16 United States v.

Marks, et al.

Nos. 98-6044/6048/6216

III. CONCLUSION

The judgment of the district court is AFFIRMED.

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES D. MARKS (98-6044),

MAURICE NAVARRO BROOKS

(98-6048), ROBERT LEEAGUON (98-6216),

Defendants-Appellants.

Appeal from the United St

for the Western District of Ke

No. 97-00024—Thomas B. R

Argued: January 

Decided and Filed: A

Before: NELSON, SUHRHEIN

Circuit Judg

____________

COUNSE

ARGUED: Armand I. Judah, LouL. Boylan, Louisville, KentuckyLouisville, Kentucky, for Appell
2 United States v.

Marks, et al.

Nos. 98-6044/6048/6216

ASSISTANT UNITED STATES ATTORNEY, Louisville,Kentucky, for Appellee. ON BRIEF: Armand I. Judah,Louisville, Kentucky, Michael L. Boylan, Louisville,Kentucky, Vincent F. Heuser, Jr., Louisville, Kentucky, forAppellants. Terry M. Cushing, David J. Hale, ASSISTANTUNITED STATES ATTORNEYS, Louisville, Kentucky, forAppellee.

_________________

OPINION

_________________

SUHRHEINRICH, Circuit Judge. Defendants Maurice

Navarro Brooks, James Marks, and Robert L. Aguon appealtheir jury convictions and sentences on multiple counts ofbank robbery, armed bank robbery, and carrying a firearmduring a crime of violence. Defendants raise seven issues. 

I. BACKGROUND

Brooks committed nine armed bank robberies in and around

Louisville, Kentucky, from July through December 1996.Nine people were charged with either participating directly inthe robberies or with assisting the principals at differenttimes. Marks allegedly participated in seven of the robberiesbut was convicted of only six. Aguon participated in the lasttwo robberies. 

Brooks, Marks, Aguon, and Bernard Williams committed

the ninth robbery on December 20, 1996. As they wereleaving the bank, a Louisville police officer drove into the

bank parking lot. The four robbers split into pairs. Brooksand Williams fled in Williams’ car but were arrested after ahigh speed chase. Immediately after Brooks’ arrest, he askeda police officer how much time he would get and commentedthat the officer did a “good job.” 

Meanwhile, Marks and Aguon entered a nearby flower shop

where Marks called his stepmother for a ride and bought her

Nos. 98-6044/6048/6216 proceedings, competency examinamatters. See 18 U.S.C. § 3161(h)

Aguon raised the Speedy Trial A

trial and asked the court to dismwhich the court denied. After admand requests for his own benefit tSpeedy Trial Act, Aguon simply bringing him to trial was a vio(Aguon’s Brief at 18). Aguon doethe delay violated the Speedy Tria

In this case, the district court m

findings: (1) after Brooks moved sentencing date, (2) after change in (3) after the district court granted withdraw their pleas, and (4) after Aguon and Myles’ trial from Broodistrict court found that the case acomplex because of the withdrawaorder, and the Government’s diftestimony of Defendants who wer

Defendants withdrew their guilty 

which became the day of their indAct purposes. See 18 U.S.C. § Bond, 956 F.2d 628, 630 (6th Cir. were tried on May 19, 1998, and Agthe same day. Aguon’s trial startethe district court first decided Aguotestimony of witnesses with plea a

Most of the delay was caused by 

pleas and filing pretrial motions, ato admit. As to the other delayappropriate findings to exclude the district court did not err in dendismiss under the Speedy Trial Ac
14 United States v.

Marks, et al.

Nos. 98-6044/6048/6216

To suppress evidence of a pretrial identification, a

defendant must first show that the procedure wasimpermissibly suggestive. If a defendant shows this, then thedistrict court must evaluate the totality of the circumstancesto determine whether the identification was reliable. See

Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994); see

also United States v. Causey, 834 F.2d 1277, 1286 (6th Cir.1987). 

The district court reviewed the photographic array before

the trial and concluded that the photographic lineup was notimpermissibly suggestive. During the trial, the court requiredthe Government to voir dire the witness from the flower shopoutside the presence of the jury to establish a foundation forher testimony about her pretrial identification of Aguon.During the voir dire, the witness testified that she was shownthe photographic lineup, filled out an identification sheet, andsigned it, indicating her identification of Aguon. The witnessessentially repeated this testimony for the jury. Theinvestigating police officer testified that he used standardprocedures. 

Because Aguon failed to demonstrate that the procedure

utilized by the Louisville Police Department was undulysuggestive, the testimony and evidence of the pretrialidentification of Aguon was properly admitted. 

G. Speedy Trial Act. Aguon claims that the delay of over

two years in trying him violates the Speedy Trial Act. TheCourt reviews the district court’s interpretation of the SpeedyTrial Act de novo and its factual findings for clear error. SeeUnited States v. Carroll, 26 F.3d 1380, 1390 (6th Cir. 1994).

The Speedy Trial Act requires that a defendant’s trial begin

within seventy days of the filing date of the indictment orarraignment, whichever is later. See 18 U.S.C. § 3161(c)(1).

However, the seventy-day rule is subject to excludableperiods of delay for consideration of motions, pretrial

Nos. 98-6044/6048/6216 a stuffed animal. She picked them them to her home. Later, an emfound a bag of money on the premrobbery, the flower shop employAguon from standard photographemployee could not identify Aguo

After leaving the Marks’ home, 

to Oklahoma where they stayed wlater testified that Marks and Agubank. 

Marks and Aguon were appre

March 19, 1997. Brooks was arraThe court scheduled trial for all thr1997. Before trial, Defendants filemoved for discovery, to suppress pto sever, and to enlarge time to Marks also moved for discovery anand offenses. The district court jusuppress, sever, and for discovery

After Brooks’ original counsel w

Brooks' new attorney moved to codistrict court rescheduled to Augucourt also made Speedy Trial Act fthe case was reassigned to another moved to sever, to suppress evidenhis prior statements. Aguon alsstatements when he was arrestphotographic lineup identificationall these motions.

On August 18, 1997, the mornin

and Aguon agreed to plead guicooperate completely and fully in ththe nine bank robberies. The pspecific sentences under Federal R11(e)(1)(C). If Defendants failed 
4 United States v.

Marks, et al.

Nos. 98-6044/6048/6216

Government could move for relief from the agreement. Thedistrict court accepted the pleas and set sentencing for eachDefendant for November 7, 1997. 

On October 22, 1997, the Government moved to continue

the sentencing because Defendants had not completed theircooperation under the plea agreements. Marks objected to thecontinuance. Defendants Brooks and Marks responded thatthey were dissatisfied with their plea agreements and movedto withdraw their guilty pleas. After the district court advisedBrooks and Marks of their possible sentences, theyreconsidered and maintained their guilty pleas. The districtcourt reset Defendants’ sentencing to February 2, 1998. 

In early December, 1997, Codefendant James Myles,

previously a fugitive, was arrested. His trial was set forMarch 26, 1998. The Government again moved to continueDefendants' sentencing because Marks and Brooks wouldboth testify against Myles. The district court reset thesentencing of Brooks, Marks, and Aguon to April 3, 1998. 

On February 27, 1998, Brooks, Marks, and Aguon jointly

moved pro se to set aside their plea agreements. Theyclaimed that the Government threatened their family andfriends with prosecution if Defendants did not accept the pleabargains and that their defense counsel constantly pressuredthem to accept the plea agreements. On March 17, 1998, thecourt heard Defendants’ motion and received testimony. Thecourt rejected their claims of coercion, finding their profferedtestimony not credible. The court also denied Defendants’motions for new counsel. At the hearing, the Governmentalso stated that it would offer Defendants’ incriminating postplea statements made while they were cooperating with theGovernment. The district court allowed Defendants towithdraw their pleas, made Speedy Trial Act findings, and settrial for May 18, 1998.

Before trial, Brooks, Marks, and Aguon renewed several

motions and also moved to suppress their incriminating postNos. 98-6044/6048/6216 

exchange for truthful testimony gratuity. This court’s opinion forecloses defendants’ argument. Ware was decided on Decembsubmitted their proof briefs in lattwo months later. They do not me

excoriate the government for its uthat was “illegally obtained”—as decided. During all of the time betheir proof briefs in January of 1January of 2000, counsel never acby Rule 28(j) of the Federal Rulethat Ware had been decided and 

foreclosed as a result. At oral argument, counsel admiWare, but did not cite it in their brisure where it would go in the appelthis meant that they hoped (unrealeither this court en banc or the SupStates would overturn Ware. Becdecision of this court directly position, it should have been disclo

PROFESSIONAL 

CONDUCT Rule 3.3

knowingly fail to disclose to the tricontrolling jurisdiction known to adverse to the position of the cliopposing counsel”); Rule 3.3(b) continues “to the conclusion of the 

F. Photographic Identificatio

district court improperly admitted identified him in a photographic ardistrict court's factual findings evidence for clear error and its coSee United States v. Williams, 962 1992).
12 United States v.

Marks, et al.

Nos. 98-6044/6048/6216

Allen, 160 F.3d 1096, 1106 (6th Cir. 1998); United States v.Hudson, 53 F.3d 744, 747 (6th Cir.1995). 

Brooks and Marks did not renew their motions to sever at

the conclusion of the trial and, thereby, waived the issue forappeal. However, even if the issue were preserved, thedistrict court did not abuse its discretion because Brooks andMarks failed to show “compelling, specific, and actualprejudice.” See Sherlin, 67 F.3d at 1215. Defendants’

defenses were not mutually exclusive. Further, Brooks andMarks did not show that the jury was unable to “separate andtreat distinctively evidence relevant to each particulardefendant.” Medina, 992 F.2d at 587. In fact, the juryacquitted Marks of his alleged role in the seventh robbery, ascharged in Counts 20, 21, and 22 of the indictment, whileconvicting Brooks of his role in the same robbery. Clearly,the jury did separate and distinguish the evidence betweenBrooks and Marks. Accordingly, we affirm the districtcourt’s denial of Brooks’ and Marks’ motions to sever.

E. Purchased Testimony. Defendants claim that the

testimony of cooperating witnesses who received favorableplea bargains in exchange for their promises of truthfultestimony should have been excluded because theGovernment’s inducement of this testimony violated thefederal witness anti-gratuity statute, 18 U.S.C. § 201(c)(2).They rely on the Tenth Circuit’s decision in Singleton v.United States, 144 F.3d 1343 (10th Cir. 1998) (holding thatprosecutors’ offers of favorable plea agreements in exchangefor truthful testimony against accomplices or coconspiratorsviolate the statute and must be excluded), which was vacatedby the en banc Tenth Circuit within two weeks of the date itwas filed and ultimately repudiated. See Singleton v. UnitedStates, 165 F.3d 1297 (10th Cir.) (en banc), cert. denied, 119

S. Ct. 2371 (1999). In United States v. Ware, 161 F.3d 414(6th Cir. 1998), cert. denied, 119 S. Ct. 1348 (1999), thiscourt, like every other circuit to have considered the issue,rejected the Tenth Circuit panel’s analysis and concluded,among other things, that a prosecutor’s offer of leniency in

Nos. 98-6044/6048/6216 plea statements. The Governmstatements, which the district cconcluded that the exclusionary made during plea discussions distatements and that Defendants’ potherwise voluntary and, therefore

The court also found joinder of B

Myles proper under Federal Rule The district court denied Brooks’ marrest statement, “How much time because Brooks did not show involuntary. The district court dsuppress a photographic identificatof the flower shop. Finally, the disBrooks’s, and Aguon’s objectiointention to introduce evidence of 

On May 19, 1998, the mor

reconsidered severance and severMyles from the trial of Brooks anSpeedy Trial Act findings. Broobeginning May 19, 1998, and conMarks was sentenced to 1875 msentenced to 2722 months. The sentences under United States v. Cir. 1992), and reduced them by 4and 2242 months respectively.

On July 6, 1998, the morning 

suppress the testimony of witnesseplea agreements, which the court dto suppress his post-plea statementhey were not voluntary. After tadenied the motion. The jury convThe district court sentenced Aguo
6 United States v.

Marks, et al.

Nos. 98-6044/6048/6216

II. DISCUSSION

A. Suppression of Post-plea Incriminating Statements.

Defendants contend that their post-plea statements shouldhave been excluded. This Court reviews factual findingsabout a confession for clear error, but reviews the ultimatequestion of voluntariness de novo. See United States v.

Wrice, 954 F.2d 406, 410-11 (6th Cir. 1992).

Federal Rule of Criminal Procedure 11(e)(6) treats the

inadmissibility of pleas, plea discussions, and relatedstatements:

Except as otherwise provided in this paragraph, evidenceof the following is not, in any civil or criminalproceeding, admissible against the defendant who madethe plea or was a participant in the plea discussions:(A) a plea of guilty which was later withdrawn;(B) a plea of nolo contendere;(C) any statement made in the course of any proceedingsunder this rule regarding either of the foregoing pleas; or(D) any statement made in the course of plea discussionswith an attorney for the government which do not resultin a plea of guilty or which result in a plea of guilty laterwithdrawn.

Fed. R. Crim. P. 11(e)(6).

After Defendants entered their plea agreements, FBI

Special Agent Wight spoke to the Defendants with theirdefense counsel either present or informed of the interview.The court cautioned Defendants about the possible admissionof their post-plea statements when they moved to withdrawtheir pleas. 

Nos. 98-6044/6048/6216 and that the district court erred by nthey were permitted—but not reqlocated in Louisville are also locatof Kentucky, it is difficult to imagimore clearly harmless beyond a re

The Government also establishe

bank employees in both trials that insured. In Aguon’s trial, the Gocertificates of insurance for the Deposit Insurance Corporation (“FDefendants challenged the federbanks.

This Court has held similar evid

a bank being federally insured. S780 F.2d 555, 556-57 (6th Cir. unrebutted testimony of a bansufficient). See also United States 1066 (6th Cir. 1999); United State692-93 (6th Cir. 1975). Considerinmost favorable to the Governmensufficient evidence for the jury to doubt that the robbed banks Accordingly, we reject this claim 

D. Severance. Defendants Bro

their joinder was prejudicial to thea claim of misjoinder, a defendanspecific, and actual prejudice defendants or offenses. See United 1208, 1215 (6th Cir. 1995); Unite571, 578 (6th Cir. 1995); United S573, 587 (6th Cir. 1993). This severance motions for abuse of United States, 506 U.S. 534, 541 (1215. A motion to sever must bevidence to be preserved for app
10 United States v.

Marks, et al.

Nos. 98-6044/6048/6216

508 U.S. at 137. The Sixth Circuit has upheld similarmandatory minimum sentences involving firearms. See, e.g.,United States v. Duerson, 25 F.3d 376 (6th Cir. 1994) (157months for robbery with short barrel shotgun). Accordingly,we find that Brooks’ and Marks’ sentences did not violate theEighth Amendment.

C. Proof of Venue and Federal Insurance. Defendants

claim that the Government did not prove the elements ofvenue and the federally insured status of the robbed banks.Brooks and Marks moved for acquittal at the close of proofsarguing that the Government failed to prove the venueelement. Aguon, however, did not raise this issue at the closeof the Government’s proof and thus failed to preserve it forappellate review. See United States v. English, 925 F.2d 154,156 (6th Cir. 1991).

Brooks and Marks argue that even though the jury was

presented with evidence that the robbed banks were locatedin Louisville, Jefferson County, Kentucky, no witness everspecifically testified that the banks were located in theWestern District of Kentucky. The district court took judicialnotice that Louisville is part of the Western District ofKentucky. Brooks and Marks argue that this was improperbecause Rule 201(g) of the Federal Rules of Evidencerequires district courts in criminal cases to instruct the jury“that it may, but is not required to, accept as conclusive anyfact judicially noticed.”

 We are not persuaded. For one thing, 28 U.S.C. § 97(b)

specifically provides that “[t]he Western District [ofKentucky] comprises the counties of . . . Jefferson . . . [and]Court for the Western District shall be held at . . .Louisville. . . .”. Thus, we seriously doubt whetherLouisville’s presence in the Western District of Kentucky isa “fact” of which the court needed to take judicial notice. Buteven if it were an issue of fact, it is certainly not one aboutwhich jurors could rationally disagree. Therefore, evenassuming for the sake of argument that it was an issue of fact,

Nos. 98-6044/6048/6216 

In this case, the district court f

admissions, which the Governmemade after Defendants’ plea agreeand entered, and (2) the plea nebeyond their signing and filing. Federal Rule of Criminal Procedubecause the statements were nodiscussions.

Defendants rely on United State

(6th Cir. 1976), and United States (5th Cir. 1977), for the propositiolaw enforcement officers pursuant effect are statements “made in the cTheir reliance is misplaced. Congrin 1979; it did so in part to abrogatand Herman, because they manifeswas a too-broad view of the plea United States v. Sebetich, 776 F.2(“Prior to its amendment, the rule of ‘statements made in connection of the foregoing pleas or offers.’ . this rule liberally. . . . The legislamendments manifests congressiojudicial constructions of the prerevision of the rule appears to have to avoid the result in Herman and oresults.”). The Third Circuit 

identified Brooks as one of the “otresults.” Id. Rule 11(e)(6)(D) now statements that were “made in the with an attorney for the governme

11(e)(6)(D) (emphasis added). FBplea agreements with defendadefendants make to them are not “discussions.” See Sebetich, 776 arguments that self-incriminating police chief were protected by Rulother reasons, the police chief wa
8 United States v.

Marks, et al.

Nos. 98-6044/6048/6216

government.”). In any event, statements made after a pleaagreement is finalized are not “made in the course of pleadiscussions.” See United States v. Watkins, 85 F.3d 498, 500(10th Cir. 1996); United States v. Lloyd, 43 F.3d 1183, 1186(8th Cir. 1994); United States v. Davis, 617 F.2d 677, 685(D.C. Cir. 1979) (“Excluding testimony made after—andpursuant to—the agreement would not serve the purpose ofencouraging compromise”). 

Defendants made their statements to the FBI agent after

they negotiated their plea agreements and pleaded guilty.Accordingly, Federal Rule of Criminal Procedure 11(e)(6)does not apply, and their statements were admissible.Nevertheless, even if Rule 11(e)(6) applied, admission of thestatements was harmless error. See Fed. R. Crim. P. 52(a);Milton v. Wainwright, 407 U.S. 371, 377-78 (1972). Therewas testimony from other participants in the robberies thatDefendants robbed the banks and also other circumstantialevidence that would support Defendants’ conviction.Defendants did not show that, in the absence of theirconfessions, the evidence was insufficient.

Aguon also claims he entered the plea agreement and gave

a confession because he was coerced. Generally, voluntarystatements are admissible. See Miranda v. Arizona, 384 U.S.

436, 478 (1966). The test for voluntariness is whether theconfession was the product of free and rational choice. SeeUnited States v. Murphy, 763 F.2d 202, 205 (6th Cir.1985).If a defendant was subject to objectively coercive activity thatovercame his free will, a defendant's statement cannot be usedagainst him. See United States v. Rigsby, 943 F.2d 631, 635(6th Cir. 1991). Determining the voluntariness of a statementrequires an analysis of the totality of all the circumstances.See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973);McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.1988); 18U.S.C. § 3501(b).

In the present case, the district court held a suppression

hearing on the morning of trial and received testimony from

Nos. 98-6044/6048/6216 Aguon, his girlfriend, and Special plea statements were made in thknowledge of Defendants’ attornenot believe Aguon’s testimony that the alleged threatened prosecutionfound that Aguon’s statements wthat Aguon has not shown that tfindings were clearly erroneous. Aruling of the district court that admiincriminating statements.

B. Length of Sentences. Defe

claim that the length of their senteunusual punishment. Brooks and Mthe proportionality of the mandatorconstitutional challenge to a sentenreviewed de novo. See United Sta1220 (6th Cir. 1993). 

Title 18 U.S.C. § 924(c) requi

sentencing for its violation. See DU.S. 129, 132-133 (1993). Tdetermined that strict proportionalpunishment is not required. See H

501 U.S. 957, 959-960 (1991) (uphof life imprisonment without parothan 650 grams of cocaine). The the “narrow proportionality prin

United States v. Hopper, 941 F.2d Consequently, only an extreme disentence offends the Eighth Amen

In this case, no disparity exists be

and the sentence in the cases of Bcommitted nine armed bank robbMarks participated in six of the robsimilar facts, the Supreme Court hefollowing conviction of six armed convictions under 18 U.S.C. § 924