                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     December 19, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,
                                                         No. 06-2012
          v.                                      (D.C. No. CR -04-2147 JP)
                                                          (D . N.M .)
 JOHN E. SAUNDERS,

               Defendant-Appellant.




                            OR D ER AND JUDGM ENT *


Before BR ISC OE, M cCO NNELL, and GORSUCH, Circuit Judges.




      John Saunders and Jeremy Burnett planned to secure the good life the old-

fashioned way: steal it. W hen their heist plot went aw ry, M r. Burnett cut his

losses, pled guilty to various charges, and then testified against his one-time

confederate John Saunders. At trial, M r. Saunders attempted to prevent M r.

Burnett’s adverse testimony. He also objected to testimony regarding the pre-

robbery surveillance of his activities by federal agents. The district court ruled




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
against him on both counts, and the jury convicted. M r. Saunders now asks us to

declare the district court’s evidentiary rulings in error, to find that the district

court improperly instructed the jury, and to hold that the evidence the prosecution

presented was insufficient to support his conviction. W e decline these requests

and A FFIRM .

                                    I. Background

      Dolores Knight, Division President of the W estern Commerce Bank of

Albuquerque, New M exico, was in the lobby of her branch bank the morning of

October 1, 2004. Through the lobby windows she spied a red, racing-style

motorcycle drive up and park at the front entrance to the bank at approximately

10:45 a.m. The rider wore blue jeans, white shoes, a long-sleeved shirt, and a

helmet covering his face. In his right hand, he carried a gun. As the gunman

pushed through the twin sets of doors opening into the lobby, M s. Knight

maneuvered her way toward a desk with a silent alarm; and when she saw the

gunman enter the bank and make immediately for the tellers’ desks, she activated

it.

      The perpetrator emptied each of the three tellers’ drawers in turn, carefully

avoiding the dye packs interspersed among the cash bundles, though he could not

help but acquire some sixty marked bills. He left as he had entered, through the

front door, still w earing his helmet w ith the visor pulled down over his face.




                                           -2-
      Some moments later— at roughly 10:47 a.m.— a pole camera installed by

the Federal Bureau of Investigation captured a red, racing-style motorcycle

arriving at a storage unit at the W yoming M all Self Storage, located roughly one

quarter-mile from the W estern Commerce Bank. The vehicle was driven by a

man wearing clothes strikingly like those sported by the bank robber. The storage

unit belonged to John Saunders. After parking the bike, the rider disappeared

inside the unit and emerged shortly thereafter wearing a light-colored, short-

sleeved shirt, dark slacks, and dark shoes. He moved the motorcycle inside, then

climbed into a white minivan waiting nearby and drove away. FBI agents who

obtained a search warrant for the unit later discovered there a red, racing-style

motorcycle, a black motorcycle helmet equipped with a full face shield, a long-

sleeved pullover shirt, blue jeans, white tennis shoes, and a black semi-automatic

Glock .40 caliber handgun, all items matching those carried or worn by the

perpetrator, as visible in the bank’s security video.

      On the strength of this evidence, acquired within hours of the robbery,

federal agents secured an arrest warrant for John Saunders. M r. Saunders was

taken into custody around lunchtime on October 1, 2004, at his place of work— a

used-car dealership, the uniform for which consisted of dark slacks, dark shoes,

and a light yellow, short-sleeved shirt, precisely the ensemble worn by the man

who exited the storage unit just before 11:00 a.m. the day of the robbery. Agents

discovered a white minivan, like the one in the pole camera surveillance tape,

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parked in the dealership lot. Inside the van, officers found a cache of bills

amounting to almost half the amount stolen from the W estern Commerce Bank,

including fifty-nine of the sixty marked bills.

      The van belonged to one Jeremy Burnett, another employee at the car

dealership. Federal agents detained M r. Burnett, who eventually told agents he

and M r. Saunders had conspired to rob a bank. According to M r. Burnett, the

idea originated with M r. Saunders, but M r. Burnett went along despite his initial

skepticism because he needed the money to support his drug habit and meet his

mounting financial obligations. M r. Burnett supplied the weapons and the

clothes; M r. Saunders contributed the know-how and the manpow er. On June 2,

2005, M r. Burnett concluded a plea agreement with the United States, admitting

to bank robbery, aiding and abetting, and use of a firearm in relation to the crime,

in exchange for his testimony against M r. Saunders.

      A grand jury returned a two-count superceding indictment against M r.

Saunders on M arch 9, 2005, accusing him of armed bank robbery, 18 U.S.C. §§

2113(a) & (d), aiding and abetting, 18 U.S.C. § 2, and use of a firearm during the

crime, 18 U.S.C. § 924(c)(1)(A)(ii). On M ay 27, 2005, M r. Saunders filed a

motion in limine seeking to prohibit the government from introducing testimony

regarding the anonymous tip that led federal agents first to launch their

surveillance and affix a hidden camera to a light pole outside his storage unit. A t

trial, M r. Saunders sought to prevent the introduction of M r. Burnett’s testimony,

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including M r. Burnett’s reports of conversations between the two men, arguing

that the testimony was inadmissible hearsay. He also asked the district court to

issue jury instructions identifying M r. Burnett as a drug abuser. The district court

denied all motions and the jury convicted on both counts. M r. Saunders now

appeals from his conviction, contending that the district court’s evidentiary and

jury-instruction rulings constituted reversible error; he also maintains that the

evidence at trial was insufficient to support his conviction.

                             II. Surveillance Evidence

       M r. Saunders argues that the evidence of FBI surveillance, which began

months prior to the October robbery, is both irrelevant and highly prejudicial. W e

review a district court’s decision to admit evidence at trial for abuse of discretion.

United States v. Scarborough, 128 F.3d 1373, 1378 (10th Cir. 1997).

      Rule 401 of the Federal Rules of Evidence defines as relevant “evidence

having any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable.” Evidence

satisfying this standard is admissible unless “its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury.” Fed. R. Evid. 403.

      Agents’ testimony regarding the tip that prompted their surveillance and the

details of that surveillance itself were highly relevant. The surveillance evidence

demonstrated M r. Saunders’s access to a storage locker close by the bank, in

                                          -5-
which he parked a motorcycle akin, if not identical, to the one used in the

robbery. Surveillance video from outside M r. Saunders’s storage unit showed a

man of about M r. Saunders’s height and size wearing clothing similar to that

worn by the crime’s perpetrator, and within minutes of the robbery. An agent

who followed M r. Saunders in the days leading up to the crime observed him

purchase black gloves, the same pair later recovered from his locker in amongst

the other clothing worn during the hold-up. All of this evidence tended to

connect M r. Saunders to the bank theft, and none of it, importantly, was of the

sort likely to provoke an “emotional response” from the jury or otherwise affect

jurors’ view of M r. Saunders apart from their judgment of his guilt or innocence.

United States v. Tan, 254 F.3d 1204, 1211-12 (10th Cir. 2001).

      As for the testimony regarding the anonymous tip that sparked the FBI’s

interest in M r. Saunders, it was neither hearsay nor prejudicial. The government

did not disclose the contents of the tip or mention that the caller had singled out

M r. Saunders by name. Instead, the government appears to have elicited

testimony about the call merely for narrative integrity, to help the jury understand

why the FBI began its surveillance regimen. Therefore, we cannot say that this or

any other surveillance evidence introduced was either irrelevant or highly

prejudicial. Accordingly, we conclude that the district court did not abuse its

discretion by admitting the evidence at trial.




                                          -6-
                        III. Testimony of Jeremy Burnett

      M r. Saunders next argues that the district court erred by permitting M r.

Burnett to testify about his conversations with the defendant. M r. Burnett’s

testimony, the defendant contends, is inadmissible hearsay. W e disagree.

      M r. Burnett testified regarding both his ow n out-of-court statements to M r.

Saunders and M r. Saunders’s out-of-court statements to him. These statements

pose two distinct hearsay issues. See Fed. R. Evid. Rules 801(d)(2)(E),

801(d)(2)(A).

      The district court admitted M r. Burnett’s report of his ow n out-of-court

statements under Rule 801(d)(2)(E), which reads, “A statement is not hearsay

if— [t]he statement is offered against a party and is a statement by a coconspirator

of a party during the course and in furtherance of the conspiracy.” W e have held

that a district court may admit as non-hearsay a co-conspirator’s out-of-court

statements when it finds by a preponderance of the evidence that a conspiracy

existed, that both the declarant and the defendant were members of the

conspiracy, and that the statements were made in the course and in furtherance of

the conspiracy. United States v. Caro, 965 F.2d 1548, 1557 (10th Cir. 1992).

W hile the district judge may consider the hearsay statement itself to determine

whether a conspiracy existed, Bourjaily v. United States, 483 U.S. 171, 181

(1987), we have required district courts to rely on some additional, reliable

corroborating evidence to establish the existence of a conspiracy and link the

                                         -7-
defendant to it. United States v. Rascon, 8 F.3d 1537, 1540-41 (10th Cir. 1993).

W e review the district court’s findings of fact regarding the existence of a

conspiracy for clear error, United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242

(10th Cir. 1996), and its ultimate evidentiary decision for abuse of discretion,

United States v. Parra, 2 F.3d 1058, 1068 (10th Cir. 1993).

      Here, the record contains a wealth of evidence establishing the existence of

a conspiracy between M r. Saunders and M r. Burnett. To review a few of the

more telling pieces of corroborating evidence: a search of M r. Saunders’s locker

turned up clothing loaned to the defendant by M r. Burnett, highly similar to that

worn by the perpetrator of the crime; agents also discovered M r. Burnett’s

handgun in the defendant’s locker, a weapon that matched the description of the

gun used in the robbery; the government presented evidence of the two men’s

friendship stretching over a period of years; and it introduced multiple pieces of

evidence establishing M r. Saunders’s poor financial health before the robbery,

pointing to a motivation for the crime. In addition, M r. Burnett’s ow n in-court

testimony, which was subject to cross-examination, tended to corroborate the

existence of the conspiracy.

      The defendant argues that M r. Burnett never truly believed that M r.

Saunders intended to rob a bank and consequently, no conspiracy existed. Indeed,

he says M r. Burnett thought he w as joking right up to the point when he gave M r.

Burnett his share of the loot. Neither M r. Burnett’s testimony nor his actions,

                                          -8-
however, bear out this theory. W hile M r. Burnett claimed to have been initially

skeptical about M r. Saunders’s scheme, by his own admission he decided to

participate in the plan as his financial w oes mounted. And his actions certainly

indicate he viewed the heist plot as real enough: he helped M r. Saunders case

multiple banks, he contributed the clothing Saunders wore during the hold-up, and

he provided the w eapon as w ell. From this information and M r. Burnett’s own

statements, the district court could conclude that a conspiracy existed, that

Burnett and Saunders were its principals, and that their conversations about

robbing banks were made in furtherance of their plan. See Caro, 965 F.2d at

1557.

        The 801(d)(2)(E) exception for co-conspirators does not apply, however, to

M r. Saunders’s out-of-court statements, for the simple reason that M r. Saunders is

not a “coconspirator of a party,” he is the party. Fed. R. Evid. 801(d)(2)(E). But

M r. Saunders’s conversations w ith M r. Burnett do qualify as Rule 801(d)(2)(A )

statements by a party. Rule 801(d)(2)(A) provides that a statement is not hearsay

if it “is offered against a party and is the party’s own statement.” The

government did not explicitly argue for this exception below , but the district court

noted when admitting the testimony encompassing M r. Saunders’s statements that

“[p]resumably, [Saunders’s statements] also fit[] under 801(d)(2) as an admission

against personal interest.” Appellees’ A pp. 379. The district court is correct.




                                         -9-
      W e hold the court did not abuse its discretion by admitting the testimony of

Jeremy Burnett.

                               IV. Jury Instructions

      M r. Saunders requested that the district court issue Tenth Circuit Pattern

Jury Instruction 1.13 with specific reference to Jeremy Burnett. This instruction

would have directed the jury to consider especially the trial testimony concerning

M r. Burnett’s “character for truth-telling” and “reputation for truthfulness” in his

community. Tenth Circuit Criminal Pattern Jury Instruction 1.13 (2005 ed.).

There was no such testimony, however. M r. Burnett’s brother testified that

Jeremy lied to him on several occasions, but he offered no opinion as to Jeremy’s

character for truth-telling or reputation in the community. Given this, the district

court rightly opted to issue a more general impeachment instruction, directing the

jury to w eigh the credibility of all witnesses in light of the evidence. Appellants’

App. 67.

      M r. Saunders also contends that the district court should have identified

M r. Burnett by name in its instruction regarding w itnesses who are drug abusers.

See Tenth Circuit Pattern Jury Instruction 1.16. In effect, he objects to the

wording of the instruction. District courts, however, wield “substantial discretion

in fashioning jury instructions,”United States v. Schuler, 458 F.3d 1148, 1156

(10th Cir. 2006), including especially their wording, United States v. Wolny, 133

F.3d 758, 765 (10th Cir. 1998). W e review the court’s instructions only to ensure

                                         -10-
that they “cover[ed] the issues presented by the evidence and constitute[d] correct

statements of the law.” United States v. Davis, 953 F.2d 1482, 1492 (10th Cir.

1992). W e are satisfied the instruction here did both. The court was under no

obligation to list particular witnesses who met the definition of “drug abuser.”

And in fact, there was good reason not to do so. The record contained evidence

that in addition to M r. Burnett, M r. Saunders and at least one other witness also

abused drugs. Had the district court named M r. Burnett as a drug abuser, it would

have been obligated to name these witnesses as well. Tellingly, the defendant

objected to the mention of any witness other than M r. Burnett. Given this

scenario, we conclude the district court did not abuse its discretion by issuing the

generic model instruction.

      Both instructions 1.13 and 1.16 covered the issues presented by the

evidence and accurately stated the controlling law. W e find no error.



                          V. Sufficiency of the Evidence

      Evidence is sufficient to support a conviction if, viewed in the light most

favorable to the government, the direct and circumstantial evidence and all

reasonable inferences drawn therefrom would allow a reasonable jury to find the

defendant guilty beyond a reasonable doubt. United States v. Wilson, 107 F.3d

774, 778 (10th Cir. 1997). Substantial direct and circumstantial evidence in this

case— from the bank and storage unit surveillance tapes, to the bank employees’

                                         -11-
testimony, to the items recovered from both M r. Saunders’s storage unit and the

white minivan, to the testimony of Jeremy Burnett— connected M r. Saunders to

the crime. Viewed in the light most favorable to the prosecution, we are

confident that a reasonable jury could conclude beyond a reasonable doubt that

M r. Saunders was guilty.

                                 VI. Conclusion

      W e AFFIRM the district court’s decision to admit evidence of the FBI’s

surveillance of M r. Saunders. W e AFFIRM the district court’s admittance of

Jeremy Burnett’s testimony. W e AFFIRM the district court’s jury instructions,

and we AFFIRM M r. Saunders’s conviction.

                                               Entered for the Court,

                                               M ichael W . M cConnell
                                               Circuit Judge




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