testimony from the FBI case

agent who investigated the crime, Mr. Freeman’s ex-girlfriend (with whom he was in a

romantic relationship at the time of the robbery), the teller whom the robbers approached,

and a local police officer who had pulled over Mr. Freeman for an unrelated traffic

violation long after the robbery. As to the first issue of sufficiency of the evidence, Mr.

Freeman argues that the accomplices’ testimony was insufficient to support his conviction

because it was inconsistent and unreliable. Thus, we summarize the trial testimony

seriatim.

Heather Ford, a teller present during the robbery, testified that two individuals (one

male and one female) entered the bank on the morning of January 21, walked up to her

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teller station, and handed her a demand note. ROA Vol. III at 63:14-19. Ms. Ford said

that the robbers also gave her a pillowcase to fill with money. Id. at 66:9. After Ms. Ford

filled the pillowcase with money from nearby cash drawers, she returned it to the robbers

and they fled the bank. Id. at 70:24-71:1. Ms. Ford added that she believed around

$14,000 had been taken from the bank during the robbery. Id. at 71:4.

Alexica “Shae” Hopkins testified that she had played a role in the bank robbery

scheme along with Vivian Ayala, Eddie Ayala, and the defendant, William “Mac”

Freeman. Id. at 76:11, 77:22. Ms. Hopkins acknowledged that she had entered into a

plea agreement with the government and as a result hoped to receive a lower prison

sentence. Id. at 75:6-10. She made a visual identification of Mr. Freeman as the fourth

accomplice in the crime. Id. at 78:8. Ms. Hopkins stated that Mr. Freeman, a close friend

of hers whom she had known for eight years, had organized the robbery scheme. Id. at

77:24, 78:14-17, 83:8, 83:16. According to Ms. Hopkins, Mr. Freeman approached her

on the evening of January 20 (the day before the robbery), asking her to aid him and Ms.

Ayala in a bank robbery. Id. at 83:14, 85:23. Later that night, Ms. Hopkins, Ms. Ayala,

and Mr. Freeman agreed that Mr. Freeman would drive everyone to the bank and both of

the Ayalas would enter the bank and execute the robbery. Id. at 86:17-18. Ms. Hopkins’s

role in the robbery was not established at that time. Id. at 87:4.

On the morning of January 21 (the day of the robbery), Ms. Hopkins said she met

Mr. Freeman and both of the Ayalas at her apartment complex. Id. at 87:13. Mr.

Freeman drove everyone to the bank in his car, a black Chevrolet Monte Carlo. Id. at

87:21. On the way there, Ms. Hopkins said that Ms. Ayala wrote the demand note at the

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direction of Mr. Freeman. Id. at 88:4-5, 88:20. Ms. Hopkins acknowledged that she had

helped Ms. Ayala with spelling in the note, although she did not admit actually writing

the note. Id. at 88:23-89:1. Mr. Freeman told her to go into the bank and determine how

many people were inside. Id. at 89:7-8. Mr. Freeman dropped Ms. Hopkins off about a

block away from the Bank and she went inside pretending to be a job applicant. Id. at

90:1, 90:10.

Once inside the bank, Ms. Hopkins said she sent a text message to Mr. Freeman

recounting her surveillance. Id. at 90:4-6. After the Ayalas executed the robbery, Ms.

Hopkins remained inside the bank. Id. at 92:9-19 Although Ms. Hopkins had originally

planned to leave the bank before the robbery, she was unable to get out before the police

locked down the scene to question witnesses in the bank at the time of the robbery. Id. at

92:19, 93:17. When questioned at the bank by law enforcement, Ms. Hopkins said that

she neither saw nor knew anything about the robbery. Id. at 94:5-12. While still in the

bank, either before or during questioning, Ms. Hopkins sent a text message to Mr.

Freeman telling him she had overheard a bank teller say that between $11,000 and

$12,000 had been taken in the robbery. Id. at 94:23-95:4.

After law enforcement let her leave the scene, Ms. Hopkins contacted Mr.

Freeman (she did not remember whether the communication was via phone call or text

message) to pick her up. Id. at 93:9-11. Mr. Freeman returned in a different car, picked

up Ms. Hopkins a short distance away from the bank, and drove her back to her

apartment. Id. at 95:22, 96:4-5, 96:24. On the way back from the bank, Ms. Hopkins said

Mr. Freeman told her that he was planning “to go get . . . some shoes” with his cut of the

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robbery money. Id. at 96:19. After Mr. Freeman and Ms. Hopkins got back to the

apartment complex, Ms. Hopkins said that she received $50 from Ms. Ayala for her part

in the robbery. Id. at 97:15. During its examination of Ms. Hopkins, the government also

played a recording of a phone call which Ms. Hopkins identified as being between Mr.

Freeman and his mother. Id. at 98:22.

On cross-examination, Ms. Hopkins acknowledged that she had lied to law

enforcement about her involvement in the robbery when interviewed on January 21 and

when initially arrested on May 12. Id. at 106:6-12. Ms. Hopkins also acknowledged that

the prosecutor in her criminal case would still need to take some action in order for her to

reap the benefits of a plea deal she had with the government. Id. at 114:23-115:20.

Vivian Ayala identified herself as a friend of Ms. Hopkins and Mr. Freeman, who

she knew as “Mac,” and the sister of Eddie Ayala. Id. at 132:21, 133:6-7, 135:2-5. With

regard to execution of the bank robbery, Ms. Ayala testified to the same basic scheme as

did Ms. Hopkins, implicating Mr. Freeman as the organizer and getaway driver in the

robbery. We recite only the arguably material inconsistent testimony and additional

information provided by Ms. Ayala.

Ms. Ayala said she pled guilty as to her role in the robbery, hoping that her

cooperation in Mr. Freeman’s case would result in her receiving a lower sentence for her

involvement with the robbery, although she had no formal agreement with the

government. Id. at 131:18-25. She also claimed that Ms. Hopkins had written the

demand note on the way to the bank. Id. at 141:20. She recalled that Ms. Hopkins had

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been dropped off in the bank parking lot, rather than a block or so away as stated by Ms.

Hopkins. Id. at 142:3.

Ms. Ayala said that Mr. Freeman dropped her and her brother off two houses away

from the bank after receiving Ms. Hopkins’s text message about the number of people

inside the bank. Id. at 142:22-25. After the robbery, Mr. Freeman picked up her and Mr.

Ayala in the bank’s driveway and drove them back to Ms. Hopkins’s apartment, where

they counted the money they had taken from the bank. Id. at 144:23-24, 145:9-10. Ms.

Ayala said she and her brother each received one-quarter of the money, although she did

not recall knowing the total amount that had been taken. Id. at 146-10. It was her

understanding that each of the four robbery participants would receive equal shares of the

robbery proceeds. Id. at 146:5. She said that Mr. Freeman kept his and Ms. Hopkins’s

share at that time and then went to pick up Ms. Hopkins upon receiving a text message

from her. Id. at 146:13-20. Ms. Ayala stated that she and her brother traveled to Dallas

on the evening of the robbery. Id. at 146:23-147:7.

On cross-examination, Ms. Ayala said she had initially lied to law enforcement

upon her arrest in Dallas by telling them that a black male named “Mac” had driven her

and her brother to Dallas after the robbery. Id. at 157:9-10, 157:20-24. Contrary to Ms.

Hopkins’s testimony, Ms. Ayala said that she never gave Ms. Hopkins $50 for her role in

the robbery, and had instead given slightly more than half the robbery proceeds to Mr.

Freeman, who was to distribute to Ms. Hopkins’s her one-quarter share. Id. at 158:21.

On re-direct examination, Ms. Ayala clarified that she had told the lie about a black male

driving her to Dallas in order to protect her family. Id. at 165:17-22.

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 Eddie Ayala offered testimony similar to that of Ms. Ayala. Again, we recite only

the material inconsistencies and additional information. Mr. Ayala knew Mr. Freeman as

“Matt” rather than “Mac”. Id. at 176:3-9. He had only talked to Mr. Freeman about the

robbery scheme on two occasions prior to the robbery. Id. at 176:19. He said he agreed

to join in the robbery in order to protect his sister. Id. at 177:17-21. Like Ms. Ayala, Mr.

Ayala claimed he and his sister were dropped off two houses away from the bank and

returned to Mr. Freeman’s car after the robbery. Id. at 181:22-23, 183:14-16.

On cross-examination, Mr. Ayala said that his sister had approached him about the

robbery “a week or two” before it actually took place. Id. at 189:19-20. Mr. Ayala

offered confusing testimony about when exactly he first spoke with Mr. Freeman about

the robbery plan. Id. at 190:23-192:4. Ultimately, Mr. Ayala suggested that he had

spoken with Mr. Freeman about it only once before the day of the robbery, and that

conversation took place at least a week before the robbery. Id. at 192:11-16. Contrary to

the testimony of his sister but consistent with Ms. Hopkins’s testimony, Mr. Ayala

testified that Mr. Freeman had dropped off Ms. Hopkins “two or three houses” away from

the bank rather than in the bank parking lot. Id. at 193:11.

Whitney Gatlin testified that she had been in a relationship with Mr. Freeman, who

she knew as “Will” and “Mac,” from November 2009 until March 2010 (the robbery took

place in January 2010). Id. at 215:5-22; 216:2-6. Ms. Gatlin said she had given Mr.

Freeman a cell phone prior to January, and the phone was registered under her own name.

Id. at 216:9-217:1. She could not recall the entire phone number for the phone she gave to

Mr. Freeman. Id. Ms. Gatlin said Mr. Freeman used the phone she had given him

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through March 2010 and they regularly exchanged text messages while he was using that

phone. Id. at 217:16-24. She also said that on one occasion in the beginning of February

that Mr. Freeman had purchased “two or three” pairs of shoes and “a few” jeans and

shirts for himself. Id. at 219:9-23. He had also given her an expensive purse for

Valentine’s Day. Id. at 220:5-7. She was “a little” surprised that Mr. Freeman would

have made these purchases given his ordinarily frugal spending habits. Id. at 219:25-

220:2.

Trevor Troxell, a Moore, Oklahoma police officer, testified that in February 2010

he pulled over an individual named William Bernard Freeman for a traffic violation,

although he could not make a visual identification of Mr. Freeman. Id. at 224:16, 225:25,

226:17. Mr. Freeman had been driving a two-door Chevrolet Monte Carlo matching Ms.

Hopkins’s and the Ayalas’ description of the vehicle used in the robbery. Id. at 225:16.

Upon reviewing the citation issued to Mr. Freeman, Officer Troxell stated that Mr.

Freeman had given his phone number. Id. at 225:6. The phone number listed in the

citation ultimately matched the phone number for the cell phone that Ms. Gatlin gave Mr.

Freeman.

The last witness was FBI Agent Kerstetter. Agent Kerstetter testified that he was

the case agent who investigated the robbery. Id. at 228:4. He recalled seeing Ms.

Hopkins walking away from the bank and talking on a cell phone after she was released

from the scene of the robbery. Id. at 228:25-229:20. He stated that Ms. Ayala’s

fingerprints had been found on the demand note used in the robbery. Id. at 230:25.

Agent Kerstetter testified that his investigation led him and other agents to believe that

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Mr. Freeman had used the telephone number 405-204-0487 (“204 Number”) at and

around the time of the robbery, at least through February 2010.1 Id. at 231:12-14. Agent

Kerstetter also described phone records exhibited by the government. The records

showed a multitude of text message and phone call communications between the 204

Number and Ms. Hopkins’s cell phone on the morning of the robbery. Id. at 233:10.

Consistent with Ms. Gatlin’s testimony, the phone records for the 204 Number reflected

that the number was registered in Ms. Gatlin’s name. Id. at 232:9.

Agent Kerstetter demonstrated that there were text messages sent to the 204

Number from Ms. Hopkins’s phone at 9:36am, 9:49am, 10:27am, and 10:39am on the

morning of the robbery. Id. at 233:19-23, 236:8-10. Agent Kerstetter testified that the

records also revealed “several” phone calls “back and forth” between Ms. Hopkins and

the 204 Number after the 10:27am text message. Id. at 236:3-5. Lastly, Agent Kerstetter

identified some phone calls, excerpts of which were played for the jury. Among other

things, one call reflected the male caller telling the female caller that he and Ms. Hopkins

were not “all the way” innocent.2 Addendum to Resp. Br., Trial Exhibit 10. In another

1
The trial transcript reveals that Ms. Ayala first linked “Mac” to the 204 Number
at some point during police questioning. Having linked an unidentified fourth suspect to
the 204 Number, Agent Kerstetter or his associates searched local police records and
found the Moore, Oklahoma traffic citation that Officer Troxell had issued. Having
found that citation, Agent Kerstetter tied Mr. Freeman to the 204 Number. Later, in
reviewing phone records for the 204 Number, Agent Kerstetter learned that the 204
Number had been registered with the phone company under Ms. Gatlin’s name and
account. ROA Vol. III at 271:17-272:4.
2
Earlier in the trial, Ms. Hopkins had identified the callers in this call as Mr.
Freeman and his mother.

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call played for the jury, Mr. Freeman asked a friend of his about the ability of law

enforcement to retroactively retrieve the content of text messages sent on an earlier date.

On cross-examination, Agent Kerstetter revealed that in the excerpted phone calls

Mr. Freeman had also made exculpatory statements suggesting that he was being set up,

had fingers pointed at him, and was lied about by his alleged accomplices. ROA Vol. III

at 278:23-279:7. Agent Kerstetter also acknowledged some inconsistency between the

physical description of the fourth accomplice given by the other suspects and the physical

appearance of Mr. Freeman. An issue also arose about a photograph of Ms. Hopkins’s

live-in boyfriend that Agent Kerstetter showed to the Ayalas before tying Mr. Freeman to

the bank robbery. Id. at 286:18, 298:3-11. The proceedings surrounding the photograph

are discussed in greater detail in Part IV.A, infra.

No further witnesses testified after Agent Kerstetter. The jury returned a guilty

verdict. Mr. Freeman timely appealed and challenges his conviction. We consider in turn

the three issues raised by Mr. Freeman on appeal.

II. SUFFICIENCY OF THE EVIDENCE

In reviewing the sufficiency of the evidence supporting a conviction, we view the

evidence and all reasonable inferences drawn therefrom in the light most favorable to the

government. United States v. Espinoza, 338 F.3d 1140, 1146-47 (10th Cir. 2003). This

Court reviews the sufficiency of the evidence de novo. United States v. Lewis, 240 F.3d

866, 870 (10th Cir. 2001). We will reverse a guilty verdict only if no rational jury could

have found the defendant guilty beyond a reasonable doubt. Espinoza, 338 F.3d at 1147.

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 Mr. Freeman asks us to adopt and apply a per se rule that uncorroborated

testimony of accomplices is insufficient to sustain a conviction as a matter of law. Aplt.

Br. at 23.3 The Tenth Circuit has soundly and unwaveringly rejected the argument Mr.

Freeman sets forth. In United States v. Magallanez, for example, we unequivocally held

that “[a] conviction may stand merely on the uncorroborated testimony of an

accomplice.” United States v. Magallanez, 408 F.3d 672, 682 (10th Cir. 2005) (citing

United States v. McGuire, 27 F.3d 457, 462 (10th Cir. 1994)). Mr. Freeman explicitly

acknowledges and asks us to reconsider this well-settled precedent. Aplt. Br. at 26. In

the absence of intervening Supreme Court authority or en banc review, we may not do

so.4 E.g. United States v. Mitchell, 518 F.3d 740, 752 n.14 (10th Cir. 2008).

3
His argument is based on the Supreme Court’s recognition that testimony of
accomplices “is not to be taken as that of an ordinary witness, of good character, in a case
where testimony is generally and prima facie supposed to be correct.” Crawford v.
United States, 212 U.S. 183, 204 (1909). See also Bruton v. United States, 391 U.S. 123,
136 (1968) (characterizing the incriminating hearsay statement of an accomplice as
“inevitably suspect” and intolerably unreliable where the accomplice does not testify);
Cruz v. New York, 481 U.S. 186, 195 (1987) (White, J., dissenting) (acknowledging that a
codefendant’s out-of-court statements are traditionally viewed with special suspicion).
Problematically for Mr. Freeman, however, all these discussions of unreliability of
accomplice testimony are in contexts other than the sufficiency of the evidence.
4
In any event, we remain resoundingly persuaded by the convincing reasoning of
Magallanez. “It is not the role of an appellate court to consider the credibility of the
witnesses or weigh the conflicting evidence, as these matters are within the exclusive
province of the jury.” Maganallez, 408 F.3d at 682. If alleged accomplices might have a
motive to lie in implicating a defendant, the defendant is afforded an opportunity to
explore any such nefarious motives and more generally attack the credibility of
government witnesses at trial. Id. Mr. Freeman’s counsel did exactly this upon cross-
examination of government witnesses and in his closing argument. And as in
Magallanez, the jury was thoroughly instructed that it was their responsibility to
determine credibility. See Part III, infra.

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 Mr. Freeman’s alternative suggestion that the accomplice testimony in this specific

case was incredible as a matter of fact is also unavailing. We may not usurp the jury’s

role as fact-finder and determiner of credibility. Magallanez, 408 F.3d at 682. Thus, we

are precluded from passing judgment on the credibility of Mr. Freeman’s accomplices

unless their testimony is incredible on its face. See United States v. Torres, 53 F.3d 1129,

1140 (10th Cir. 1995). This limited caveat does not apply in this case. Accomplice

testimony is not incredible “on its face” where the government offered independent

corroboration of the accomplices’ testimony via, inter alia, phone records and

incriminating phone call recordings, and each accomplice’s testimony was generally

consistent with that of other accomplices.5

In sum, Mr. Freeman’s arguments for insufficiency of the evidence merely raise

issues of credibility of government witnesses rather than a claim that the government

5
Mr. Freeman claims that we can override the jury’s credibility determinations
because his alleged accomplices told inconsistent stories, unbelievable on their face. This
characterization is not supported by the record. In making out his argument, Mr. Freeman
points to elements of the accomplices’ testimony that were inconsistent. This recitation
of bits and pieces of inconsistency is unavailing. The inconsistencies complained of by
Mr. Freeman do not make the accomplices’ implication of Mr. Freeman in the robbery
scheme necessarily incredible. A rational juror could certainly believe that Mr.
Freeman’s alleged accomplices had differing recollections about the specifics of the
execution of the robbery, amounts of money distributed from the robbery, and precise
description of their getaway driver’s physical features while still finding their testimony
to be generally believable. Furthermore, the government offered ample independent
corroborating evidence that supported the testimony of the accomplices.

Similarly, Mr. Freeman asks us to disregard the jury’s credibility decisions
because the accomplice testimony could not possibly have been believed by a reasonable
juror given its “excessive purchase price.” Mr. Freeman cites no legal authority to
support this proposition. Regardless, the corroborating evidence offered by the
government adequately resolves any concerns about the incentive for accomplices to
falsely implicate Mr. Freeman resulting in inherently unbelievable testimony.

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failed to carry its burden of proving an essential element of bank robbery or aiding and

abetting. See United States v. Torres, 53 F.3d 1129, 1135, 1140 (10th Cir. 1995). We

reject his claim and conclude that the evidence presented at trial was sufficient to sustain

his conviction.

III. FAILURE TO ISSUE A JURY INSTRUCTION SPECIFICALLY
PERTAINING TO ACCOMPLICE TESTIMONY

A. Procedural Background

At the direction of the district judge, the district judge’s law clerk held an off-the-

record preliminary jury instruction conference with the attorneys for each party. During

that meeting, Mr. Freeman’s counsel submitted a written copy of an Oklahoma state court

jury instruction addressing “informant testimony.” The parties agreed on the rest of the

instructions, but disagreed about the propriety of Mr. Freeman’s proposed instruction.

After the preliminary meeting, the judge held an on-the-record hearing to finalize the jury

instructions.

At the formal instruction hearing, the district judge allowed Mr. Freeman’s counsel

to argue why the proposed state court jury instruction ought to be issued along with the

other agreed upon instructions. The jury instruction sought by Mr. Freeman was labeled

“Evidence – Credibility of Informers” and said:

The testimony of an informer who provides evidence against a defendant for . . .
immunity from punishment [or] personal advantage . . . must be examined and
weighed by you with greater care than the testimony of an ordinary witness.
Whether the informer’s testimony has been affected by interest or by prejudice
against the defendant is for you to determine.

ROA Vol. I at 103.

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 Mr. Freeman’s argument before the trial judge was limited to a discussion of use

of the instruction in Oklahoma state courts. Mr. Freeman’s counsel even acknowledged

that he was not aware of a similar instruction ordinarily used in federal court. Mr.

Freeman’s counsel cited no case law supporting inclusion of his proposed instruction.

The district judge was unpersuaded by Mr. Freeman’s argument and declined to alter the

otherwise agreed-upon jury instructions. Thus, the judge denied inclusion of Mr.

Freeman’s proposed Oklahoma state court instruction and deemed sufficient the general

witness-credibility instruction (Instruction No. 9).

B. Standard of Review

In this case, the parties hotly dispute whether this issue was properly preserved

during the trial stage. On appeal, Mr. Freeman says the proposed “informant testimony”

instruction or a similar one should have been issued. The government makes several

arguments about why this issue was not preserved in the trial court. However, such

arguments are moot because we find no abuse of discretion in the district court’s refusal

to give a particular instruction. See United States v. Serrata, 425 F.3d 886, 898, 900-01

(10th Cir. 2005) (reviewing for abuse of discretion a district judge’s refusal to grant a

proposed jury instruction). Similarly, upon de novo review of the jury instructions as a

whole, we find that they accurately informed the jury of the governing law. Id.

C. Adequacy of the Jury Instructions as to Accomplice Testimony

Mr. Freeman contends that he was entitled as a matter of law to a jury instruction

laying out for the jury the perils of uncorroborated accomplice testimony. And there is

good reason for Mr. Freeman to suggest that such an instruction is required by the Tenth

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Circuit in certain circumstances. See, e.g., United States v. Gardner, 244 F.3d 784, 789

(10th Cir. 2001) (“If the testimony of an accomplice is uncorroborated, the court must

instruct the jury that testimony of accomplices must be carefully scrutinized, weighed

with great care, and received with caution.”) (quoting United States v. Hill, 627 F.2d

1052, 1053 (10th Cir. 1980)) (quotations omitted). Indeed, we laid out this principle

nearly half a century ago in Todd v. United States, stating that “if the incriminating

testimony of an informer is uncorroborated or unsubstantiated, special cautionary

instructions are surely required.” 345 F.2d 299, 300 (10th Cir. 1965). But in Todd we

also set forth a corresponding corollary, acknowledging that such an instruction is not

necessary where there is adequate corroboration:

If such testimony is corroborated in critical respects, we nevertheless favor careful
instructions in form and substance calculated to call attention to the character of
the testimony of the informer, leaving to the jury the ultimate question of value
and credibility. There is no ritual of words, and abstract instructions are usually
beamed to the appellate court rather than to the jury. The sufficiency of the
instructions depends upon other incriminating circumstances of the case tending to
corroborate the informer.

Id. (emphasis added). Thus, while a specific accomplice credibility instruction is favored

where accomplice testimony is satisfactorily corroborated, it is not required.

The bold, bright-line rules requiring a special accomplice testimony instruction

apply only where the government’s case is founded solely on uncorroborated accomplice

testimony. In United States v. Gardner, we defined “uncorroborated accomplice

testimony” as “the only testimony directly tying the defendant into the criminal

transaction.” 244 F.3d 784, 789 (10th Cir. 2001) (quoting United States v. Williams, 463

F.2d 393, 395 (10th Cir. 1972)). In order for Mr. Freeman’s propounded rule to apply to

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this case, Mr. Freeman needs to show that the testimony of the accomplices in this case

was not “substantially corroborated.” United States v. Serrata, 425 F.3d 886, 900-01

(10th Cir. 2005) (citing United States v. Wiktor, 146 F.3d 815, 816-18 (10th Cir. 1998)

(per curiam)). In this regard, Mr. Freeman’s efforts are sorely wanting. Indeed, in

arguing that Gardner and Hill (among others) apply to this case and compelled a separate

accomplice testimony instruction, Mr. Freeman fails to acknowledge the existence of

corroborating evidence presented by the government.

We do not agree with Mr. Freeman’s suggestion that the corroborating evidence in

this case was “very limited.” Aplt. Br. at 37. In so arguing, Mr. Freeman downplays

without explanation the significance of the corroborating cell phone records and

incriminating recordings of Mr. Freeman’s phone calls. Id. Thus, Mr. Freeman has asked

us to apply an unwavering rule requiring a special jury instructions for uncorroborated

accomplice testimony without showing the essential premise — lack of corroboration.

Corroborating evidence need not be sufficient on its own in order to eliminate the

requirement of a special jury instruction; instead, other evidence that has a “net effect” of

“tend[ing] to corroborate” accomplice testimony is all that is needed to escape the bright-

line rule requiring a special jury instruction. United States v. Williams, 463 F.2d 393, 396

(10th Cir. 1972) (distinguishing from United States v. Owens, 460 F.2d 268 (10th Cir.

1972), where corroborating evidence was offered in support of accomplice testimony);

see also United States v. Whaler, 219 F. App’x 821, 824 (10th Cir. 2007) (unpublished)

(declining to require a separate accomplice testimony jury instruction where independent

evidence supported that testimony). Furthermore, accomplices may testify about matters

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not addressed by other evidence so long as their testimony as a whole is substantially

corroborated. United States v. Serrata, 425 F.3d 886, 901 (10th Cir. 2005).

In United States v. Owens, where this Court found plain error in failing to instruct

as to accomplice credibility, the “only evidence” directly implicating the defendant was

the testimony of his accomplices. 460 F.2d 268, 269 (10th Cir. 1972) (emphasis added).

While accomplice testimony was an important component of the evidence of Mr.

Freeman’s guilt, his conviction was not left to stand or fall on that evidence alone. Most

notably, he was tied to the scheme as described by Ms. Hopkins and the Ayalas with cell

phone records. Mr. Freeman was connected to the 204 Number with statements made to

law enforcement by Ms. Ayala, Ms. Gatlin’s testimony, and the traffic citation issued by a

local police officer. Unlike the corroborating evidence in Gardner, where a special

instruction was required, in Mr. Freeman’s case the corroboration went beyond merely

adding to the trustworthiness of the accomplices who testified. See United States v.

Gardner, 284 F.3d 784, 789 (10th Cir. 2001)

We recognize that we are reviewing the district judge’s decision for abuse of

discretion in contrast to some of the above-cited cases, which reviewed under the more

stringent plain error standard. But that alters neither our analysis nor our conclusion.

Phone records (among other things) tied Mr. Freeman to the scheme as described by

confessed accomplices. Thus, we conclude that a special accomplice testimony

instruction was not required.

Having determined that the district court was not required by law to issue an

instruction specifically addressing accomplice testimony, we are left only to ask whether

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the general witness credibility instruction satisfactorily advised the jury of the relevant

law. Because Mr. Freeman fails to argue that Instruction No. 9 was lacking or misleading

in some way other than not going far enough, we find no error in the final set of

instructions issued to the jury.6

Mr. Freeman also seeks to persuade us that the instructions were deficient beyond

the refusal to grant the specifically requested instruction. But these further criticisms of

the jury instructions were indisputably not raised before the trial judge; therefore, we

review these new challenges for plain error. See, e.g., United States v. Smith, 13 F.3d

1421, 1424 (10th Cir. 1994) (“[W]e review a court’s failure to instruct a jury for plain

error if the defendant fails to raise the contention at trial.”)

Mr. Freeman first tells us that the jury should have been instructed that, “You

should never convict any defendant upon the unsupported testimony of such a witness

unless you believe that testimony beyond a reasonable doubt.” Aplt. Br. at 40. This

suggested instruction has no applicability to Mr. Freeman’s case because it implicates an

absent premise — that the testimony of the witnesses in this case was “unsupported.”

6
In particular, Instruction No. 9 advised jurors to “think about the testimony of
each witness you have heard and decide whether you believe all or any part of what each
witness had to say, and how important that testimony was.” ROA Vol. I at 81. Among
the questions jurors were directed to ask themselves in evaluating witness credibility
were: “Did the witness have any particular reason not to tell the truth?”; “Did the witness
have a personal interest in the outcome in this case?”; and “Did the witness have any
relationship with either the Government or the defense?” Id. To this end, Instruction No.
9 satisfactorily cautioned jurors to properly weigh witnesses’ motives and incentives,
including those of accomplices who offered testimony that was not fully corroborated by
independent evidence.

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The testimony in this case was supported by independent corroborating evidence, as

established supra.

With regard to the second argument, Mr. Freeman says the district court also

should have instructed the jury that accomplice testimony “is inherently unreliable as a

class of evidence.” Aplt. Br. at 40. But again, this instruction relies on a faulty premise;

contrary to Mr. Freeman’s protestation, it is not a “basic canon of law” that corroborated

accomplice testimony is inherently unreliable. Indeed, as established in Part II, supra, a

conviction can be sustained even when the only evidence offered is uncorroborated

accomplice testimony. Thus, the district court committed no error, let alone plain error,

in failing to issue these alternative jury instructions.

IV. RULE 16 VIOLATION

A. Procedural Background

During and subsequent to his re-direct examination, the FBI’s lead case agent

revealed that he had shown the Ayalas a photograph of Ms. Hopkins’s live-in boyfriend at

some point before Mr. Freeman came to the FBI’s attention as a suspect. Ms. Hopkins’s

boyfriend roughly matched the generic physical description of the fourth accomplice in

the robbery.7 Each of the Ayalas quickly said that the man in the photograph was not the

getaway driver, and the photograph never again came up during the investigation. Once

Mr. Freeman’s attorney heard this testimony, he objected, claiming that the photograph

had been wrongfully withheld by the government under Federal Rule of Criminal

7
The description was that the fourth accomplice was approximately 5 feet, 9
inches tall and weighed approximately 160 pounds.

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Procedure 16. Mr. Freeman asked the district judge to declare a mistrial due to this

alleged discovery violation.

At that point, the judge held a sidebar on the matter. After hearing the parties’

arguments, the judge ultimately declined Mr. Freeman’s request, noting that the

photograph was not exculpatory. The judge did, however, advise the prosecution to be

more exhaustive in its disclosures in the future. Even though he did not ostensibly rule on

whether a Rule 16 violation occurred8, the district judge afforded Mr. Freeman’s counsel

a brief period of preparation and special line of re-cross-examination questioning about

the photograph. The defense attorney seized this opportunity and questioned the agent

about the photograph. ROA Vol. III at 290-312, 314-19.

B. Standard of Review

The district court’s failure to grant a mistrial upon a claimed Rule 16 violation is

reviewed for an abuse of discretion. United States v. Martinez, 455 F.3d 1127, 1129

(10th Cir. 2006) (quotations omitted). We will reverse the district court’s refusal only if

the decision was based on clearly erroneous factual findings, an erroneous conclusion of

law, or manifests a clear error of judgment. Id. (quotations omitted).

C. Rule 16 Violation and Remedy

8
To be sure, the district judge did say that he did not “feel that there [had] been a
violation [by] the government in turning over exculpatory material . . . .” ROA Vol. III at
312:4-9. But this statement did not explicitly express a view whether the photograph was
material under Rule 16. Thus, we cannot find any indication in the record that the judge
specifically stated his views on the threshold question whether a Rule 16 violation
occurred.

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 Under Federal Rule of Criminal Procdure 16(a)(1)(E)(i), prosecutors are required

to turn over to the defendant all evidence “material” to preparation of the defense. By its

terms, Rule 16 only applies where the defendant requests disclosure. Fed. R. Crim. P.

16(a)(1)(E). But here, the government does not contend that the rule does not apply to

this case, so we assume the defendant made a proper discovery request whose scope

encompassed the photograph in question.9

Mr. Freeman has a colorable claim that the government violated Rule 16 in failing

to disclose the photograph. But we need not worry about that threshold question, because

even if the government did violate Rule 16(a)(1)(E)(i) by failing to turn over the

photograph, the district court did not abuse its discretion in declining Mr. Freeman’s

request for a mistrial. Thus, we skip analysis of the threshold question whether a Rule 16

violation occurred.

The text of Rule 16 offers trial courts a host of discretionary remedies for

discovery violations. See Fed. R. Crim. P. 16(d)(2). These remedies include an order

requiring the prosecution to permit the defendant to inspect the undisclosed evidence,

granting a continuance, prohibiting introduction of the undisclosed evidence, and “any

other order that is just under the circumstances.” Id. Granting a mistrial would have

fallen under the last category of remedies. See United States v. Martinez, 455 F.3d 1127,

9
While the discovery rule expounded in Rule 16 is a reflection of the
constitutional due process right established in Brady v. Maryland, 373 U.S. 83, 87 (1963)
(“[S]uppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”), Mr. Freeman’s brief
devotes only one sentence to Brady.

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1130 (10th Cir. 2006) (citing United States v. Crouthers, 669 F.2d 635, 641 (10th Cir.

1982)). In allowing a extra line of cross-examination of the agent regarding the

undisclosed photograph, the district court granted a remedy for the alleged discovery

violation. ROA Vol. III at 310-11. We conclude that Mr. Freeman was not entitled to a

mistrial and the district court appropriately cured the alleged discovery violation.

When the government commits a Rule 16 violation, the district court is advised to

take several factors under consideration before fashioning a remedy for the violation.

Martinez, 455 F.3d at 1130. The district court should consider (1) the reasons for the

failure to produce the evidence in question; (2) the extent of the prejudice as a result of

the failure to produce; and (3) the feasibility of curing any prejudice with a continuance.

Id. Upon application of these factors, the district court is instructed to impose “the least

severe sanction” that results in compliance with the discovery requirements of Rule 16.

Id. (quoting United States v. Wicker, 848 F.2d 1059, 1061 (10th Cir. 1988)).

Our careful review of the trial transcript reveals that the district court considered

appropriate factors upon learning of the potential Rule 16 violation. As to the first factor,

the district judge said that the government was “a little lax in [its] responsibilit[y]” to turn

over the photograph. ROA Vol. III at 312. While this statement implies some degree of

fault on the part of the government, it indicates no willful wrongdoing. Indeed, defense

counsel expressly acknowledged that he “[did] not believe the . . . United States Attorney

. . . has held anything back from me.” ROA Vol. III at 293-94. The defense went on to

say “I believe [the prosecution] [has] been extremely forthright and candid in their

disclosures to [the defense].” Id. Thus, the reason for the failure to produce the evidence

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in question was a careless mistake at worst and does not weigh in favor of the drastic

remedy of a mistrial.

As to the second factor — extent of prejudice — the district judge said no

exculpatory information had been withheld because there was no information indicating

that the individual in the photograph was involved in the crime. Id. at 311. In other

words, there was at most minimal prejudice because the undisclosed information was not

exculpatory. On appeal, Mr. Freeman specifically attacks the district judge’s conclusion

as to the extent of the prejudice suffered, stating that earlier disclosure of the photograph

would have “greatly altered” his “defense strategy, theories, process, research, and

representation as a whole.” Aplt. Br. at 44-45. We hold that the district judge did not

reach a clearly erroneous factual finding in deciding that the photograph was non-

exculpatory. While it may be true that Mr. Freeman’s counsel might have presented a

different defense if he had known about the photograph, Mr. Freeman does not and

cannot show that the photograph tended to establish his innocence in any way. Further,

Mr. Freeman did not actually suffer any prejudice as a result of the inability to offer a

different defense based on knowledge that the police had shown the photograph to the

Ayalas. To support his argument, Mr. Freeman tells us he might have suggested to the

jury that Ms. Hopkins’ live-in boyfriend (the individual in the photograph) was the real

culprit in the bank robbery. But this would not have benefitted him, because no evidence

tied the boyfriend to the crime. Thus, we do not find clearly erroneous the district court’s

factual conclusion that Mr. Freeman suffered minimal prejudice as a result of the alleged

Rule 16 violation.

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 And as to the third factor, although the district judge did not specifically address

the feasibility of granting a continuance, he granted the defendant’s only requested

alternative remedy (further questioning of the case agent) after deciding there was no

cause for a mistrial. ROA Vol. III at 312. This represented the full extent of the

alternative remedy requested by Mr. Freeman. Thus, it operates as the functional

equivalent of a continuance in this case.

Giving proper deference to the factual findings of the district court, we are left

with no doubt that the remedy granted ably qualified as “the least severe sanction” to

achieve compliance with the government’s discovery obligations. Martinez, 455 F.3d at

1130 (quoting Wicker, 848 F.2d at 1061). Thus, the district court did not abuse its

discretion in declining to grant a mistrial for the alleged Rule 16 violation.

V. CONCLUSION

We AFFIRM Mr. Freeman’s conviction.

IT IS SO ORDERED.

ENTERED FOR THE COURT

William J. Holloway, Jr.
Circuit Judge

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