United States v. Burston

United States Court of Appeals,

Eleventh Circuit.

No. 96-8717.

UNITED STATES of America, Plaintiff-Appellee,

v.

Terry Lewis BURSTON, Defendant-Appellant.

Nov. 6, 1998.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:95-CR-
493), Owen Forrester, Judge.

Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.

TJOFLAT, Circuit Judge:

Following a jury trial in the United States District Court for the Northern District of Georgia,

Terry Lewis Burston was convicted of one count of postal robbery, 18 U.S.C. § 2114 (1994),1 and

one count of bank robbery, 18 U.S.C. § 2113(a) (1994).2 He appeals, contending that the evidence

was insufficient to convict him and challenging the district court's denial of motions to suppress

*
Honorable Stanley Marcus was a U.S. District Judge for the Southern District of Florida,
sitting by designation as a member of this panel, when this appeal was argued and taken under
submission. On November 24, 1997, he took the oath of office as a United States Circuit Judge
of the Eleventh Circuit.
1
Neither the indictment nor the judgment states which subsection(s) of § 2114 Burston was
charged with violating. The facts (and the briefs) suggest that the charge was based on §
2114(a), which states, "A person who assaults any person having lawful charge, control, or
custody of any mail matter or of any money or other property of the United States, with intent to
rob, steal, or purloin such ... property of the United States, shall ... be imprisoned not more than
ten years."
2
Section 2113(a) states, "Whoever, by force and violence, or by intimidation, takes ... money
or any other thing of value belonging to ... any bank ... [s]hall be fined under this title or
imprisoned not more than twenty years, or both."
certain evidence and its limitation of the cross-examination of one of the prosecution's witnesses.

We affirm.

I.

At trial, the Government presented witnesses who testified as follows: A person approached

the service counter at a United States post office in Atlanta (the "West End post office") on August

16, 1995, showed the clerk a robbery note, and then gave the clerk a bag and instructed her to "[p]ut

the money in the bag.... Hurry up, all of it." The clerk then placed an unidentified amount of money

in the bag;3 the robber took the bag and fled the premises. The robber was described by

eyewitnesses as an African-American male wearing a baseball cap and sunglasses, with unusual

looking hair. One of the eyewitnesses, a postal service employee, chased the robber out of the post

office. The employee lost sight of the robber, but shortly thereafter saw him speed away from the

area in a dark green Cadillac. The postal employee recorded the license plate number of the vehicle;

it was registered to Burston. The employee later identified Burston as the person who had robbed

the post office.

About two months later, an African-American male wearing a baseball cap and sunglasses,

with unusual looking hair, robbed an Atlanta bank. A few hours after the bank robbery, Burston

gave an acquaintance of his, Jacquelita Foster, a plastic bag and asked her to keep it. Soon

thereafter, postal inspectors searched Ms. Foster's residence and found the bag. The bag contained

a baseball cap, sunglasses, and a wig. Bank employees who were present during the robbery

identified these items as the ones worn by the robber. Postal inspectors also found, in the trunk of

3
At a preliminary hearing, a postal employee testified that approximately $1,415.94 was
stolen. However, no testimony as to the amount taken was offered at trial.

2
Burston's car, a pair of tennis shoes and a shirt that bank employees identified as being similar to

those worn by the robber. According to a bank employee, Burston's build was similar to that of the

robber.

The Government also presented the testimony of one of Burston's accomplices, Garland

Wilson. Wilson testified that Burston told him that he had robbed the West End post office.4

Wilson further testified that he and Burston had "cased" the bank a few days before the robbery, but

that he refused to rob the bank with Burston. Wilson testified that on the evening following the bank

robbery, Burston was carrying substantial sums of money and told Wilson that he had "hit" the bank.

He also testified that Burston took him to Ms. Foster's residence and showed him the outfit that he

had worn during the robbery. Finally, Wilson was shown a photograph (taken by bank security

cameras) of the person who robbed the bank; Wilson identified the robber as Burston.

In cross-examining Wilson, Burston brought out that Wilson had a prior felony conviction,

that he had spent time in jail, that he was facing charges for possession of crack cocaine, that he had

a crack cocaine addiction that affected his memory, and that he was testifying under a grant of use

immunity.

II.

Burston raises four claims on appeal: (1) that there was insufficient evidence to convict him

of postal robbery, primarily on the ground that the Government did not sufficiently establish that the

money stolen at the post office was money belonging to the federal government; (2) that there was

insufficient evidence to convict him of bank robbery; (3) that evidence taken from the trunk of his

4
Specifically, Wilson stated that as he and Burston were driving past the West End post
office, "[Burston] told me, he said, that's the Post Office he had, he going to court for. And that's
the one he had robbed."

3
car should have been suppressed; and (4) that the district court abused its discretion by not allowing

him to ask more questions regarding Garland Wilson's criminal history.

A.

Burston contends that the Government has produced insufficient evidence to convict him

of postal robbery. We review the sufficiency of the evidence de novo, but we view all facts and

make all reasonable inferences in favor of the Government.5 See United States v. Miller, 71 F.3d

813, 815-16 (11th Cir.1996). The test for whether the evidence is "sufficient" is whether a

reasonable factfinder could conclude that the defendant was guilty beyond a reasonable doubt. See

United States v. Sepulveda, 115 F.3d 882, 888 (11th Cir.1997). The evidence in this case meets this

standard—the Government presented an eyewitness who identified Burston as the robber (and

identified a car registered to Burston as the one in which the robber fled) and another witness who

testified that Burston confessed to robbing the post office.6 The Government also presented

evidence linking Burston to another robbery in which the perpetrator was wearing a disguise similar

to that used in the postal robbery. Presented with this evidence, a reasonable factfinder could

conclude that Burston was guilty beyond a reasonable doubt.

5
There is a dispute between the parties as to whether Burston renewed his Fed.R.Crim.P. 29
motion at the close of the evidence, thus properly preserving his challenges to the sufficiency of
the evidence. If Burston did not renew the motion, we would reverse on the ground of
insufficiency of the evidence "only to prevent a manifest miscarriage of justice." United States
v. Hamblin, 911 F.2d 551, 556-57 (11th Cir.1990). We hold, however, that even if the motion
were properly renewed, the evidence was sufficient to uphold the convictions. We therefore do
not need to decide this dispute.
6
The testimony by Garland Wilson on this point, see supra note 4, could reasonably be
understood as testifying to a confession.

4
 Burston, however, argues that this evidence is insufficient in light of the Government's

failure to establish that the funds taken at the post office were the property of the United States. He

points out that the postal clerk never testified that the money she gave to the robber was taken from

her post office drawer, and that no one testified that a certain sum of money was missing from the

post office after the robbery. We find this argument unpersuasive. Although the taking of property

of the United States is a required element of proof for a conviction under 18 U.S.C. § 2114(a), it

may, like any other element of a crime, be inferred from other evidence. See United States v. Key,

76 F.3d 350, 353-54 (11th Cir.1996) (holding in a bank fraud case that a jury could reasonably infer

the existence of the jurisdictional requirement that the targeted bank was federally insured). The

evidence presented in this case—that a postal clerk, standing at a postal counter, put money into bag

given to her by a robber—is sufficient for a reasonable factfinder to conclude that the money was

the property of the United States.7 We therefore conclude that the evidence is sufficient to sustain

Burston's conviction for postal robbery.

B.

Burston also contends that the Government presented insufficient evidence to sustain his

conviction for bank robbery, 18 U.S.C. § 2113. Applying the standard set forth in Sepulveda, 115

F.3d at 888—whether a reasonable factfinder could conclude that the defendant was guilty beyond

a reasonable doubt—we again find that the evidence was sufficient. The Government presented

7
Burston also makes the argument that the Government failed to establish that money
belonging to the United States Postal Service is "property of the United States." The
frivolousness of the argument is aptly demonstrated by Garcia v. United States, 469 U.S. 70, 105
S.Ct. 479, 83 L.Ed.2d 472 (1984), in which the Supreme Court split 6-3 over the question of
whether, given the statute's clear focus on postal crimes, section 2114's reference to "property of
the United States" was intended to apply to anything other than property of the United States
Postal Service.

5
evidence that, immediately after the bank robbery, Burston was in possession of the disguise used

at the robbery. The Government presented testimony from a witness who claimed that he had been

asked by Burston to participate in the bank robbery, and that Burston later told him that he had "hit"

the bank. The Government also showed the jury the videotape from the bank's security cameras,

giving the jury the opportunity to decide if the person shown on the cameras could have been

Burston. Viewing this evidence in the light most favorable to the Government, we hold that it was

sufficient to sustain the bank robbery conviction.

C.

The evidence used at trial against Burston included a pair of tennis shoes and a shirt, both

found in the trunk of his car, that were identified as being similar to those worn by the robber in the

bank robbery. These items were discovered by the Government pursuant to a search warrant

obtained by postal inspector Edwin Jeter. Burston moved twice prior to trial to suppress this

evidence; both motions were denied. Burston appeals these denials.

The search arose largely out of Jeter's questioning of Garland Wilson. Wilson was being

questioned in relation to recent postal robberies, and eventually admitted involvement in the robbery

of an Atlanta post office (other than the West End post office). During the questioning, Wilson

stated that he had seen Burston place a pistol in the trunk of his car on the day after the bank

robbery. He also stated that Burston had said that he was going to rob the bank, and that he had seen

Burston the night after the bank robbery with a wig and money. Unknown to Wilson, Jeter had

independent knowledge that the bank had been robbed by someone wearing a wig. Jeter also knew

that Burston was suspected of having robbed the West End post office while wearing a disguise

similar to that used in the bank robbery. Jeter placed all of this information in an affidavit, along

6
with the caveat that Wilson was a convicted felon. Based on this affidavit, the magistrate judge

found that Jeter had probable cause to search Burston's car for the gun, the disguise used in the

robberies, the money taken in the robberies, a robbery note, and a brown plastic bag.

Burston claims that the affidavit omitted certain material information about Wilson that, if

known, would have prevented a finding of probable cause. Specifically, Burston points out that the

affidavit did not mention the following: (1) Wilson, when first approached by the postal inspectors,

gave them a false name; (2) Wilson claimed that Burston was paying him to move his car, a claim

that turned out to be false;8 (3) Wilson lied to the postal inspectors about how he arrived at the

courthouse (where he was approached for questioning)—he claimed that he had taken a bus, when

he had in fact been driven there by Burston; and (4) although the affidavit mentioned that Wilson

was a convicted felon, it did not specify the number and nature of his felony convictions.

To attack the veracity of a warrant affidavit, a defendant must make a preliminary showing

that the affiant made intentional misstatements or omissions (or made misstatements with a reckless

disregard for their truthfulness) that were essential to the finding of probable cause. See Madiwale

v. Savaiko, 117 F.3d 1321, 1326-27 (11th Cir.1997); United States v. Cross, 928 F.2d 1030, 1040

(11th Cir.1991). Once the defendant makes such a showing, he is entitled to an evidentiary hearing

on the matter; if he prevails at the hearing, the search warrant is to be voided and the fruits of the

8
Wilson had accompanied Burston to the Atlanta Municipal Court, where Burston was
appearing in connection with state charges filed against him for the robbery of the West End Post
Office. Wilson was first approached by postal inspectors as he was leaving the courthouse and
getting into Burston's car. Wilson claimed that Burston had paid him to take the car away, but
the inspectors later discovered that Wilson was not carrying any money.

7
search must be excluded.9 See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57

L.Ed.2d 667 (1978).

Burston did not make the necessary showing to obtain an evidentiary hearing. The points

that Burston raises all attack the general credibility of Garland Wilson. Wilson's credibility in the

context of this affidavit, however, was not based on a general reputation for honesty. Rather, it was

based on independent corroboration of certain key facts (e.g., the bank robbery), Wilson's close

relationship with Burston, and the self-inculpating nature of some of Wilson's testimony. None of

the omissions to which Burston points calls these grounds of credibility into question. Cf. United

States v. Ofshe, 817 F.2d 1508, 1513 (11th Cir.1987) (holding that omission of informant's criminal

convictions and incarceration did not negate probable cause where informant had personal

knowledge and made self-inculpating statements); United States v. Haimowitz, 706 F.2d 1549,

1555-56 (11th Cir.1983) (holding that omission of information indicating informant's unreliability

did not negate probable cause where the informant had personal knowledge and some of his

statements had independent corroboration). The district court thus correctly denied Burston an

evidentiary hearing at which to attack the affidavit upon which the search warrant was based.

Given the validity of the affidavit, Jeter had probable cause to search Burston's automobile.

The search warrant was thus supported by probable cause, and the items obtained during that search

9
As noted previously, Burston's motions were motions to suppress, not motions for an
evidentiary hearing. The motions, however, contained requests for an evidentiary hearing as
contemplated by Franks v. Delaware. In essence, the motions were making alternative claims:
(1) The affidavit was invalid due to material omissions (and thus an evidentiary hearing was
required); (2) even if it was valid, it still did not provide probable cause to support the search
warrant (and thus the evidence obtained pursuant thereto should be suppressed).

8
were properly admitted into evidence. We therefore affirm the district court's denials of Burston's

motions to suppress.

D.

At trial, Burston sought to impeach the credibility of Garland Wilson by introducing

evidence (via cross-examination of Wilson) that Wilson had four felony convictions—two for theft

by taking, one for aggravated assault, and one for armed robbery. The district court limited Burston

to evidence that Wilson had "a felony conviction," apparently on the ground that testimony as to the

nature and number of Wilson's convictions lacked probative value.10 Burston argues that this

limitation constituted an abuse of discretion11 and a violation of his Sixth Amendment right of

confrontation, and that his conviction should therefore be vacated.

The admission of prior convictions as evidence to impeach the credibility of a witness is

governed by Rule 609 of the Federal Rules of Evidence. Rule 609(a)(1) states, in relevant part:

For the purpose of attacking the credibility of a witness, ... evidence that a witness other than
an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime

10
The record is woefully sparse regarding the details of the district court's decision in this
matter. The decision appears to have been made in an off-the-record pretrial conference. At
trial, Burston's counsel made no attempt to inquire into the nature and number of Wilson's
convictions; during cross-examination, she limited her inquiry to the question, "[Y]ou've been
convicted of a felony before, right?", to which Wilson responded, "Yes." At the close of the
Government's case, Burston objected on the record to the court's ruling regarding prior
convictions. The court stated that "none of those convictions add anything on the issue of
credibility," and overruled the objection.

The Government implicitly concedes (by not raising the issue) that the district
court did in fact exclude evidence of the nature and number of felony convictions and
that Burston properly preserved his objection to this exclusion.
11
Evidentiary rulings are reviewed for an abuse of discretion. See General Elec. Co. v. Joiner,
522 U.S. 136,—, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997); United States v. Johnson, 139
F.3d 1359, 1365 (11th Cir.1998).

9
 was punishable by death or imprisonment in excess of one year under the law under which
the witness was convicted....

Fed.R.Evid. 609(a)(1). Rule 403 states, "Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence." Fed.R.Evid. 403.

We thus face a three-fold inquiry in resolving Burston's claim. First, we must determine

whether evidence that Wilson had "a felony conviction," standing alone, was sufficient to satisfy

Rule 609's requirement that "evidence that a witness other than an accused has been convicted of

a crime shall be admitted." Second, if it was not sufficient, we must determine whether evidence

of the nature and number of those convictions was nevertheless properly excluded under Rule 403.

Finally, if the evidence was improperly excluded, we must determine whether this error necessitates

reversal.

1.

Rule 609 requires that evidence of prior convictions of a non-defendant witness be admitted

if (1) the convictions are for crimes punishable by death or imprisonment in excess of one year, (2)

the convictions are less than ten years old, and (3) the evidence is being used to attack the witness'

credibility.12 See Fed.R.Evid. 609(a)-(b). The Government concedes that these requirements are

met for all four of Wilson's convictions that Burston sought to introduce into evidence. The only

question on appeal is whether admitting evidence that Wilson had a felony conviction, while

12
The rule also requires, by incorporating Rule 403 by reference, that the probative value of
the evidence not be substantially outweighed by the prejudice, confusion, or delay created by
admission of the evidence. We discuss this requirement in part II.D.2, infra.

10
excluding evidence of the nature and number of those convictions, meets Rule 609's requirement that

evidence of prior convictions "shall be admitted."

The implicit assumption of Rule 609 is that prior felony convictions have probative value.13

Their probative value, however, necessarily varies with their nature and number. See United States

v. Cathey, 591 F.2d 268, 276 (5th Cir.1979) ("The probative value of a prior conviction is a function

of at least two factors, the nature of the past crime and the remoteness of the conviction."). Evidence

of a murder conviction says something far different about a witness' credibility than evidence of a

conviction for a minor drug offense, although both may constitute a prior felony conviction.

Furthermore, evidence of fifteen murder convictions says something different about a witness'

credibility than evidence of only one such conviction. We are not certain what evidence of two

convictions for theft by taking, one conviction for armed robbery, and one conviction for aggravated

assault says about Garland Wilson's credibility, but we are certain that the jury should have been

given the opportunity to make that decision.

Our case law supports this reading of Rule 609(a)(1). We have suggested, in the context of

claims that the district court admitted too much evidence relating to prior convictions, that Rule

609(a)(1) requires the trial court to admit evidence of the nature and date of each conviction. See

United States v. Tumblin, 551 F.2d 1001, 1004 (5th Cir.1977);14 see also United States v. Bray, 445

F.2d 178, 182 (5th Cir.1971) (reaching the same conclusion regarding admissible evidence relating

13
The definition of which crimes are admissible under Rule 609, namely, crimes "punishable
by death or imprisonment in excess of one year," mirrors the traditional definition of a felony.
See Fed.R.Evid. 609 advisory committee's note.
14
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

11
to prior convictions, prior to the enactment of Rule 609); Tucker v. United States, 409 F.2d 1291,

1294 n. 1 (5th Cir.1969) (same). Other circuits considering this issue have also concluded that Rule

609(a)(1) requires admission of the number and nature of prior convictions. See Doe v. Sullivan

County, 956 F.2d 545, 551 (6th Cir.1992); United States v. Guerue, 875 F.2d 189, 190 (8th

Cir.1989); see also United States v. Baylor, 97 F.3d 542, 544-45 (D.C.Cir.1996) (suggesting same

interpretation in the context of a claim that too much prior conviction evidence was admitted);

United States v. Albers, 93 F.3d 1469, 1479-80 (10th Cir.1996) (same); United States v. Robinson,

8 F.3d 398, 409 (7th Cir.1993) (same). See generally 28 Charles Alan Wright & Victor James Gold,

Federal Practice and Procedure § 6134, at 221-27 (1993) (examining alternative approaches to Rule

609(a)(1) and concluding that the best approach is to admit evidence of the number, nature, time,

place of, and punishment for each conviction).

We therefore conclude that Rule 609(a)(1) requires a district court to admit evidence of the

nature and number of a non-defendant witness' prior felony convictions.

2.

Evidence that is otherwise admissible under Rule 609(a)(1) is to be excluded "if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence." Fed.R.Evid. 403 (incorporated by reference in Rule

609(a)(1)). The only reason given by the district court for excluding the evidence of the nature and

number of Wilson's prior convictions was that they lacked probative value. As noted in part II.D.1,

supra, however, the implicit assumption of Rule 609 is that prior convictions have probative value,

and that probative value is likely to vary depending on the number and type of convictions.

12
Furthermore, the district court made no finding, and we see no basis for a finding, that evidence of

the nature and number of Wilson's convictions would have created a substantial danger of prejudice,

confusion, or delay. We therefore conclude that the district court abused its discretion by excluding

evidence of the nature and number of Wilson's convictions.

3.

Having concluded that the district court erred by excluding evidence of the nature and

number of Wilson's convictions, we must now determine the effect of that error. Erroneous

evidentiary rulings will not result in reversal if they are "harmless," meaning that the party asserting

error has not shown prejudice to a substantial right. See Judd v. Rodman, 105 F.3d 1339, 1341 (11th

Cir.1997); United States v. Lang, 904 F.2d 618, 627 n. 15 (11th Cir.1990). In the context of Rule

609, error is harmless if the witness' credibility was sufficiently impeached by other evidence, or if

the Government's case was strong enough to support a conviction even apart from the witness'

testimony. See United States v. Georgalis, 631 F.2d 1199, 1203-04 (5th Cir. Unit B 1980); Gibson

v. United States, 575 F.2d 556, 559 (5th Cir.1978).

In this case, Burston was permitted to present substantial evidence calling into question

Garland Wilson's credibility. He presented evidence that Wilson had a criminal record, that he had

lied to postal inspectors about a variety of matters, that he was a crack addict (and that this addiction

affected his memory), that he was presently incarcerated and facing new criminal charges, and that

he had been granted use immunity for anything he said in his testimony. We thus conclude that the

jury had sufficient evidence with which to assess Wilson's credibility, and that the marginal impact

of evidence relating to the specifics of Wilson's past offenses would have been de minimis.

13
 In addition, the Government's case was strong enough to support Burston's conviction even

apart from the testimony of Garland Wilson. As to the postal robbery, the Government had an

eyewitness who identified Burston as the robber and who had seen Burston's car leaving the scene

of the crime. As to the bank robbery, the Government had evidence that Burston was in possession

of the disguise used in the robbery, a videotape of the robbery that was shown to the jury, and

eyewitness testimony that Burston's build resembled that of the robber. The Government also

presented evidence that the same modus operandi was used in both robberies, meaning that evidence

of involvement in one provided some evidence of involvement in the other. The testimony of

Garland Wilson, while helpful, was not critical to the Government's case.

The district court's exclusion of evidence relating to the number and nature of Garland

Wilson's convictions was therefore harmless error, and thus is not grounds for reversal.

4.

In addition to the abuse of discretion claim, Burston argues that the district court's refusal

to admit evidence of the nature and number of Wilson's convictions violated his right to

confrontation under the Sixth Amendment. See U.S. Const. amend. VI. The Confrontation Clause

requires the admission of impeachment evidence if "a reasonable jury would have received a

significantly different impression of the witness' credibility had counsel pursued the proposed line

of cross-examination." United States v. Garcia, 13 F.3d 1464, 1469 (11th Cir.1994). For the

reasons stated in part II.D.3, supra, in light of the extensive evidence presented to impeach Wilson's

credibility, cross-examination relating to the nature and number of Wilson's convictions would have

had a minimal effect on the credibility ascribed to him. We therefore find no Sixth Amendment

violation.

14
 III.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

15