                                                          [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                 FILED
                                                           U.S. COURT OF APPEALS
                            No. 03-11199 & 03-16083          ELEVENTH CIRCUIT
                           ________________________              July 08, 2005
                                                              THOMAS K. KAHN
                       D. C. Docket No. 01-06095-CR-JAG           CLERK


UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                       versus

WILBERT McKREITH,

                                                               Defendant-Appellant.

                           ________________________

                   Appeals from the United States District Court
                       for the Southern District of Florida
                         _________________________

                                   (July 8, 2005)

Before BIRCH, CARNES and RONEY, Circuit Judges.

PER CURIAM:

      Wilbert McKreith appeals the jury convictions on seven counts of bank

robbery, 18 U.S.C. § 2113(a), and three counts of using, carrying, and brandishing

a firearm in relation to crimes of violence, 18 U.S.C. § 924(c)(1)(A) and (C), and
the district court bench trial convictions on two counts of knowingly possessing

firearms, having been previously convicted of a felony, 18 U.S.C. § 922(g)(1).

McKreith argues insufficiency of the evidence, improper admission of evidence,

other trial errors, and being sentenced without counsel in violation of the

Constitution. We affirm both the convictions and the sentence. After a recitation

of the rather complex facts in this case, construing the trial evidence in the light

most favorable to the jury verdict, we address each issue as quoted directly from

McKreith’s appellate brief.

      Eight federally-insured banks located in south Florida were robbed between

January 20, 2000 and March 1, 2001. All of the robberies contained a similar

pattern. The banks were robbed by a “light-skinned black person” wearing a plaid

shirt and ski mask. The robber demanded, sometimes brandishing a gun, that the

bank tellers place the money in a duffel bag the robber had carried into the bank

with him. Several witnesses from these bank locations testified that the robber

drove a maroon, burgundy or red-colored car. The banks utilized security and

surveillance cameras, which captured images of these robberies.

      Based on his investigation, Federal Bureau of Investigation Agent James

Lewis developed a composite description of the robbery suspect and asked local

south Florida police to “be on the lookout” for, among other things, a red or



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burgundy four-door Mercedes Benz with tinted windows. A local police officer

contacted Agent Lewis when he identified a vehicle fitting that description. That

vehicle was registered to McKreith.

      Agent Lewis obtained surveillance pictures of the robberies and showed

them to Ms. Kelly Morris, a federal employee who had known McKreith for the

previous year and a half and had visited with McKreith at his residence. Morris

told Agent Lewis that the person in the picture had a similar stature (i.e., “the

stomach sticking out”), height, and profile as McKreith. She also noted that, like

the person shown in the banks’ surveillance images, she had observed McKreith

previously wearing two wrist watches. She further noticed that the person depicted

in the surveillance pictures was wearing similar clothes that she had noticed

McKreith wearing in the past. Ms. Morris testified, “He always wore the same

type of clothing, plaid shirts, T-shirts, black jeans and double watches.” She had

also observed McKreith’s maroon Mercedes parked outside his residence when she

had visited him. Morris ultimately identified the person in the surveillance pictures

as McKreith.

      The FBI placed McKreith under surveillance and followed him to a

residence at 1540 N.W. 69th Terrace in Miami. McKreith’s tax records listed that

address as his residence. After receiving federal search warrants for both



                                           3
McKreith’s Mercedes and that residence, Agents Tye Sager and Lewis executed

the warrants on April 11, 2001. They searched for items connected to McKreith’s

suspected bank robberies. The search revealed, among other things, “a flannel or

plaid type shirt,” two black ski masks, and “a vinyl black semi-striped bag.” A

safe was also discovered in the master bedroom closet. It contained a .380-caliber

handgun, several boxes of varying ammunition, and three wrist watches. McKreith

was arrested at the residence and taken to an FBI field office. A search of

McKreith’s Mercedes discovered a bag similar to the bag used in one of the

robberies, photographs of McKreith depicting him simultaneously wearing two

watches, and a settlement statement for McKreith’s purchase of the 1540 N.W.

69th Terrace residence.

       The plaid shirt, manufactured by “Van Huessen,” seized from the residence

was sent to an FBI crime lab and was analyzed by forensic analyst Richard Vorder

Bruegge. Mr. Vorder Bruegge analyzed the shirt, along with various videotapes

and photographs, to determine if that shirt and other articles he was given matched

the articles worn by the robber in the surveillance images. Vorder Bruegge

testified that “[a]ll of the characteristics of this shirt matched the class

characteristics of the shirt worn by the bank robber in those cases that we could see

the shirt,” which was seven of the eight robberies captured by surveillance images.



                                             4
Vorder Bruegge also testified that the black bag seized from McKreith’s residence

was “indistinguishable” from the bag seen in the photos at one of the bank

robberies. He further testified that by examining the bank surveillance images, he

was able to identify that “there are similarities” between McKreith and the person

depicted in those images, including “the shape of the nose, mouth and chin.”

      McKreith moved for Fed. R. Crim. P. 12 judgments of acquittal at the close

of the government’s case-in-chief, which was denied. McKreith rested without

presenting a case-in-chief. After a six-day trial, the jury returned a guilty verdict

on counts two through seven, which included seven of the eight counts of bank

robbery, 18 U.S.C. § 2113(a), charged in the superceding indictment, and three of

the four counts of using, carrying, and brandishing a firearm in relation to crimes

of violence, 18 U.S.C. § 924(c)(1)(A) and (C). A bench trial was then held on the

two felon-in-possession of a firearm counts (counts 13 and 14). The district court

found McKreith guilty of both counts of knowingly possessing firearms, having

been previously convicted of a felony, 18 U.S.C. § 922(g)(1). He was sentenced to

an aggregate of 1,110 months’ imprisonment.

      Argument 1. “The Evidence presented was insufficient to
      establish beyond a reasonable doubt that Wilbert McKreith was
      the culprit; absent the unconstitutionally obtained and
      impermissibly allowed evidence, the government failed to present
      a prima facie case of guilt in this ‘all or nothing’ prosecution.”



                                           5
      There is sufficient evidence to support the jury’s guilty verdict. Numerous

witnesses identified, among other things, McKreith’s maroon Mercedes car, plaid

shirt, simultaneously wearing two wrist watches, ski masks, and duffle bag from

the scenes of the robberies. These witnesses were thoroughly cross-examined by

McKreith’s trial counsel, attempting to uncover inconsistencies.

      The banks’ surveillance footage were also thoroughly analyzed. The

evidence seized pursuant to the lawfully obtained and executed federal search

warrant at McKreith’s residence corroborated the testimony of the various

eyewitnesses of the robberies. A forensic expert testified that the shirt seized from

McKreith’s residence matched the shirt seen in several of the bank surveillance

images. A reasonable trier of fact could have found that the evidence established

McKreith guilty beyond a reasonable doubt. See United States v. Calderon, 127

F.3d 1314, 1324 (11th Cir. 1997) (noting that this Court is to affirm jury

convictions “provided that a reasonable trier of fact could find that the evidence

established guilt beyond a reasonable doubt”).

      Argument 2. “The government improperly obtained statements
      from the defendant warranting a new trial.”

      McKreith argues that because the agents had asked him for the combination

to the safe after he had invoked his Miranda rights, the contents of the safe should

have been suppressed as illegal fruits of the search. The government did not

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present to the jury any of McKreith’s post-Miranda statements concerning his

providing the combination to the safe found in his residence. The government only

presented to the jury the items that were found in the safe, not that McKreith had

told them the combination of the safe. The search warrant provided for the search

of the house and its contents. Because the safe was located in the house, the agents

were free to search it. The government merely avoided breaking the safe open by

asking McKreith for its combination. See United States v. Martinez, 949 F.2d

1117, 1120 (11th Cir. 1992) (noting that “a warrant to search a specific area for a

certain class of things authorizes government agents to break open locked

containers which may contain the objects of the search”). There is no reversible

error on this ground.

      Argument 3. “The defendant met his burden establishing that the
      affidavits in support of the search warrants contained false
      statements which were knowingly made in order to secure the
      issuance of the warrants.”

      McKreith did not meet his burden establishing that the affidavits in support

of the search warrant contained reckless or intentional misrepresentations or

omissions. After a full evidentiary hearing on McKreith’s motion to suppress, the

magistrate judge issued a thorough report and recommendation, which was adopted

by the district court, indicating that the allegations made by Agent Lewis in his

application for search warrant “were neither false nor misleading.” There is no

                                          7
clear error in this finding. See United States v. Jenkins, 901 F.2d 1075, 1079 (11th

Cir. 1990). Furthermore, there was no error in denying a hearing pursuant to

Franks v. Delaware, 438 U.S. 154 (1978). See Jenkins, 901 F.2d at 1080-81

(affirming the district court’s refusal to hold a Franks hearing; and noting that a

Franks hearing is only required when defendant proves knowing or reckless

representation).

      Argument 4. “The ‘good faith’ exception does not apply to
      warrants based upon factually inaccurate or false information
      intentionally supplied by the affiant in order to procure the
      issuance of a search warrant.”

      The magistrate judge further ruled that even if Agent Lewis had provided

inaccurate information, “it would have been no different in terms of my finding of

probable cause to issue the warrant[s].” Since the record supports the finding that

the allegations made by Agent Lewis in his application for search warrant “were

neither false nor misleading,” the “good faith” exception does not come into play

and therefore, there was no reversible error on this issue.

      Argument 5. “The district court reversibly erred by allowing
      improper expert testimony.”

      The district court did not abuse its discretion by admitting the testimony of

government forensic expert Richard Vorder Bruegge. The court conducted a

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) hearing, where



                                           8
McKreith had the opportunity to voir dire and, during his testimony, cross-examine

Vorder Bruegge as to his scientific techniques and conclusions, including the

commonality of the shirt seized in McKreith’s residence with the shirts depicted in

the banks’ surveillance images. The jury was free to accept or reject Vorder

Bruegge’s testimony. Alternatively, any error in admitting Vorder Bruegge’s

testimony was harmless in light of the overwhelming evidence of eyewitness

identifications of McKreith’s Mercedes, clothing, and duffle bag at the banks, his

identification by Kelly Morris, as well as the evidence seized from McKreith’s

residence and car.

      Argument 6. “The district court reversibly erred by convicting
      William McKreith on Counts 13 and 14 of the superceding
      indictment.”

      The district court did not err by adjudicating McKreith guilty of the two

charged felon-in-possession of a firearm counts (counts 13 and 14) after a bench

trial. McKreith filed a motion to sever these two charges from the jury trial and

requested that they be tried in a bench trial due to his fear that the jury would be

“prejudiced” by learning that he was a convicted felon. The district court granted

McKreith’s motion to sever. In so doing, McKreith thus waived his right to a jury

trial on these counts and consented to a bench trial.




                                           9
      McKreith also stipulated that the firearms were manufactured outside the

state of Florida, which he now, on appeal, contends the government failed to prove.

A review of the transcript reveals the following stipulation from McKreith’s

counsel, “The guns were not manufactured in the State of Florida.” The district

court accepted the stipulation of the parties, “So the record may be clear, the Court

will accept the stipulation of the parties with respect to, A, the fact that the firearms

were not manufactured in the State of Florida; B, that the defendant indeed is a

convicted felon; and C, that . . . they are firearms.” This stipulation was sufficient

to meet the government’s burden of establishing the elements of the felon-in-

possession of a firearm charges, 18 U.S.C. § 924(g)(1). See United States v.

Hardin, 139 F.3d 813, 816-17 (11th Cir. 1998) (upholding felon in possession of

firearm jury conviction where defense attorney stipulated to “essential element”

offense).

      Argument 7: “The district court reversibly erred by allowing
      evidence of bank fraud during this bank robbery trial.”

      McKreith argues that the district court erred by permitting Ronald Amira,

the owner of “Amira Homes” who had sold three homes to McKreith in

approximately 2000, to testify that McKreith had a “propensity for concealing

facts.” At trial, the government asked Amira whether he had knowledge of

whether McKreith had been employed by Amira Homes or Pool and Patio King

                                           10
Service, Amira’s brother’s company, which were listed as “job references” on

McKreith’s mortgage applications that were used to secure mortgages for the

homes McKreith had purchased from Amira. Amira testified that McKreith had

not been employed by those two companies earning a monthly income of $3,300 as

was listed on McKreith’s mortgage loan application. Amira further testified that

he had recalled McKreith: (1) pulling $1,000 in cash from his pocket to pay a

deposit on one of the homes and (2) driving a burgundy Mercedes.

      First, because McKreith did not object to Amira’s testimony at trial, we

review this claim for plain error. See United States v. Puche, 350 F.3d 1137, 1151

(11th Cir. 2003). Next, there was no error, plain or otherwise, because the

evidence was offered by the government to establish McKreith’s lack of legitimate

sources of income and unexplained sudden wealth and expenditures during the

time periods of the charged bank robberies, which was a recurring theme of the

government’s case. It was not offered to show McKreith’s criminal propensity to

commit “bank fraud,” as he argues here. See United States v. Gonzalez, 940 F.2d

1413, 1423 (11th Cir. 1991) (rejecting defendant’s Rule 404(b) argument, and

finding no abuse of discretion in district court’s admission of loan application and

health insurance form to show false employment history, noting, “evidence of

appellant’s apparent attempt to conceal the true source of his sudden wealth by



                                          11
falsely listing a source that appeared to be legitimate is relevant to negate any

legitimate source for these funds, and is not unfairly prejudicial”).

      Argument 8. “The district court reversibly erred by forcing
      Wilbert McKreith to be sentenced without counsel in violation of
      his constitutional rights.”

      The transcripts reveal that McKreith knowingly elected to proceed pro se

during sentencing, despite the district court’s thorough explanation of “the dangers

of proceeding” without an attorney as required by Farretta v. California, 422 U.S.

806 (1975). Despite the district court’s caution, McKreith expressly chose to

proceed without his lawyer, John Howes, requesting in a motion filed with the

district court that Howes be discharged and that he be permitted to represent

“himself.” See United States v. Kimball, 291 F.3d 726, 730-31 (11th Cir. 2002)

(explaining requirements for defendant to proceed pro se under Farretta). At a

hearing on McKreith’s motion to discharge Attorney Howes and to proceed pro se,

the district court noted:

             I would remind you that the record in this case will reflect
             that in this room after closing arguments, while the jury
             was deliberating, you advised the Court that you were
             very happy with the way Mr. Howes had represented you
             in connection with this case. And I was certainly pleased
             to hear that, because it was my opinion, which I think I
             stated at the time, that I certainly agreed with you and I
             thought he had done an excellent job in representing you,
             considering the weight of the evidence the government
             had against you. The Court finds that it has previously

                                           12
             explained at great length to this defendant at the time of
             the Faretta hearing . . . of the perils of proceeding pro se
             in connection with a criminal case. However, since he
             certainly has every right in the world to represent himself,
             and since he is no longer satisfied with his counsel, the
             defendant Wilbert McKreith’s motion to withdraw
             counsel and to proceed to represent himself will be
             granted, and Mr. McKreith can proceed to represent
             himself pro se in this matter.

      McKreith has not identified, nor has this Court found, any authority requiring

a reversal under the facts and circumstances of this case. There was no error,

constitutional or otherwise, by the district court granting McKreith’s motion to fire

his attorney and to proceed pro se.

      AFFIRMED.




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