Case: 08-10932 Document: 00511064120 Page: 1 Date Filed: 03/26/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 26, 2010
No. 08-10932 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JASON MONTES; MARGARITO ARMIJO,
Defendants-Appellants
Appeal from the United States District Court
for Northern District of Texas
Before REAVLEY, DAVIS, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
In a scene reminiscent of the long ago days of Butch Cassidy and the
Sundance Kid, Jason Montes (“Montes”) and Margarito Armijo (“Armijo”) were
involved in a bank robbery spree. Much like the now infamous characters, their
careers as bank robbers were short-lived and came to an end when they were
captured by authorities. They now appeal their convictions and Montes also
appeals his sentence. Finding no reversible error, we affirm.
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I.
Montes and Armijo, along with others, participated in at least eight armed
bank robberies in the Dallas area between July and September 2006 and stole
more than one hundred thousand dollars. In most of the bank robberies, the
same basic modus operandi was followed. The bank robbers drove to the target
location in a stolen, four-door Honda Accord; ran into the bank wearing dark
clothes, gloves, and ski masks and carrying guns; demanded money from the
tellers and put it in a large, dark-colored duffel bag; and exited the bank within
one minute of entering. They drove off in the Accord and left the car - still
running, with at least one of the doors open - within a mile of the bank and had
someone pick them up, usually in a white Ford Expedition, to continue their
escape. Montes participated in the bank robberies by stealing the Hondas the
day before the robberies and by entering the bank armed and demanding money.
Armijo sometimes entered the banks carrying a gun and other times acted as the
pick-up driver who retrieved the robbers at the place where they abandoned the
Accord.
Armijo and Montes were indicted on several counts of bank robbery in
violation of 18 U.S.C. § 2113(a) and (b) and 18 U.S.C. § 2; conspiring to commit
bank robbery in violation of 18 U.S.C. § 371; and possessing a firearm in
furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1). Both
moved to suppress their post-arrest written confessions; the district court denied
their motions. At trial, they were found guilty on all counts. The court
sentenced Armijo to 4,692 months’ imprisonment and Montes to 4,705 months’
imprisonment.
II.
On appeal, Montes and Armijo raise six points of error which we address
in turn.
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A.
Armijo first contends that the district court erred by not suppressing his
post-arrest written confession because government agents continued to question
him after he allegedly asked for an attorney. In reviewing a district court’s
denial of a defendant’s motion to suppress, this court reviews factual findings,
including credibility determinations, for clear error, while we review legal
conclusions de novo. United States v. Solis, 299 F.3d 420, 435 (5th Cir. 2002);
United States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994). “A factual finding is not
clearly erroneous as long as it is plausible in light of the record as a whole.”
United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). Where a district
court’s denial of a suppression motion is based on live oral testimony, the clearly
erroneous standard is particularly strong because the judge had the opportunity
to observe the demeanor of the witnesses. Solis, 299 F.3d at 436; Foy, 28 F.3d at
474. We review the evidence in the light most favorable to the prevailing party,
which in this case is the government. Solis, 299 F.3d at 436.
It is black letter law that when a suspect who is subject to custodial
interrogation exercises his right to counsel, law enforcement officers must cease
questioning until counsel is made available to him, unless the accused himself
initiates further communication, exchanges or conversations with the officers.
Edwards v. Arizona, 451 U.S. 477, 485-86 (1981). Generally, an invocation by
a suspect of his right to counsel that is ignored by law enforcement officers
requires that the suspect’s statements made after the request be excluded by the
trial court. Id. If a suspect, however, makes an ambiguous or equivocal
reference to an attorney there is no requirement that law enforcement cease
questioning. See Davis v. United States, 512 U.S. 452, 459 (1994) (holding that
an ambiguous reference to counsel does not invoke the right to an attorney); see
also United States v. Scurlock, 52 F.3d 531, 535-37 (5th Cir. 1995). Further, the
investigator conducting the questioning has no obligation to attempt to clarify
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the ambiguous comment of the accused. Davis, 512 U.S. at 461. Thus, “law
enforcement officers may continue questioning until and unless the suspect
clearly requests an attorney.” Id.
In this case, Armijo signed a waiver which detailed his ability to invoke
his right to counsel at any time and end questioning. During the suppression
hearing, government agents testified that after Armijo waived his rights they
asked “if he wanted to tell his side of the story.” Armijo began discussing his
crimes and “there came a point when [the agents asked him] to write out a
statement.” At that point, the agents testified that Armijo said something to the
effect of, “Maybe I should get an attorney” or “Do I need an attorney?” The
officers testified unequivocally that the request was “vague” and “wasn’t a
demand;” Armijo never “affirmatively sa[id] he wanted an attorney.” After
hearing Armijo’s contrary testimony, the district court found that since Armijo
did not clearly invoke his right to counsel, as required, his post-arrest
statements made after his ambiguous request for an attorney were admissible.
We see no reason to disturb that conclusion.
Generally, our finding that the district court’s determination that Armijo’s
reference to an attorney was ambiguous would end our inquiry. However,
Armijo argues that, because he presented evidence at the suppression hearing
that he had a learning disability, the district court should have held that his
ambiguous statements requesting an attorney sufficiently invoked his right to
counsel and required cessation of the interview. Nothing in our review of the
record supports Armijo’s claim. Instead, the record shows that Armijo’s alleged
learning disability did not impair his ability to understand and unequivocally
invoke his right to counsel when two of the same government agents, who later
interviewed him post-arrest, tried to question him at an earlier time concerning
the same bank robberies for which he has now been convicted. This clearly
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supports the district court’s finding that Armijo understood his rights and could
have unambiguously invoked his right to counsel but failed to do so.
B.
In his second issue, Armijo argues that the district court improperly
instructed the jury on the firearms offenses. He also argues that the jury
instructions are “convoluted and extremely hard to understand.” In assessing
a jury instruction, this court considers whether it is a “correct statement of the
law,” United States v. Pompa, 434 F.3d 800, 805 (5th Cir. 2005) (internal
quotation marks omitted), whether it “clearly instructs jurors,” id., and whether
it is “factually supportable,” United States v. Mendoza-Medina, 346 F.3d 121,
132 (5th Cir. 2003). Because Armijo failed to object at trial, we review the
contents of the district court’s jury instruction for plain error. See United States
v. Partida, 385 F.3d 546 (5th Cir. 2005).
The relevant statute of conviction punishes “any person who, during and
in relation to any . . . crime of violence . . . carries a firearm.” 18 U.S.C. §
924(c)(1). Notably, the district court adopted our pattern jury instructions and
instructed the jury as follows:
Title 18, United States Code, Section 924(c)(1), makes it a crime for
anyone to use or carry a firearm during and in relation to a crime of
violence or to possess a firearm in furtherance of such a crime.
For you to find a defendant guilty of this crime, you must be
convinced that the government has proven each of the following
beyond a reasonable doubt:
First: That the defendant committed the crime alleged in Counts 1,
3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33[,] or 35. I
instruct you that bank robbery, attempted bank robbery, and
conspiracy to commit bank robbery are crimes of violence; and
Second: That the defendant knowingly used or carried a firearm
during and in relation to, or knowingly possessed a firearm in
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furtherance of, the defendant’s alleged commission of the crime
charged in Counts 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29,
31, 33[,] or 35.
To prove the defendant “used” a firearm in relation to a crime of
violence, the government must prove that the defendant actively
employed the firearm in the commission of Counts 1, 3, 5, 7, 9, 11,
13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33[,] or 35, such as a use that is
intended to or brings about a change in the circumstances of the
commission of Counts 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27,
29, 31, 33[,] or 35.
To prove the defendant “carried” a firearm, the government must
prove that the defendant carried the firearm in the ordinary
meaning of the word “carry,” such as by transporting a firearm on
the person or in a vehicle. The defendant’s carrying of the firearm
cannot be merely coincidental or unrelated to the crime of violence.
To prove the defendant possessed a firearm “in furtherance,” the
government must prove that the defendant possessed a firearm that
further, advances, or helps forward the crime of violence.
“In relation to,” means that the firearm must have some purpose,
role, or effect with respect to the drug trafficking crime.
Armijo was charged with section 924(c)(1) violations in Counts 2, 4, 6, 8,
10, 12, 14, 16, 18, 20, 26, 28, 30, 32, 34, and 36. Armijo acknowledges that the
jury charge “instructed on the crime of ‘using/carrying a firearm during
commission of a drug trafficking crime or crime of violence’” but contends that
the charge “only pertained to the odd-numbered counts in the indictment” -1, 3,
5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33, [and] 35, which charged bank
robbery, attempted bank robbery, and conspiracy to commit bank robbery. In
other words, Armijo contends that the jury was never properly instructed on the
elements of a section 924(c)(1) violation.
Armijo’s arguments are misplaced. The charge refers to the
odd-numbered counts only because those counts allege the predicate “crime of
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violence” offenses to which each individual count alleging use of a firearm
attached. Armijo misreads the instruction by interpreting its references to the
odd-numbered counts as meaning that the charge was intended to instruct the
jury on the elements on those counts, and not on the elements of the section
924(c) counts. Taken as a whole, the district court’s jury instructions correctly
stated the law and simply instructed the jury to convict on each and every
firearm count that it found Armijo guilty of in the corresponding odd-numbered
bank robbery count. For similar reasons, we find that the jury instructions were
not “convoluted or hard to understand.”
C.
Lastly, Armijo argues that his attorney rendered ineffective assistance of
counsel because at certain points in his examination of a government agent and
Armijo, he mentioned a co-conspirator’s written statement to authorities in a
manner that allegedly suggested that the co-conspirator might have
incriminated Armijo in some criminal activity. Our standards for evaluating
claims of ineffective assistance of counsel under Strickland v. Washington, 466
U.S. 668 (1984) are well established:
First, [a defendant] must demonstrate that his attorney’s
performance fell below an objective standard of reasonableness.
This court has described that standard as “requiring that counsel
research relevant facts and law, or make an informed decision that
certain avenues will not be fruitful.” Second, [a defendant] must
also prove that he was prejudiced by his attorney’s substandard
performance. “[T]o prove prejudice, [a defendant] must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.”
United States v. Herrera, 412 F.3d 577, 580, (5th Cir. 2005) (footnotes omitted)
(quoting United States v. Conley, 349 F.3d 837, 841 (5th Cir. 2003)).
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However, we do not reach Armijo’s Strickland challenge because it is
premature.
[T]he “general rule in this circuit is that a claim of ineffective
assistance of counsel cannot be resolved on direct appeal when the
claim has not been raised before the district court since no
opportunity existed to develop the record on the merits of the
allegations.” Only in those rare occasions where the record is
sufficiently developed will the court undertake to consider claims of
inadequate representation on direct appeal. If we cannot fairly
evaluate the claim from the record, we must decline to consider the
issue without prejudice to a defendant's right to raise it in a
subsequent proceeding.
United States v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008). This case falls within
that general rule because the record reveals neither the reasons for Armijo’s
attorney’s decisions nor the availability of alternative strategies. See United
States v. Aguilar, 503 F.3d 431, 436 (5th Cir. 2007) (refusing to hear a Strickland
claim because “the district court did not hold a hearing and the record does not
provide sufficient detail about trial counsel’s conduct and motivations”); United
States v. Garcia-Jasso, 472 F.3d 239, 245 (5th Cir. 2006) (refusing to hear a
Strickland claim because “the reasons for [the attorney’s] decisions and any
plausible alternative strategies available to him are unclear”); United States v.
Gordon, 346 F.3d 135, 137 (5th Cir. 2003) (refusing to hear a Strickland claim
because “[t]he record has not been developed with regard to counsel’s motivation
for his trial tactics”). While Armijo may raise this argument in a later
proceeding, it is not a ground for reversal in this appeal. See, e.g., United States
v. Villegas-Rodriguez, 171 F.3d 224, 230 (5th Cir. 1999) (“Normally, the
appropriate mechanism for raising this claim [an ineffective assistance of
counsel claim] would be a habeas corpus proceeding pursuant to 28 U.S.C. §
2255.”).
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D.
In his first issue, Montes challenges his convictions by arguing that the
evidence presented at trial was insufficient to support a guilty verdict. Because
Montes raised his sufficiency argument in a motion for judgment of acquittal, we
review the district court’s denial of that motion by examining the evidence and
all reasonable inferences drawn therefrom in the light most favorable to the
verdict, and asking whether a rational trier of fact could have found guilt beyond
a reasonable doubt. See, e.g., United States v. Valdez, 453 F.3d 252, 256 (5th Cir.
2006). “[I]t is not necessary that the evidence exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every conclusion except
that of guilt, provided a reasonable trier of fact could find that the evidence
establishes guilt beyond a reasonable doubt.” United States v. Bell, 678 F.2d
547, 549 & n.3 (5th Cir. Unit B 1982) (en banc). “A jury is free to choose among
reasonable constructions of the evidence.” Id. at 549.
As noted above, Montes was charged with and convicted of several counts
of bank robbery, several counts of conspiracy to commit bank robbery, and
several counts of possessing a firearm in furtherance of a crime of violence in
relation to the bank robberies. Each charged offense required the government
to prove Montes’s identity as the culprit beyond a reasonable doubt. Montes
argues that the government failed to meet its burden.
After reviewing the evidence presented at trial, we hold that the evidence
presented by the government was more than ample to establish Monte’s identity
as the culprit and therefore sufficient to sustain the verdict. Montes admitted
to government agents that he committed the crimes for which he was indicted.
He testified at trial that he was induced to confess by the government’s false
promise of a 15-year sentence. The jury was entitled to reject this new story and
to believe, as he had previously admitted, that he had committed the bank
robberies. See United States v. Roberson, 6 F.3d 1088, 1093 (5th Cir. 1993). In
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addition to his own confession, the government presented the following evidence
which clearly supports the verdict: (1) Armijo’s confession implicating Montes as
a co-conspirator in the bank robberies; (2) Montes’s cell phone records, which
show that he called his co-conspirators on the days the robberies occurred; (3)
Montes’s work records, which showed he was absent from work on the days the
robberies occurred; and (4) Montes’s admission that he quit work in August 2006
and had no legitimate means of income after that point. The jury evaluated
Montes’s confession and his in-court denial, as well as other evidence of his guilt,
and made a rational decision to convict based on the evidence. Given the
amount of inculpatory evidence in the record, we cannot say that the jury was
irrational in finding Montes guilty of the crimes alleged in the indictment.
E.
While testifying, Montes alleged he did not commit any of the robberies
except the last one which occurred on September 30, and that he was forced to
do so because he was afraid that he would be harmed if he did not participate.
Accordingly, in another sufficiency of the evidence argument, he asserts that he
carried his burden of proof with respect to his justification defense of duress and
that the district court wrongly denied his motion for judgment of acquittal. The
only evidence Montes provided to support his duress defense was his own
testimony. Thus, in reviewing this claim, we asks whether, viewing the evidence
in the light most favorable to the verdict, a rational juror could have discredited
Montes’s testimony. See United States v. Leggett, 299 F. App’x 372, 374 (5th Cir.
2008) (unpublished).
A duress defense requires that the defendant present evidence of each of
the following four elements:
(1) that the defendant or a member of his family was under an
unlawful and present, imminent, and impending threat of
such a nature as to induce a well-grounded apprehension of
death or serious body injury;
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(2) that he did not recklessly or negligently place himself in a
situation in which it was probable that he would be forced to
choose the criminal conduct;
(3) that he had no reasonable legal alternative to violating the
law, that is, he had no chance to refuse to do the criminal act
and to avoid the threatened harm; and
(4) that there was a direct causal relationship between the
criminal action taken and the avoidance of the threatened
harm.
United States v. Willis, 38 F.3d 170, 175 (5th Cir. 1994).
While testifying, Montes alleged that in early September, while driving to
his house, he saw one of his co-conspirators washing a new SUV. Montes then
claimed that he stopped by another alleged bank robber’s house and asked him
and his brother how the first alleged bank robber was able to buy the new SUV.
The brothers “started smiling” and took him to a room and sat him down. They
were joined by four other members of the conspiracy. In the room, the brothers
told Montes, “[L]ook, . . . we’re going to tell you what we’re doing, but once we
tell you[,] . . . you already know. And once you already know, then you got to do
. . . . [Y]ou want . . . to see how we’re making money?” At that time, Montes
stated, all of the men pulled out “these big old wads of cash.” Then they told
Montes, “we’re robbing banks.”
On cross-examination, the government presented ample evidence that the
September 30 bank robbery was not the first one that Montes participated in.
The evidence presented included Montes’s confessions that he had participated
in the earlier robberies, cell phone records that he called his co-conspirators
around the time of the robberies, and that he was off of work on some of the days
of the robberies. With regard to Montes’s claim that he felt compelled to commit
the September 30 robbery once the group told him how they were making money,
the government presented evidence that Montes attended three separate
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meetings over a two-week period to plan the September 30 robbery. During this
time, Montes came and went freely from his co-conspirator’s houses.
Our review of the record indicates that Montes failed to establish any of
the elements of duress. He did not prove that he was under a “present,
imminent, and impending threat,” because he did not establish that any threat
was made. Willis, 38 F.3d at 175. Montes also failed to prove that the alleged
threat was of “imminent” harm. In his version of events, the meeting at which
the brothers told him about the bank robberies was two weeks before the
September 30 robbery. During those two weeks, there was more than enough
time for Montes to alert law enforcement about his concerns for his safety. For
these reasons, the district court was correct in concluding that Montes did not
prove that he “had no reasonable legal alternative to violating the law.” Id.
Finally, Montes failed to prove that there was “a direct causal relationship . . .
between the criminal action taken and the avoidance of the threatened harm.”
Id. As noted above, our review of the record shows that Montes had begun
committing the robberies well before September 30 and was motivated by the
opportunity to make money. Based upon the above discussion, the district court
did not err in rejecting Montes’s duress defense.
F.
As the final arrow in his quiver, Montes contends that the district court
erred in concluding that it had no authority to impose a sentence below the
statutory minimum on his section 924(c) convictions. Although this court
“ordinarily lacks authority to review a district court’s refusal to depart below a
statutory minimum, . . . we may review de novo a district court’s decision that
it lacked the authority to do so.” United States v. James, 468 F.3d 245, 247 (5th
Cir. 2006).
In United States v. Krumnow, 476 F.3d 294, 295-98 (5th Cir. 2007), we
held that district courts could impose a sentence of imprisonment below a
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statutory minimum only if: (1) the government so moves pursuant to 18 U.S.C.
§ 3553(e), asserting the defendant’s substantial assistance to the government;
or (2) the defendant meets the “safety valve” criteria set forth in 18 U.S.C. §
3553(f). Otherwise, post-Booker sentencing courts lack discretion to depart
below relevant statutory minimums. Id. at 297.
Montes does not contend otherwise. Instead, he argues that United States
v. James, 468 F.3d 245 (5th Cir. 2007) gave the district court the discretion to
depart below the mandatory minimum sentence. In James, this court opined
that “[t]here is . . . no statutory provision or jurisprudential holding that would
prohibit a court from departing below the section 924(c)(1) minimum if the court
felt that such a sentence was appropriate.” Id. at 248. This court’s holding in
Krumnow, however, forecloses any interpretation of James’s language that
would imbue district courts with discretion to depart below the mandatory
minimum absent a substantial assistance motion under 18 U.S.C. § 3553(e) or
application of the 18 U.S.C. § 3553(f) safety valve, both of which are not present
in the instance case. In Krumnow, this court clarified its ruling in James and
expressly held that the language upon which Montes now relies was “simply
either subsumed in the analysis for why the § 924(c) sentence may be reduced
if the Government requests it or is dictum. Restated, this statement [the one
upon which Montes now relies] in James is not its holding.” Krumnow, 476 F.3d
at 297-98 (emphasis in original and some citations omitted). Thus, the district
court could not depart below the sentences it actually imposed for the section
924(c) convictions.
III.
For the foregoing reasons, Armijo’s and Montes’s convictions are affirmed
as is Montes’s sentence.
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