FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 24, 2013
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
No. 12-6024
v. (D.C. No. 5:10-CR-00371-D-2)
(W.D. Okla.)
DWAYNE D. MOTSENBOCKER,
Defendant–Appellant.
ORDER AND JUDGMENT*
Before LUCERO, HARTZ, and MATHESON, Circuit Judges.
Dwayne Motsenbocker was convicted of: (1) bank robbery with a dangerous
weapon; (2) using a firearm during a crime of violence; and (3) being a felon in
possession of a firearm. On appeal, he challenges the admission of certain coconspirator
statements as well as the sufficiency of the evidence underlying his convictions.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 32.1.
I
Motsenbocker’s convictions stem from his involvement in an armed bank robbery
carried out by Leonard Etheridge. At Motsenbocker’s jury trial, the prosecution
submitted evidence describing the following sequence of events.
Motsenbocker shared a cell in prison with Etheridge and they became friends.
After Etheridge was released from prison in 2009, Motsenbocker hired Etheridge on
remodeling jobs, allowed Etheridge to stay with him, and co-signed a bond for Etheridge
after an arrest.
On November 6, 2010, a person carrying a gun robbed a BancFirst branch in
Oklahoma City, Oklahoma; witnesses identified Etheridge as the robber. Etheridge was
observed leaving the scene in a red pickup truck. Soon after, he abandoned the truck and
set it on fire a few blocks from the bank.
Evidence submitted at trial indicated that Motsenbocker then transported
Etheridge away from the area. Motsenbocker’s movements on the days surrounding the
robbery repeatedly placed him in the vicinity of the BancFirst branch and in Etheridge’s
company. These activities were chronicled by witnesses and Motsenbocker himself, as
well as records from Motsenbocker’s GPS ankle monitor. The day before the robbery,
Motsenbocker drove approximately one-tenth of a mile south of the BancFirst branch and
stopped in a 7-Eleven parking lot. From that parking lot, the BancFirst branch is visible.
After stopping for three minutes, Motsenbocker met Etheridge for approximately ten
minutes at a nearby abandoned elementary school.
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Motsenbocker picked up Etheridge on the morning of the robbery. About fifteen
minutes before the robbery, Motsenbocker stopped immediately south of where Etheridge
would later leave the red pickup truck. At the same time Etheridge was robbing the
BancFirst, Motsenbocker’s GPS monitor placed him at the nearby 7-Eleven he had
visited the day before. About two minutes after the bank robbery, around when Etheridge
was abandoning his truck, Motsenbocker left the 7-Eleven and returned to the location
immediately south of where Etheridge set the truck on fire. Motsenbocker then drove
through a residential neighborhood back to his condo, taking an unusual, indirect route.
The day after the robbery, Motsenbocker visited a hotel where Etheridge had
arranged to stay with his girlfriend, Tammy Howard. Later that afternoon, bounty
hunters and police officers went to Motsenbocker’s condo, searching for him and
Etheridge. When a neighbor alerted him of the law enforcement presence at his
apartment complex, Motsenbocker cut off his GPS ankle monitor and fled.
Investigators located Motsenbocker’s abandoned van about a week later and found
inside a letter Motsenbocker had written to his wife. In the letter, Motsenbocker admitted
he had made “bad choices” and confessed he was “scared to death of going back to
prison.” Shortly thereafter, police located and arrested Motsenbocker.
While in custody, Motsenbocker admitted to law enforcement officials that he had
seen Etheridge with a gun in the weeks before the robbery. Motsenbocker also confessed
that he had given Etheridge a ride the morning of the robbery. While they were driving,
Etheridge had said “I’m going to get that one” and pointed at the BancFirst branch.
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However, Motsenbocker denied dropping Etheridge off at the bank or transporting him
away from the scene.
Motsenbocker was found guilty of one count of bank robbery with a dangerous
weapon in violation of 18 U.S.C. § 2113(a) and (d); one count of using a firearm during a
crime of violence in violation of 18 U.S.C. §§ 2 & 924(c)(1)(A); and one count of being a
felon in possession of a firearm in violation of 18 U.S.C. §§ 2 & 922(g)(1). The district
court sentenced him to 288 months’ imprisonment. Motsenbocker appealed.
II
Prior to trial, Motsenbocker moved for a James hearing to determine whether a
statement Etheridge made to Howard on the day of the robbery, that he was “going to
work with Dwayne,” was admissible non-hearsay under Federal Rule of Evidence
801(d)(2)(E) as a coconspirator statement. United States v. James, 590 F.2d 575 (5th
Cir.), cert. denied 442 U.S. 917 (1979), adopted by United States v. Urena, 27 F.3d 1487,
1491 (10th Cir. 1994). The district court found sufficient evidence of a conspiracy
between Etheridge and Motsenbocker and concluded that the declaration was admissible
as a statement in furtherance of that conspiracy.
Motsenbocker contends that the district court committed reversible error in
admitting this coconspirator statement. “We review the admission of evidence for an
abuse of discretion and we will not disturb an evidentiary ruling absent a distinct showing
that it was based on a clearly erroneous finding of fact or an erroneous conclusion of law
or manifests a clear error in judgment.” United States v. Hall, 473 F.3d 1295, 1303 (10th
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Cir. 2007) (quotation omitted).
“Hearsay means a statement that: (1) the declarant does not make while testifying
at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the
matter asserted in the statement.” Fed. R. Evid. 801(c). Although hearsay statements are
generally not admissible at trial, Fed. R. Evid. 802, a statement made by a coconspirator
is not considered hearsay and may be admissible as substantive evidence “if the court
finds that 1) a conspiracy existed; 2) both the declarant and the defendant against whom
the declaration is offered were members of the conspiracy; and 3) the statement was
made in the course of and in furtherance of the conspiracy.” United States v.
Thornburgh, 645 F.3d 1197, 1210 (10th Cir. 2011) (quotation omitted); see also Fed. R.
Evid. 801(d)(2)(E). The government bears the burden of proving the existence of a
conspiracy by a preponderance of the evidence. Hall, 473 F.3d at 1302-03.
Motsenbocker claims that the district court erred by admitting Etheridge’s
statement to Howard that he was “going to work with Dwayne” the morning of the
robbery. The government responds that this claim is moot because the statement was not
admitted at trial. Although the lead FBI investigator for the case, Casey Cox, used that
exact language in the pre-trial James hearing, Cox never mentioned Etheridge’s statement
to Howard during his trial testimony. Nor did Howard herself use that phrase when she
took the stand. The trial transcript does include the following substantially similar
exchange with Howard, made within the presence of the jury:
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Q: Do you know why . . . Mr. Motsenbocker and Mr. Etheridge were
together that day [of the robbery]?
A: I didn’t at the time, no.
Q: Well . . . at that time, what did they tell you they were going to do?
A: To go work on one of the houses, I believe.
However, when asked to explain how she knew they were going to work on houses,
Howard clarified at two separate points that “[a]ctually, I just assumed it because that’s
what they did for a living” and that “[t]hey didn’t tell me what they were doing during the
day.” Thus, neither Howard nor Cox ever testified at trial about statements made by
Etheridge to Howard on the day of the robbery. A careful review of the record
demonstrates that the jury never considered any coconspirator statement, and defense
counsel has not provided any record citations that indicate otherwise. We therefore
conclude that Motsenbocker’s claim is moot. See United States v. Lopez-Moreno, 420
F.3d 420, 435 (5th Cir. 2005) (determining that a defendant’s claim that certain
documents were inadmissible hearsay was moot because the documents were not
admitted at trial).
III
Motsenbocker also alleges that the evidence submitted at trial was insufficient to
convict him of any of the three charges against him. We review challenges to the
sufficiency of the evidence de novo, “asking whether a reasonable jury could find a
defendant guilty beyond a reasonable doubt, viewing the evidence in the light most
favorable to the government and drawing reasonable inferences therefrom.” United
States v. Irving, 665 F.3d 1184, 1193 (10th Cir. 2011) (quotation and alteration omitted).
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“[W]e will not overturn a jury’s verdict unless no reasonable juror could have concluded,
on the basis of the evidence presented, that the defendant was guilty of the crime
charged.” United States v. Dowlin, 408 F.3d 647, 657 (10th Cir. 2005) (quotation
omitted). While a conviction may be achieved through the use of circumstantial
evidence, it cannot be sustained if obtained by piling inference upon inference. See
United States v. Summers, 414 F.3d 1287, 1294-95 (10th Cir. 2005).
A
Motsenbocker first contests the sufficiency of the evidence supporting his
conviction for aiding and abetting armed bank robbery. To support an aiding and
abetting charge, the government must prove that someone committed the predicate crime
in question. See United States v. Rodgers, 419 F.2d 1315, 1317 (10th Cir. 1969). Thus,
the government must prove beyond a reasonable doubt that:
(1) the [perpetrator] took, or attempted to take, money belonging to a bank,
credit union, or any savings and loan association; (2) by using force and
violence, or intimidation; (3) the deposits of the institution were federally
insured; and (4) in committing or attempting to commit the offense, the
[perpetrator] assaulted any person, or put in jeopardy the life of any person
by the use of a dangerous weapon or device.
United States v. Davis, 437 F.3d 989, 993 (10th Cir. 2006). Motsenbocker claims that
the government failed to meet this burden, but BancFirst employee testimony
demonstrated that an armed bank robbery occurred. A BancFirst teller described that on
November 6, 2010, an individual pulled a gun, pointed it at her, and took money from the
bank. According to the branch manager, $2,320 was stolen. BancFirst’s security officer
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testified that the branch was federally insured.
To support Motsenbocker’s aiding and abetting conviction, the government must
have demonstrated beyond a reasonable doubt that he “(1) willfully associated with the
charged criminal venture and (2) aided the venture through affirmative action.” Id. at 993
(quotation omitted). Motsenbocker argues that the government’s case relies solely on
piling inference upon inference, contravening Summers, 414 F.3d at 1295-96. We
disagree. Motsenbocker confessed to meeting with Etheridge in the days and hours
immediately preceding the robbery. He admitted he knew that Etheridge had a gun, that
Etheridge had stated he wanted to “go rob something” and was in particular going to
“get” the BancFirst branch that was later robbed. Unlike in Summers, the evidence
submitted at trial repeatedly placed Motsenbocker with or near Etheridge before, during,
and after the robbery. Compare id. at 1296, with Davis, 437 F.3d at 994-95. About an
hour before the robbery, Motsenbocker picked up Etheridge. Already aware of
Etheridge’s plans to rob the BancFirst branch, Motsenbocker parked and waited at the
nearby 7-Eleven at the time of the robbery. Motsenbocker’s GPS monitor located him
directly south of the burning red truck immediately after the robbery, when Etheridge
would have needed alternative transportation. The morning after the robbery,
Motsenbocker visited the hotel where Etheridge had arranged to stay with Howard.
Motsenbocker contends that the GPS monitoring was unreliable, noting that at one
point it placed him in the middle of a lake. However, it was not unreasonable for the jury
to agree with its results. On multiple occasions, Motsenbocker’s movements were
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confirmed by other witnesses or Motsenbocker himself. In addition, the government’s
expert witness testified that a momentary error would not undermine the long sequence of
results showing Motsenbocker in the vicinity of Etheridge.
Moreover, after the crime, Motsenbocker cut his GPS monitor and fled when he
learned that police were at his address. In a letter to his wife, he discussed his “bad
choices” and fear of returning to prison. In conversations with federal officials,
Motsenbocker supplied only implausible and shifting justifications for his movements.
Motsenbocker’s behavior after the robbery can be taken into consideration in determining
his guilt or innocence. See United States v. Winder, 557 F.3d 1129, 1138 (10th Cir.
2009) (noting that a defendant’s intentional flight from a police officer may serve as
circumstantial evidence of guilt).
We conclude that the evidence was sufficient for a reasonable juror to have found
that Motsenbocker aided and abetted Etheridge’s robbery.
B
Motsenbocker also disputes his conviction for aiding and abetting the use of a
firearm during a crime of violence. In order to prove the predicate offense, the
government must establish that the perpetrator knowingly used a firearm during and in
relation to a crime of violence. United States v. Bowen, 527 F.3d 1065, 1076-77 (10th
Cir. 2008). To show that Motsenbocker aided and abetted the use of a firearm, the
government must prove beyond a reasonable doubt that he “(1) [knew] his cohort used a
firearm in the underlying crime, and (2) knowingly and actively participate[d] in that
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underlying crime.” Id. at 1078.
As discussed above, the government established that Etheridge knowingly used a
firearm in the course of the BancFirst robbery and that Motsenbocker aided and abetted
that crime. The evidence submitted at trial demonstrated that Motsenbocker knew of
Etheridge’s plans to use a gun in the robbery. Motsenbocker himself confessed that
Etheridge told him he wanted to “get a gun and go rob something,” later showed
Motsenbocker his gun, and finally stated that he intended to “get” the BancFirst branch.
We conclude that a reasonable juror could have determined, on the basis of the evidence
presented, that Motsenbocker was guilty of the crime charged.
C
Finally, Motsenbocker contests his conviction for being a felon in possession of a
firearm. To obtain a conviction, the government was required to prove beyond a
reasonable doubt that “(1) the defendant was previously convicted of a felony; (2) the
defendant thereafter knowingly possessed a firearm; and (3) the possession was in or
affecting interstate commerce.” United States v. Kitchell, 653 F.3d 1206, 1228 (10th Cir.
2011) (quotation omitted). At trial, all parties stipulated to the fact that Motsenbocker
had previously been convicted of a felony. Howard testified that about a week before the
robbery, she saw Motsenbocker holding the gun used in the crime. According to a
federal firearms official, the gun’s serial number indicated that it was manufactured
outside of Oklahoma. A defendant’s knowing, momentary possession of a gun is
sufficient to support a conviction for being a felon in possession of a firearm. See United
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States v. Williams, 403 F.3d 1188, 1194-95 (10th Cir. 2005). The evidence was
sufficient to find Motsenbocker guilty of knowingly possessing a firearm.1
IV
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
1
At one point in his opening brief, Motsenbocker alleges that the district court
erred in allowing the government to call an FBI agent as an expert witness. He thereafter
fails to return to this point. We accordingly deem this claim waived. See Harsco Corp.
v. Renner, 475 F.3d 1179, 1190 (10th Cir. 2007) (“[A] party waives those arguments that
its opening brief inadequately addresses.”).
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