* This order and judgment is not binding precedent, except under the doctrines of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. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

APR 13 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARVIN E. MILLER,

Defendant-Appellant.

No. 97-3165

(D.C. No. 96-40064-01-DES)

(District of Kansas)

ORDER AND JUDGMENT*

Before BALDOCK, Circuit Judge, LUCERO, Circuit Judge, and McWILLIAMS,

Senior Circuit Judge.

Neither party to this appeal has requested oral argument. After examining the

briefs and the appellate record, this three-judge panel has determined unanimously that

oral argument would not be of material assistance in the determination of this appeal. See

Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted

without oral argument.

Marvin E. Miller was charged in a three-count indictment with bank robbery. 
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Specifically, in count one he was charged with taking by force and intimidation

approximately $32,000.00 from employees of the Credit Union Service Center (“Credit

Union”) in Topeka, Kansas, whose deposits were insured by the National Credit Union

Administration Board, and that in so doing, he was armed with a dangerous weapon,

namely a handgun, in violation of 18 U.S.C. §§ 2113(a) and (d) and 18 U.S.C. § 2. In

count two Miller was charged with using and carrying a firearm during and in relation to

a crime of violence, namely bank robbery as charged in count one of the indictment, in

violation of 18 U.S.C. §§ 2113(a) and (d) and 18 U.S.C. § 924(c)(1) and (2). In count

three Miller was charged with conspiring with Jonathan Elrod and Elliott Sylvester

Thurmond to commit an offense against the United States, namely bank robbery, as

alleged in count one, in violation of 18 U.S.C. § 371.

It was the government’s theory of the case that Miller, Thurmond and Elrod

robbed the Credit Union on March 11, 1996 at gun point. More specifically, it was the

government’s theory of the case that Thurmond and Miller, wearing masks, entered the

Credit Union, each carrying a firearm, and forcibly took $32,000.00 from its employees,

and that Elrod remained outside during the robbery and drove the get away car. The

charges against Thurmond and Elrod were disposed of without trial. At Miller’s trial,

both Thurmond and Elrod testified that Miller was one of the two who entered the

premises of the Credit Union and, at gunpoint, took the $32,000.00 from the Credit

Union. 
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From the record before us, we do not know whether Miller testified at his trial. Be

that as it may, Miller’s defense was that he was not in any way involved in the robbery of

the Credit Union on March 11, 1996.

Upon trial, the jury convicted Miller on all three counts. Miller was thereafter

sentenced to imprisonment for 71 months on count one, 60 months on count two

 to be served consecutively to the 71 months imposed on count one, and 60 months

imprisonment on count three to be served concurrently with the sentence imposed on

count one.

During the course of Miller’s trial, his counsel twice moved for a mistrial based on

testimony given by two government witnesses. Both motions were denied. On appeal,

counsel argues that both rulings were erroneous and each constitutes reversible error. We

disagree.

As indicated, Thurmond was called as a government witness. Thurmond testified,

inter alia, that he and Miller, at gunpoint, took $32,000.00 from employees of the credit

union by force and intimidation. In preliminary questioning of Thurmond, he was asked

by the prosecutor on direct examination “how long” he had known Miller. To that

question, Thurmond responded as follows: “Approximately since probably ‘94 because

we was incarcerated at the Topeka jail together.” Out of the presence of the jury, counsel

then moved for a mistrial. After argument, the district court denied the motion, but

instructed the jury to totally disregard the response by Thurmond that he and Miller at one
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time were incarcerated together in the Topeka jail. The district court did not err in its

handling of this matter. United States v. Sloan, 65 F.3d 861 (10th Cir. 1995), cert.

denied, 516 U.S. 1097 (1996).

Officer Courtney Dean, a Lieutenant with the Kansas Highway Patrol, testified that

when he interviewed Miller the latter denied any involvement in the robbery of the Credit

Union, and in connection with his denial of involvement therein Miller volunteered that

“if he were to rob anything, it would be a gas station or a quick shop and not a bank

because of the federal implications.” Counsel again moved for a mistrial, which the

district court denied. Again, we find no reversible error. The statement was made by

Miller, ostensibly to bolster his denial of involvement in the robbery of the Credit Union.

Subsequent to the jury’s verdict, counsel filed post-trial motions asking for a

judgment of acquittal or new trial, both of which were denied. On appeal, counsel argues

that the district court erred in so doing.

In connection with the district court’s denial of his motion for judgment of

acquittal, counsel argues that “no rational fact finder could convict defendant based on

the evidence presented by the prosecution herein, by a standard of proof beyond a

reasonable doubt.” In support thereof, counsel asserts that the government’s evidence

against Miller consisted only of the “word of two lying, thieving, drug addicts,” and is

insufficient, as a matter of law, to support the jury’s verdict. We reject that argument out

of hand. We have repeatedly held that a jury may convict on the uncorroborated
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testimony of an accomplice. And, in any event, there was corroboration. United States v.

McGuire, 27 F.3d 457, 462 (10th Cir. 1994).

In their alternative motion for a new trial, counsel again argued that the district

court erred in denying his motions, during trial, for a mistrial, and that such necessitated a

new trial. We have previously rejected those arguments.

Counsel’s next argument in support of his motion for a new trial is that since the

district court gave an instruction on a so-called “lesser included offense,” i.e., robbery

without a firearm, but thereafter gave no verdict on the lesser included offense of robbery

without a firearm, the defendant was somehow denied a fair trial. Counsel concedes that

he made no objection to the instruction concerning “lesser included offense” nor did he

object to the forms of verdict given the jury. Counsel does mention that the prosecution,

prior to submission of the case to the jury, did bring to the district court’s attention the

fact that there was no form of verdict given the jury on the lesser included offense, but

states that any suggestion that one be given, was summarily rejected by the district court.

It is quite true that the district court by its instruction No. 10 did instruct the jury

on the lesser included offense of robbery without a firearm. Whether that instruction was

given sua sponte or on the request of either of the parties is not disclosed by the record

before us. In any event, that instruction, to which there was apparently no objection, read

as follows:

INSTRUCTION N0. 10
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The law permits the jury to determine the guilt or

innocence of the defendant for any crime that is necessarily

included within the offense of bank robbery using a

dangerous weapon or device as charged in Count One of the

Indictment.

If you should find the defendant “not guilty” of the 

crime of armed bank robbery, therefore, then you should

proceed to determine whether the government has proven the

guilt of the defendant for the crime of bank robbery without

the use of a dangerous or deadly weapon.

As stated, there was no form of verdict submitted to the jury on robbery without a

firearm. Counsel suggests that this lead to confusion on the part of the jury, and

necessitates a new trial. We disagree.

Why the district court instructed the jury on the lesser included offense of robbery

without a firearm is not disclosed by the record before us. It would seem that such was

inappropriate, in view of the record made at trial. All the evidence adduced at trial

indicated that firearms were used by both Thurmond and Miller. Miller’s defense was not

that he robbed the Credit Union and no firearms were carried or used. Rather, his defense

was that he simply was not involved in the robbery. He just wasn’t there. While robbery

without a firearm, depending on the facts and circumstances, may well be a lesser

included offense in robbery with a firearm, it certainly was not in the instant case. The

instruction, under the circumstances, should not have been given, but we fail to see any

prejudice to Miller. The instruction was that the jury should proceed to determine

whether Miller was guilty of bank robbery without the use of a dangerous weapon if they

found Miller not guilty of armed bank robbery. And, of course, the jury found that Miller
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was guilty of bank robbery with the use of a firearm. 

Further, counsel’s suggestion that Miller should be granted a new trial on the

grounds of newly discovered evidence, i.e., the “discovery” of Elrod’s presentence report,

is without merit. See United States v. Sasser, 971 F.2d 470, 479-81 (10th Cir. 1992), cert.

denied, 507 U.S. 924 (1993). 

Counsel’s final argument is that the district court, at sentencing, erred in

computing Miller’s criminal history category. On December 3, 1990, in Kansas City,

Missouri, Municipal Court, Miller was convicted of carrying a loaded weapon and in

connection therewith given a six months suspended sentence and two years probation. 

Such conviction raised Miller’s criminal history category from III to IV. Counsel states

that at the time of this conviction in the Kansas City, Missouri, Municipal Court, Miller

was under the age of 18, and that he did not have the benefit of counsel nor did he waive

his right to counsel, and accordingly that particular offense should not have been used in

computing Miller’s criminal history category, citing our unpublished opinion in United

States v. McClennon, 1 F.3d 1250 (10th Cir. 1993). Counsel’s argument in this regard is

foreclosed by the recent pronouncement of the Supreme Court in Nichols v. United States,

511 U.S. 738 (1994). In that case the Supreme Court held, “consistent with the Sixth and

Fourteenth Amendments of the Constitution, that an uncounseled misdemeanor

conviction, valid under Scott [Scott v. Illinois, 440 U.S. 367 (1979)] because no prison

term was imposed, is also valid when used to enhance punishment at a subsequent
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conviction.” Nichols v. United States, 511 U.S. at 748-49.

Judgment affirmed.

ENTERED FOR THE COURT

Robert H. McWilliams

 Senior Circuit Judge