NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0791n.06 No. 12-3982 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. STEVEN MI CHAEL

PERAL ES, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE N ORTHERN DI STRI CT OF OH I O

BEFORE: K

EITH , WHITE , and S TRANCH, Circ uit Jud ges. Helene N. White, Circuit Ju dge. Def endant- Appellant Steven Micha el Pera les (Pera les)

was char g ed with aiding and abetting in two bank robber ies and one at t em p t ed b an k robber y . Following a jury trial, he was co n v i cted on all three counts and sentenc ed to 130 months of imprisonment. On appea l, Perale s argues that: (1) the evidenc e does not support his convictions on two counts and is ag ainst the weig ht of the evidenc e, entitling him to a new trial; (2) the district court

err ed in admitting testimony reg arding an out-of-c ourt identification; and (3) the district court err ed in imposing a sentenc ing enhanc ement based on the principal’s “thre at of death” during one robber y . We AFF I RM. I. This case arises out of Perale s’s role in a series of robber ies committed by his g irlfriend, Heather Be asley (B easle y ). On Oc tober 3, 2011, Be asley enter ed Apple Creek Ba nking Company in Woost er, Ohio and handed the bank teller a note that rea d “5000 in larg e bills, no dy e packs.” The teller g ave B easle y

$2500. Be asley

put the money

in her purse and fle d the sce ne.No. 12-3982

United States v. Pe rales A we ek l at er , at 9:03 a.m. on October 11, 2011, Be asley enter ed the Charter One Ba nk in Toledo, Ohio and passed t h e t el l er a n ote stating, “5,000 larg e bills No Die [si c] Packs!! !!” Howeve r, when th e assistant manag er approa ched, Be asley fled the bank on foot without any money . Thirty -six minutes later, at 9:39 a.m., Beasley enter ed t h e Genoa Ba nk in Millbury , Ohio, located eig ht miles from the Charter One Ba nk. Be asley passed the teller the same hold-up note and told the teller that she had a g un. The teller g ave Be asley $3350; Be asley put it in her purse and fled. On the road outside t h e b an k, a vehicle picked Be asley up and sped awa y . The Genoa Ba

nk tellers who witnessed this testified that the g etawa y vehicle w as a silver

or white c ar. Ba sed on a radio dispatch descr ibing the g etawa y car , police stopped Perale s, who was driving a silver Dodg e Neon, and found Be asley hiding in the back seat. A sear ch of the car y ielded the clothes Be asley had wor n duringthe Charter

One a nd Genoa Ba nk robber ies (as shown on the bank videotapes) , the money stolen from Genoa Ba nk, and the hold-up note. In addition, Perale s was

car rying a key to a motel room at the Crown Inn in Mill bury , Ohio. Be asley pleade d g uilty of two bank robber ies and one attempted bank robber y . See United States v. Beasley , 3:11-cr- 564 (N.D. Ohio, April 5, 2012). Perale s pleade d not g uilty to three counts of aiding and abetting Be asley in the offe nses in violation of 18 U.S.C. §§ 2 & 2113(a)

. Following

a two-day jur y t ri al, Perale s was convicted on all counts and was sentenc ed to 130 months of

concur rent imprisonment on eac h count and three y ear s of supervised rele ase. Perale s filed a timely notice of a

ppeal.

-2-No. 12-3982

United States v. Pe rales II. A. Denial of Relief u nder Rules 29 and 33 Perale s argues that as to count one, the Apple Creek robber y , and count two, the Charter One attempted robber

y , the Gover

nment failed to introduce any evidenc e that he actively participa ted in

or eng ag ed in any aff

irmative act in connec tion with the crimes, and that he is entitled to a new trial. We revie w de novo a district court’s denial of a Rule 29 motion for judgme nt of acquittal based on the insufficienc y o f the evidenc e, United States v. Humphrey , 279 F.3d 372, 378 (6th Cir. 2002), construing the evidenc e in the light most favor able to the Gover nment and then deter

mining whether any rational trier

of fa ct could have found the e ssential elements of the crime be y ond a re asonable doubt. Jack

son v. Virginia , 443 U.S. 307, 319 (1979); United States v. Grubbs , 506 F.3d 434, 438 (6th Cir. 2007). We do not rew eig h the evidenc e, re- evalua te the cre dibilit y of wi t n es s es , or substitut e our judgme nt for that of the jury

. United States v. A ma w i , 6 9 5 F.3d 457, 491 (6th Cir. 2012) (interna l quotation marks omitted). “Eve n circ umstantial evidenc e may sustain a conviction

so long as the totality of the evidenc e” establishes the defe ndant’s g uilt bey ond a rea sonable doubt. United States v. W

alls , 293 F.3d 959, 967 ( 6th Cir. 2002). Rule 33 provides that “[u] pon the defendant’s moti on, the court m ay vacate any judgme nt and gra nt a new tr ial if the intere st of justice so require s.” F ed. R. Crim. P. 33(a). A motion for a

new trial under Rule 33 is premised on the asser tion that the jury ’s verdic t was ag ainst the manifest weig ht of the evidenc e. United States v. Hughes , 505 F.3d 5 7 8 , 5 92 (6th Cir. 2007). When considering the weig ht of the evidenc e for purpose s o f ad j udicating a motion for a new trial, the district judge may act as a “thirteenth j u ro r,” assessing the credibility of wit nesses and the weight

-3-No. 12-3982

United States v. Perales of the evidence. Id. at 593 (citing United States v. Lutz , 154 F.3d 581, 589 (6th Cir. 1998)). We review a district court’s decision to grant or deny a motion for a new trial for abuse of discretion. United States v. Munoz , 605 F.3d 359, 366 (6th Cir. 2010). “Generally, such motions are granted only in the extraordinary circumstance where the evidence preponderates heavily against the verdict.” Hughes , 505 F.3d at 592 93 (citation and internal quotation marks omitted). “Aiding and abetting requires that a defendant in some sort associate himself with the venture, that he participate[] in it as something he wishes to bring about, and that he seek by his action to make it succeed.” United States v. Lowery , 60 F.3d 1199, 1202 (6th Cir. 1995) (citation and internal quotation marks omitted). Perales does not contest that Beasley committed the crimes of bank robbery and attempted bank robbery; he argues only that he was not shown to have aided and abetted her. To prove aiding and abetting, the government had to establish: (1) an act by Perales that contributed to the commission of the crime; and (2) Perales’s intent to aid in the commission of the crime. See United States v. Bronzino , 598 F.3d 276, 279 (6th Cir. 2010); United States v. Vasquez , 560 F.3d 461, 469 (6th Cir. 2009). The district court properly denied relief under Rules 29 and 33 of the Federal Rules of Criminal Procedure. Perales’s conviction for his involvement in the attempted robbery is adequately supported by the evidence. The Charter One attempted robbery and the Genoa Bank robbery occurred within forty minutes of each other at banks located eight miles apart. Thus, it is likely that Beasley traveled between the two sites in a vehicle. It is undisputed that Perales drove the getaway car for the Genoa Bank robbery, transporting Beasley away from the scene of the crime he was stopped ten minutes later with Beasley, the stolen money, and hold-up note in the car. Viewing the

-4-No. 12-3982

United States v. Pe rales evidenc e in the light most favor able to the Gover nment, these fac ts could support the infere nce that Be asley was transporte d by Perale s from the attempted Charter One Ba nk robber y to the Genoa Ba

nk robber y eig ht miles awa

y . Although the evidenc e in the case is circ umstantial and no ey ewitness saw Perales pick Be asley up from Charter One Ba nk, “this [c] ourt has never held that ey ewitness evidenc e is neede d to secur e a conviction.” United States v. Parks , 278 F. App’x 527, 536 (6th Cir 2008); see U

nited States v. Dav is , 306 F.3d 398, 409 ( 6th Cir. 2002). Perale s’s convictio n fo r ai ding and abetting the Apple Creek robber y is a closer question; h o weve r, we find there is sufficie nt evidenc e to uphold Perale s’s conviction. First, the distan ce Be asley trave led afte r the robber y corr oborate s the Gover n ment’s claim that she had a driver assisting he r either

immediately

following the robbery

or shortly

there afte r. Two a

nd a half hours afte r the robber

y , police found the clothes that Be asley wore during the crime on the side of a road approximately six miles from the Apple Creek Ba nk. I n addition, the day afte r the robber y Be asley chec ked into the Crown I nn Motel a hundred miles awa y . More signific ant, there is circ umstantial evidenc e that Perale s was with Be asley befor e and afte r t he robbery

. Be fore the robbery , Be asley

was living with Perale s in his car in the drivewa y of a home share d by Kristi Pey att, Richard Voiles, and Voiles’s family

. The evidenc e indicates that, afte r the robbe ry , Perale s stay ed with B easle y at the Crown I nn Motel: Be asley paid a double-oc cupanc y rate ; the mo t el manag er rec orded a descr iption of Perale s’s car and license plate number on the room reg istration form for the final two nights; and a Crown I nn housekee pi n g and maintenanc e employ ee, Br ian Osbourne, reme mbere d that a male, matching Perale s’s descr iption, and female stay ed at the motel dur ing this per iod.

-5-No. 12-3982

United States v. Perales The fact that Perales served as Beasley’s getaway driver in two nearly-identical incidents further supports the conclusion that Perales served the same role during the Apple Creek robbery. The evidence indicates that Perales and Beasley had a pattern whereby Beasley robbed the banks using a note, Perales drove the getaway car, and Beasley changed and discarded her clothes after the crime. A rational trier of fact could logically conclude that this pattern was likewise followed during the Apple Creek robbery and thus that Perales aided and abetted Beasley by driving her either to or from the robbery. See United States v. Cobb , 397 F. App’x 128, 135 36 (6th Cir. 2010) (upholding bank robbery conviction where there was strong evidence that defendant had committed another robbery with a similar modus operandi ). Finally, there is evidence that Perales not only assisted in the robbery, but also advised Beasley on how to commit the robberies. According to Voiles, the week before the Apple Creek robbery, Perales told a group of persons, including Beasley, that when robbing a bank, “just to pass a note on to the cashier and then he said take to get the money and put in the bag and stuff. And you won’t get much time as long as you don’t show no weapons.” (R. 65: Transcript, PageID 480.) Perales argues that he was not “scheming or planning,” but rather “bragging or boasting” and that this discussion was “general” and “hypothetical.” Appellant’s Br. at 22 23. However, where Beasley followed Perales’s “hypothetical” advice in committing her crimes and Perales was in her company, a reasonable trier of fact could find beyond a reasonable doubt that Perales’s comment constituted something more than a generalized discussion. Viewing the evidence in the light most favorable to the Government, it was not unreasonable for the jury to conclude that this statement encouraged Beasley to commit the robbery, and could thus serve as further proof that Perales had

-6-No. 12-3982

United States v. Pe rales the requisite intent to aid in t he commission of the robberies, including t he Apple Creek robbery

. See Six th Circuit Crimi nal Pattern Jury I nstructions, § 4.01. Acc ording ly , Perale s has not shown that there was insufficient ev i d ence to support his convic t i o n s o n counts one and two. Simi larly , the direc t and circ umstantial evidenc e supported Perale s’s convictions; conseque ntly , the district court did not abuse its discretion by denying Perale s

a new trial. B. Ou t-of-Court Identification Perale s next challeng es the district court’s decision to admit FB I Ag ent Koche r’s testimony reg arding Crown I nn Motel employ ee Br ian Osbourne’ s out-of-c ourt identification of Perale s as the person stay ing at the motel with Be asley betwee n robber ies. When shown a photogr aph of Perale s the wee k befor e trial, Osbourne identified him as the man stay ing at the Crown I nn . At trial, Osbourne testified that he saw a male at the Crow n I nn matchingPerale s’s descr iption. Howeve r, Osbourne also testified that the man he saw at the motel was not in the courtroom. Os b o urne confirme d, howeve r, that when he previously was shown a photogr aph, he had identified that person

as the man who had been stay ing at the motel. L ater in the trial, the court permitted Ag ent Koche r to testify that he had shown Os b o u rn e a p h o t o g raph of Perale s a wee k prior to trial. This court revie ws a trial court’s evidentiar y ruling s for an abuse of discretion. United States v. W hite , 492 F.3d 380, 398 (6th Cir. 2007). Perale s argues that “Ag ent Koche r provided testimony that Mr. Osbourne previously identified Mr. Perale s in a photo arr ay . This is classic hear say as the g overnme nt offe red the out-ofcourt statement of Mr. Osbourne for the truth of the matter asser ted.” Appellant’s Br

. at 38 (citing

-7-No. 12-3982

United States v. Perales Fed. R. Evid. 801(c)). A statement is not hearsay under Rule 801(d)(1)(C), however, if the declarant “testifies and is subject to cross-examination about a prior statement, and the statement . . . identifies a person as someone the declarant perceived earlier.” These statements of prior identifications are permitted as substantive evidence because of “the generally unsatisfactory and inconclusive nature of courtroom identifications as compared with those made at an earlier time under less suggestive conditions.” Fed. R. Evid. 801(d)(1)(C), advisory committee’s note (1972). Under Rule 801(d)(1)(C), Agent Kocher’s testimony regarding Osbourne’s out-of-court identification of Perales was admissible non-hearsay because Osbourne testified at trial and was subject to cross-examination concerning his prior identification. The Seventh Circuit has explained: So long as the requirements of Rule 801(d)(1)(C) are met, government agents may testify about a prior statement of identification made by a witness who identified the defendant in a lineup or photospread, but forgets, or changes, his testimony at trial. The better course, obviously, is to provide the photo array or other evidence of the prior identification immediately, while the declarant is still on the witness stand. But events at trial sometimes make the better course impractical. In such circumstances, a meaningful opportunity to cross-examine a declarant regarding his prior identification is enough to satisfy the requirements of Rule 801, even if the defendant chooses not to use the opportunity. United States v. Foster , 652 F.3d 776, 788 89 (7th Cir. 2011) (internal citations and quotation marks omitted); see United States v. Brink , 39 F.3d 419, 426 (3d Cir. 1994) (finding congressional debate over Rule 801 suggests that “Congress was aware that third parties would testify to the witness’s prior statements”). Osbourne testified at Perales’s trial and defense counsel had the opportunity to cross-examine him. There is no indication in the record that he was unavailable for reexamination after Agent Kocher testified. See United States v. Elemy , 656 F.2d 507, 508 (9th Cir. 1981) (holding that FBI agent’s testimony regarding witness’s prior identification was admissible where nothing in

-8-No. 12-3982

United States v. Pe rales the rec ord sug g ested that the decla rant was unavailable for ree x amination afte r the ag ent’s testimony ); Foster , 652 F.3d at 789. Acc ording ly , Ag ent Koche r’s testimony reg arding Osbourne’ s identification was not hear say , and the court did not abuse its discretion in admitting the testimony

. C. Sentencing Enh ancem ent for Th reat of Death Finally , Perale s argues that the district court err ed in imposing a two-leve l sentenc ing enhanc ement under U.S.S.G. § 2B3.1( b )( 2 )( F)

. This court “re views de novo the district court’s application of the Sentencing Guidelines to a particula r set of fa cts, including whether the fa cts as found war rant the sentenc ing enhanc ement under [] § 2B3.1( b)(2) (F ).” United States v. W ooten , 689 F.3d 570, 574 (6th Cir. 2012) (citing United States v. W inbush , 296 F.3d 442, 443 (6th Cir. 2002)). Section 2B3.1( b)(2) (F ) i nstructs that if a threat of death was made during the course of the crime, the sentenc ing court must incre ase the defe ndant’s offe nse level by two levels. Pursuant to U.S.S.G. § 1B1.3( a)( 1), Perale s is responsible for all acts that he aided and abetted, as well as all rea sonably fore seea ble acts taken in further ance of jointly undertaken criminal activity

. Perale s does not dispute that Be asley made a threa t of death when she told the Genoa Ba nk teller, “I have a g un,” howeve r, he asser ts tha t this statement should not be imputed to him be cause her threa t w as not “ rea sonably fore seea ble.” To support this contention, P era les points out that Be asley d i d n o t m ake a threat of death during the two prior robber ies and that his statements reg arding how to rob a bank specific ally discourag ed B easle y

from using a gun. As the g uideli n es notes explain, if two defe ndants jointly ag ree d to rob a bank, and one defe ndant assaults a victim during the robber y , the co-de fenda

nt is acc ountable for the assault “eve n i f the second defe ndant had not ag ree d to the assault and had cautioned the first defe ndant to b e

-9-No. 12-3982

United States v. Pe rales

car eful not to hurt any one [] beca use the assaultive conduct was in furth er an ce of the jointly undertaken cr iminal activity (the robbery ) and was reasona

bly fore seea

ble in connec tion with that criminal activi t y (g iven the nature of the offe nse).” U.S.S.G. § 1B1.3, comment, n.2; see United States v. Dal e , 187 F.3d 638, 1999 WL 618069, at *3 (6th Cir. Aug

. 2, 1999) (table) (use of threa tening lang uag e in a demand note during a bank robber y fore seea

ble even wher e the note was written and prese nted to the bank teller by the defe ndant’s acc omplices while the defe ndant waited outside the bank in the getaw ay car ); United St ates v. Parks , 149 F.3d 1185, 1998 WL 384562, at *1 (6th Cir. J une 18, 1998) (table) ( “[Defe ndant] is responsible for his co-de fenda nt’s threa tening statement beca

use it wa s made in f

urthera nce of the jointly undertaken criminal activity and it was

rea sonably

fore seea ble.”)

. Acc ording ly , the district court did not abuse its discretio n b y imposing the two-leve l sentenc ing e nhance ment under § 2B 3.1(b)( 2)(F ). III. Ba sed on the for eg oing r easoning , we AF FI RM Perales’s c onvictions and sentenc e.

-10-