                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                           FILED
                       -------------------------------------------U.S. COURT OF APPEALS
                                    No. 06-13268                    ELEVENTH CIRCUIT
                                                                        MAY 09, 2007
                              Non-Argument Calendar
                      -------------------------------------------- THOMAS K. KAHN
                                                                          CLERK

                       D.C. Docket No. 05-00058-CR-1-1

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                      versus

CHRISTOPHER JODALE CUNNINGHAM,

                                                          Defendant-Appellant.

                       ----------------------------------------
                  Appeal from the United States District Court
                     for the Southern District of Georgia
                      ------------------------------------------
                                  (May 9, 2007)

Before EDMONDSON, Chief Judge, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

      Defendant-Appellant Christopher Jodale Cunningham appeals his

convictions following a jury trial for conspiracy to commit armed bank robbery,
18 U.S.C. § 371, and armed bank robbery, 18 U.S.C. § 2113(a) and (d). No

reversible error has been shown; we affirm.

      On 29 March 2005, two men wearing dark jumpsuits and ski masks robbed

a bank with guns in Waynesboro, Georgia. During Cunningham’s trial, witness

Brenda Rollins testified that, on the morning of 29 March, she saw Damien

Jermaine Jones arrive at her apartment complex in Waynesboro, exit his car with a

bag, and talk to Cunningham. She testified that she did not see the contents of

Jones’s bag; and, during her testimony, Rollins denied earlier telling F.B.I. Agent

Charles McKee that she had seen a gun and a black jumpsuit in Jones’s bag.

Rollins also testified that, later on 29 March, she saw Cunningham as a passenger

in a green car but that she could not see the car’s driver. In addition, Rollins

testified that, on the night of 29 March, she saw Cunningham return to her

apartment building from the back of the building. Rollins denied telling Agent

McKee that she had seen Cunningham jump the fence behind her apartment

complex on the night of the robbery.

      When Agent McKee testified at Cunningham’s trial, the government asked

him whether Rollins had told him that she saw items in the bag that Jones carried

on the day of the bank robbery. Cunningham raised a hearsay objection; and the

government explained that it was impeaching Rollins. The district court permitted

                                          2
Agent McKee to answer the government’s question; and Agent McKee testified

that Rollins had told him that she saw a jumpsuit and a gun in Jones’s bag. Agent

McKee also testified that Rollins had reported seeing both Jones and Cunningham

in the green car on the day of the robbery and had explained that she saw

Cunningham jump the fence of her apartment building on the night of the robbery.

The district court later denied Cunningham’s request to explain to the jury that

Agent McKee’s testimony about Rollins’s prior statements was for impeachment

only and not for the truth of the matter stated.

      Cunningham first argues that the district court erred in failing to give the

requested limiting instruction to the jury. “We review a district court’s refusal to

give a requested jury instruction for abuse of discretion.” United States v.

Martinelli, 454 F.3d 1300, 1309 (11th Cir. 2006) (internal quotation omitted). The

refusal to give a requested jury instruction is reversible error in these

circumstances:

      (1) the requested instruction was a correct statement of the law, (2) its
      subject matter was not substantially covered by other instructions, and
      (3) its subject matter dealt with an issue in the trial court that was so
      important that failure to give it seriously impaired the defendant’s
      ability to defend himself.

Id. (internal quotation omitted).




                                           3
        Even if we assume that Cunningham’s requested instruction provided a

correct statement of law and was not substantially covered by other instructions,

we must consider whether the failure to give the instruction impaired

Cunningham’s ability to defend himself.1 Cunningham contends that, without

Agent McKee’s testimony about Rollins’s statements, the government did not

prove all elements of the charged crimes, including that Cunningham knew that a

gun would be used during the robbery. We disagree.

        We first note that Rollins’s statements -- even as reported by Agent McKee

-- did not tie Cunningham directly with a gun in Jones’s bag. Neither Rollins nor

Agent McKee testified that Jones gave the bag he had been carrying to

Cunningham or that the bag was seen in the green car with Cunningham on the

day of the robbery. But the government did offer evidence linking Cunningham

with materials -- guns, ski masks, and jumpsuits -- used during the robbery. For

instance, a witness testified that she saw Jones and Cunningham in a green Toyota




    1
      Cunningham argues that we should consider whether the district court’s failure to give the
requested limiting instruction was harmless by examining if the district court’s alleged error had no
effect or only a slight effect on the jury’s verdict. But, as we recently explained in Martinelli, we
evaluate whether a district court’s failure to instruct the jury is an abuse of discretion by considering
if the absence of the instruction impaired the defendant’s ability to defend himself. See Martinelli,
454 F.3d at 1309.

                                                   4
Tercel2 with guns, black ski masks, and a dark bodysuit during March 2005, the

month of the bank robbery.

          In addition, as Cunningham acknowledges in his reply brief, “there is a

great deal of circumstantial evidence tying Cunningham to the robbery,” such as

witness testimony that a car -- registered to Cunningham’s sister, which she

testified she bought for Cunningham -- was parked near the bank around the time

of the robbery and that a man wearing a ski mask ran down the street and drove off

in that car. A Georgia Bureau of Investigation Agent also testified that he saw

Cunningham jump out of a vehicle being pursued by the police after the robbery

and that Cunningham ran as money was falling off of him. Although Cunningham

escaped from this pursuit, some of the money recovered matched the bank’s bait

money.3

          Because of the evidence linking Cunningham to the robbery, a jury

reasonably could infer that the ski masks, jumpsuits, and guns used in the robbery

were the same items that had been seen with Cunningham in his green Toyota

Tercel during the month of the robbery. Therefore, the jury could find beyond a


  2
   Cunningham’s sister testified that she bought a green Toyota Tercel for Cunningham on 1 March
2005.
      3
    The bank gave $50 in “bait money” to the robbers, which is cash where the bank has recorded
the denomination and serial numbers of the currency.

                                               5
reasonable doubt that Cunningham knew that a gun would be used in the robbery,

independent of Agent McKee’s testimony. The district court’s failure to give the

requested limiting instruction did not impair Cunningham’s ability to defend

himself.4

       Cunningham also argues that Agent McKee’s hearsay testimony should not

have been permitted because the government acted in bad faith by, according to

Cunningham, offering Rollins as a witness only for the purpose of impeaching her.

Cunningham asserts that the government planned to impeach Rollins so that the

government could present to the jury hearsay testimony that was otherwise

inadmissible.

       In Rollins’s initial interview with law enforcement, which occurred at her

apartment complex, Rollins told officers that she wanted to speak with them later

at the police department. According to Agent McKee, who participated in this

interview, Rollins was not forthcoming with information; and she did not mention



   4
     We also reject Cunningham’s challenge to the failure to offer a limiting instruction on Agent
McKee’s testimony about Rollins’s statements on who was seen in the green Toyota on the day of
the robbery and how Cunningham approached Rollins’s apartment building that night. Although
Agent McKee’s testimony was that Rollins had stated that Cunningham and Jones drove away on
the day of the robbery in a green Toyota, Rollins testified that Cunningham was a passenger in this
car, which, as we have discussed, was seen near the bank around the time of the robbery when a
masked man got into it. And the differing accounts about how Cunningham approached Rollins’s
apartment building the night of the robbery do not demonstrate that the government failed to prove
that Cunningham was involved with the bank robbery earlier that day.

                                                6
seeing the contents of Jones’s bag during this initial interview.5 But Agent McKee

testified that, during a later interview, Rollins stated that she saw a gun and

jumpsuit in Jones’s bag on the day of the robbery.

          We are not persuaded that the record shows that the government expected,

or reasonably should have expected, Rollins to deny seeing the contents of Jones’s

bag during her trial testimony such that the government acted in bad faith by

calling Rollins as a witness. The district court did not err in allowing the

government to impeach Rollins.6

          AFFIRMED.




   5
       At this interview, Rollins also did not deny seeing the contents of Jones’s bag.
  6
    Cunningham argues that we should review the district court’s decision to allow Agent McKee’s
impeachment testimony for an abuse of discretion; and the government asserts that we should review
this issue only for plain error because Cunningham did not argue previously that the government had
acted in bad faith. Under either standard of review, Cunningham’s argument fails.

                                                    7
