United States v. Reynolds

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 14, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk

No. 03-10331
_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus

GREGORY MARCUS REYNOLDS,

Defendant - Appellant.
_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM:

Gregory Marcus Reynolds was convicted on four counts of bank

robbery, in violation of 18 U.S.C. § 2113(a), and four

corresponding counts of carrying and possessing a firearm during

and in relation to a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i). The principal issue before us pertains to

Reynolds’s appeal of his conviction on the four counts under

section 924(c)(1).1

1
Reynolds raises two additional issues on appeal, including:
(1) whether there was sufficient evidence to establish venue for
each conviction count; and (2) whether the district court erred
when it denied Reynolds’s motion to suppress his statement to
arresting officers.
 I

From May 10 to May 16, 2002, Reynolds robbed three Texas

banks. On September 9, 2002, Reynolds returned to the first bank

that he had robbed and robbed it a second time. Each of the bank

tellers who were robbed testified that Reynolds would enter the

bank, hand the teller a white bag that had brief instructions

written on it to fill the bag, and then escape with the money.

None of the tellers or the other witnesses present indicated that

Reynolds used or carried a firearm during any of the robberies.

On September 16, 2002, Reynolds was arrested in a game room,

whereupon officers found a fully loaded semi-automatic pistol in

his left front pants pocket. A plain white bag was found in

Reynolds’s right front pants pocket and additional white bags were

recovered from his car. After Reynolds was taken into custody, he

was advised of his rights on two separate occasions. Reynolds

thereafter indicated a willingness to talk with the officers and

proceeded to provide details of each robbery. Reynolds stated to

the officers that he “always” carried the seized pistol with him,

but that he never intended to use the gun on his victims or the

police, but instead on himself in the event he was caught.

Reynolds, however, was never directly asked, nor did he

specifically admit to, carrying the gun during any of the bank

robberies. During the interview, Reynolds also indicated that he

used methamphetamine. However, the FBI agent and the Arlington

Police Department officer who interviewed Reynolds both testified

2
that Reynolds did not appear to be under the influence of drugs or

alcohol during the interview.

A superseding indictment charged Reynolds with four counts of

bank robbery, in violation of 18 U.S.C. § 2113(a), and four counts

of carrying a firearm during and in relation to the commission of

a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i).2

Reynolds filed a motion to suppress his post-arrest statement,

arguing that his drug use rendered his statement involuntary.

After an evidentiary hearing, the district court denied Reynolds’s

suppression motion. The case was heard before a jury for two days.

Reynolds filed a motion for a judgment of acquittal at the close of

the government’s case and reurged the motion after the close of all

the evidence. The district court denied both motions. The case

was eventually submitted to the jury, which found Reynolds guilty

on all counts.

The district court sentenced Reynolds to a total aggregate

term of 1033 months’ imprisonment, five years’ supervised release,

and other terms and conditions. With regard to the robbery counts,

Reynolds was sentenced to concurrent terms of 73 months’

imprisonment on counts one, three, five, and seven. On count two,

the first weapons count, Reynolds was sentenced to a mandatory

60 months’ imprisonment, which was to run consecutively to the

2
A superseding indictment was filed to correct an error in
the original indictment that contained an erroneous address for one
of the banks Reynolds was charged with robbing.

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other prison terms. On each of counts four, six, and eight, the

remaining weapons counts, Reynolds was sentenced to serve 300

months’ imprisonment for each count, to run consecutively to each

other and to all other prison terms imposed. In other words,

Reynolds was sentenced to a combined total of approximately six

years for the four robbery counts and a combined total of eighty

years for the four firearm counts. After sentencing, Reynolds

filed a timely notice of appeal. In this appeal, he principally

argues that there was insufficient evidence to support his

conviction on the four counts of carrying a firearm during and in

relation to the commission of a crime of violence. He also

contends that the district court should have suppressed his

confession because it was made involuntarily.3

II

Reynolds argues that the evidence is insufficient to sustain

his conviction on the four counts of carrying a firearm during and

in relation to a crime of violence. Specifically, he asserts that

the evidence submitted at trial was insufficient to establish that

3
In this appeal, Reynolds also asserts that there is
insufficient evidence supporting his conviction on all eight counts
because none of the witnesses testified at trial that any of the
crimes occurred in the Fort Worth Division of the Northern District
of Texas. This assertion, however, is plainly incorrect and
deserves no serious consideration. At trial, there was direct
testimony, elicited from FBI Special Agent Farrell, who arrested
and questioned Reynolds, establishing that each of the four banks
that were robbed are located in the Northern District.
Consequently, Reynolds’s argument that there was insufficient
evidence establishing venue fails.

4
he carried a firearm during his commission of the bank robberies in

question.

When reviewing the sufficiency of the evidence, this court

views all evidence, whether circumstantial or direct, in the light

most favorable to the government with all reasonable inferences to

be made in support of the jury’s verdict. United States v. Moser,

123 F.3d 813, 819 (5th Cir. 1997) (quotations omitted). The

evidence is sufficient if, when “viewed in the light most favorable

to the verdict [it] would permit a rational trier of fact to find

[the defendant] guilty beyond a reasonable doubt.” United States

v. Pankhurst, 118 F.3d 345, 352 (5th Cir. 1997).

The government acknowledges that it lacks any direct evidence,

testimonial or otherwise, that Reynolds actually carried a gun

during the commission of these crimes. However, it argues that

this fact can be inferred from the statements he made during

questioning when he was arrested. Specifically, Reynolds said that

he “always had that gun with him,” that “he never intended to use

the gun either on a victim teller or on the police, but on himself

in the event that he got caught,” and that “he always carried the

gun with him because he knew that the police officers always had

their guns with them.”

There is a problem with relying on these statements, however.

In Smith v. United States, 348 U.S. 147, 152 (1954), the Supreme

Court announced that a defendant generally cannot be convicted

solely on his uncorroborated confession. While acknowledging that

5
the corroboration rule may not apply to every admission by a

defendant, the Court indicated it at least applied where “the

admission is made after the fact to an official charged with

investigating the possibility of wrongdoing, and the statement

embraces an element vital to the Government’s case.” Id. at 155;

see also United States v. Ybarra, 70 F.3d 362, 365 (5th Cir. 1995).

Reynolds’s admissions here not only meet these conditions, they

present an even more compelling case for applying the Smith rule,

given the fact that he never directly confessed specifically to the

crime for which he was convicted. As such, we find it necessary to

apply Smith’s rule here and hold that Reynolds cannot be convicted

on the basis of his confession alone unless it is corroborated.4

The government contends that Reynolds’s confession was

corroborated by the trial testimony of his girlfriend, Cindy

Childress, who testified that Reynolds told her “the gun was close

by, always” during the robberies. However, we note that Childress

4
In arguing that Smith’s rule should not apply to this case,
the government cites this court’s decision in United States v.
Deville, 278 F.3d 500 (5th Cir. 2002). There we upheld a
conviction for carrying a firearm during and in relation to a drug
trafficking offense that was primarily based on the defendant’s
confession that he had carried a firearm while committing the
crime. Id at 507. Deville can be distinguished, however. First,
the defendant in Deville unambiguously and directly confessed to
carrying the gun during the crimes at issue there. Id. Here,
Reynolds’s confession must be circumstantially inferred from
indirect statements he made about his carrying of the gun. Second,
this court found that the Deville defendant’s clear confession was
adequately corroborated by extensive extrinsic evidence related to
the “intertwined” underlying drug trafficking offense. Id. at 506-
07. In contrast, as noted above, we find no such corroborating
evidence here.

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also testified that Reynolds told her he did not use the gun in any

of the bank robberies. We do not believe such ambivalent testimony

serves as corroboration for the unspecific confession made by

Reynolds. There being no other evidence that would corroborate

Reynolds’s admissions, we hold that the evidence is insufficient to

support his convictions for carrying a firearm during the

commission of a crime of violence. Accordingly, we REVERSE and

VACATE his convictions and sentences on these counts.

III

Reynolds next contends that his having taken methamphetamine

an hour before he was arrested and not having slept for three days

at the time of his arrest made his confession to the arresting

officers involuntary. “When a defendant challenges the

voluntariness of a confession, the government must prove its

voluntariness by a preponderance of the evidence in order for the

confession to be admissible as substantive evidence at the

defendant's criminal trial.” United States v. Garcia Abrego,

141 F.3d 142, 170 (5th Cir. 1998).

In reviewing a ruling on a motion to suppress a confession, we

give credence to the credibility choices and fact finding by the

district court unless they are clearly erroneous; the ultimate

issue of voluntariness, however, is a legal question reviewed de

novo. United States v. Solis, 299 F.3d 420, 439 (5th Cir. 2002)

(citation and quotation omitted). The voluntariness of a

confession depends on whether, under the totality of the

7
circumstances, the statement is “the product of the accused’s free

and rational choice.” Garcia Abrego, 141 F.3d at 170 (citation and

quotation omitted). We have also said that “coercive police

activity is a necessary predicate to the finding that a confession

is not ‘voluntary’ within the meaning of the Due Process Clause of

the Fourteenth Amendment.” Id. (quoting Colorado v. Connelly, 479

U.S. 157, 167 (1986)).

In Muniz v. Johnson, 132 F.3d 214, 220 (5th Cir. 1998), the

defendant argued that his fatigued physical and emotional condition

at the time of his confession made him more susceptible to

coercion, thus making his confession involuntary. The court

determined that there was “nothing in the record to suggest that he

complained to the officers about his fatigue; that he requested

additional time to rest; or that the officers conditioned

additional rest time on receiving his confession.” Id. The court

concluded that the confession was not coerced and therefore was

voluntary. Id.

In Solis, the defendant maintained that because he took speed

about an hour before he was taken into custody, his confession

should have been suppressed. 299 F.3d at 438-39. The

investigating officer testified that the defendant, after being

given his Miranda warnings, responded that he understood the nature

of the warnings and indicated a willingness to talk with the

officers. Id. at 340. Moreover, the same officer testified that

there was no indication that the defendant was under the influence

8
of any controlled substances and that the defendant demonstrated an

awareness of the questions being asked and was responsive. Id.

Based on this information, the court affirmed the district court’s

finding that the defendant’s confession was voluntary. Id.

In Garcia Abrego, the defendant argued that because he was

given tequila, blood pressure medicine, and Valium by Mexican

authorities before he was handed over to U.S. authorities for

questioning, his subsequent confession was rendered involuntary.

141 F.3d at 170. The court found that:

The record contains ample evidence from which
the district court could conclude that the
drugs that Mexican authorities administered to
Garcia Abrego did not impair his mental
capacity. Dr. Coleman's testimony that Garcia
Abrego did not appear impaired and evinced
none of the symptoms of a Valium overdose,
together with the testimony of the officers
who interviewed Garcia Abrego that he appeared
in no way impaired, provided an adequate basis
for the district court's conclusion that
Garcia Abrego's mental capacity was not
impaired as a result of the drugs that he had
been administered earlier in the day.

Id. Finding the defendant’s confession was voluntary, the court

concluded that the district court did not err in denying the

defendant’s motion to suppress. Id. at 170-71.

In the instant case, the FBI special agent investigating the

case testified that after Reynolds was advised of his rights and

acknowledged that he understood those rights, he further indicated

a willingness to talk with the authorities. Trial testimony

reveals that throughout the interview, Reynolds was cooperative,

9
listened to questions, and responded appropriately. Reynolds

provided the special agent and the detective with a detailed

account of each of the robberies, even going as far as giving a

description of each of the tellers who was robbed and the amounts

taken. There was also testimony that Reynolds sat erect in his

chair, looked at the questioning officer as each question was

posed, responded directly to those questions, and provided

information in a logical manner. Both law enforcement officials

who interrogated Reynolds testified that in their experience,

neither believed that Reynolds was under the influence of any drug

or alcohol.5 Based on these facts, it is clear that the government

has established by a preponderance of the evidence that Reynolds’s

confession was made knowingly and voluntarily. Accordingly, the

district court did not err in denying Reynolds’s motion to suppress

the statements he made to the arresting officers. We therefore

AFFIRM his convictions on each of the bank robbery counts.

CONCLUSION

Having carefully considered the record of this case, the

parties' respective briefing and arguments, and for the reasons set

forth above, we hold that the record does not provide a sufficient

basis upon which a rational juror could conclude beyond a

reasonable doubt that Reynolds carried a firearm during and in

5
Moreover, Reynolds admitted at the suppression hearing that
he never told the officers that he was too tired to talk or that
any of the questioning was abusive.

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relation to a crime of violence pursuant to section 924(c)(1). We

therefore REVERSE and VACATE Reynolds’s convictions and sentences

on the four counts under section 924(c)(1). However, because we

hold that Reynolds’s post-arrest statements were voluntary, we

AFFIRM his convictions on each of the bank robbery counts under

section 2113(a). Finally, because of our reversal of the

convictions on the firearms counts, and the consequent vacatur of

the sentences therein, we VACATE the entire sentence and REMAND for

resentencing.

AFFIRMED in part, REVERSED and VACATED in part, and REMANDED.

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