                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0775n.06
                           Filed: September 2, 2005

                                            No. 04-1495

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                      ON APPEAL FROM THE UNITED
v.                                                    STATES DISTRICT COURT FOR THE
                                                      EASTERN DISTRICT OF MICHIGAN
ARTHUR BOWLSON,

       Defendant-Appellant.
                                                /


BEFORE:        KEITH, BATCHELDER, COLE, Circuit Judges.

       KEITH, Circuit Judge. The Defendant-Appellant, Arthur Bowlson, was indicted by a

federal grand jury on five counts of bank robbery, each in violation of 18 U.S.C. § 2113(a), and two

counts of using, carrying, and brandishing a firearm during a crime of violence, each in violation

of 18 U.S.C. § 942(c)(1)(A)(ii). On February 11, 2003, a jury convicted Bowlson of all seven counts

of the indictment. More than a year later, on February 24, 2004, the district court sentenced

Bowlson to concurrent sentences of 121 months on counts one through five, a consecutive term of

seven years on count six, and a consecutive term of twenty-five years on count seven. On appeal,

Bowlson challenges his multiple convictions and his sentencing by the district court. For the reasons

set forth below, we AFFIRM Bowlson’s convictions, VACATE his sentence, and REMAND this

case for re-sentencing by the district court.

                                        I. BACKGROUND

       During the period between May 1 through September 18, 2001, Bowlson committed five
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bank robberies. The first bank robbery occurred on May 1, 2001, at the Old Kent Bank on Harper

Avenue in Clinton Township, Michigan. Bank employees could not identify Bowlson because he

was wearing a ski mask over his face; he also had placed tape over the tips of his fingers apparently

to avoid leaving his fingerprints at the scene. The employees, however, observed the masked

individual leap over the teller counter, grab a teller by the arm, and point a gun at the teller, all prior

to escaping with $6,411. Bowlson’s wife later admitted that she had driven Bowlson to the Old Kent

Bank that day, waited in the car while he went inside, and that he returned to the car with a gun and

a fisherman’s hat stuffed with cash.

        On June 1, 2001, Bowlson robbed another branch of the Old Kent Bank. The bank’s

surveillance camera recorded parts of this robbery, showing that the robber wore a ski mask over

his head and had placed tape over his fingertips. Bowlson leaped over the teller counter and escaped

with $7,434.

        On July 25, 2001, Bowlson demanded $2,631 from tellers at the Huntington National Bank

in Mt. Clemens, Michigan. Again, he wore a ski mask over his head and tape on his fingers as he

leaped over the teller counter and took money from the tellers’ drawers. On this occasion, one of

the tellers successfully gave Bowlson a packet of “bait bills” containing a dye pack. At about the

time Bowlson was leaving the bank, a passerby observed a “smoke bomb” explode inside a blue

Ford Taurus and then observed a bag being thrown out of the car window. Where the bag landed,

the authorities discovered red-dyed currency. The authorities also recovered a baseball hat and a

ski mask. On the day in question, Bowlson had borrowed his wife’s blue Taurus, and she found a

red stain on the floor of the vehicle consistent with the chemicals in the dye pack.



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       Approximately two weeks later, on August 6, 2001, Bowlson robbed the Huntington

National Bank on Harper Avenue in Clinton Township. Bowlson entered the bank wearing a mask

and carrying a child’s pink backpack, leaped over the teller counter, and took $11,481 from the

tellers’ drawers while pointing a gun in the faces of the two tellers. Police later identified Bowlson’s

palm prints on the counter he jumped over.

       Following his fourth robbery, Bowlson recruited some of his friends to commit bank

robberies with him. He told Robert Moore that he had “hit” banks before, sometimes with a note

and sometimes with a gun, and that he got more money when he used a gun. The fifth robbery took

place on September 18, 2001, at the National City Bank on Harper Avenue in St. Clair Shores,

Michigan. Moore drove the vehicle transporting Bowlson, while Amont Jefferson and Marco

Houston were supposed to “run interference” in a second car to facilitate Moore and Bowlson’s

escape. On the morning of September 18, Houston borrowed Jefferson’s girlfriend’s white Mercury

Sable and then picked up Bowlson at a hotel where he and his wife had spent the night. Moore

borrowed his girlfriend’s green Ford Focus, but the men later exchanged cars prior to arriving at the

bank. Jefferson and Houston followed Bowlson to the bank in the Focus. Bowlson first sent

Jefferson inside to see whether there was bulletproof glass and to observe the number of people who

were inside. Jefferson and Houston then parked the green Ford Focus across the street while

Bowlson went inside, and Moore drove around to the alley to wait for him.

       As in the previous heists, Bowlson leaped over the teller counter, wearing a black ski mask

and holding a duffle bag in one hand and a gun in the other. He collected $12,594, including a

packet of bills from which the serial numbers had been recorded. As Bowlson exited the bank, a



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private citizen, Donald Hurst, observed him get into a white car that was sitting in an alley with the

engine running. When another bank customer told Hurst that Bowlson had just robbed the bank,

Hurst jumped into his truck and called the police while he followed the suspected bank robbers.

Police joined the chase and followed the white Sable down a major street into the next city, Grosse

Pointe Woods, where the car eventually crashed into a traffic island. Bowlson and Moore dropped

a bag outside the car and ran into a nearby school where they were finally apprehended. The

authorities recovered stolen currency from the car, a handgun in the discarded bag, and a black mask

and other clothing in another bag. Although Bowlson was initially charged only for the fifth bank

robbery, he was later turned over to federal authorities to whom he confessed that he had committed

all five bank robberies.

        II. CHALLENGES TO BOWLSON’S BANK ROBBERY CONVICTIONS

       We address each of Bowlson’s arguments against his convictions.

                                 A. Sufficiency of the Evidence

       Bowlson contends that the government did not submit sufficient evidence to sustain a

conviction against him because, he says, the government failed to: show that the Old Kent banks

were insured by the Federal Deposit Insurance Corporation (FDIC), present any eyewitness that

could positively identify him as the robber, or produce the actual gun used in the bank robberies.

The government counters that it presented a bank witness who testified with regard to the bank’s

FDIC insured status, and that the other evidence presented amply proved not only Bowlson’s

identity as the robber but also that he used a gun in the commission of these offenses.

       Bowlson did not move, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for



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a judgment of acquittal prior to the jury deliberations. In such a case, this court reviews the record

only for plain error resulting in a manifest miscarriage of justice. United States v. Swidan, 888 F.2d

1076, 1080 (6th Cir. 1989); United States v. Cox, 957 F.2d 264, 265 (6th Cir. 1992). In reviewing

a claim against the sufficiency of the evidence, we must determine whether, after reviewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319 (1979); Swidan, 888 F.2d at 1080.

       Here, Bowlson argues that the government did not show that the Old Kent banks were FDIC

insured. Bowlson’s claim, however, contradicts the record. The record reveals that the government

called as a witness the assistant vice president of Fifth Third Bank who testified that the deposits of

its predecessor, the Old Kent Bank, were insured by the FDIC.

       Similarly, Bowlson’s claim that the government did not produce an eyewitness who could

positively identify him must be rejected. The government called Bowlson’s wife, who testified that

she drove him to the first bank and that he returned to the car with a gun and money. Robert Moore,

who participated in the fifth bank robbery with Bowlson, identified Bowlson in the courtroom.

Bowlson used a distinctive mode of operation in all of the robberies; he wore a ski mask, taped his

fingertips, and leaped over the teller counter. In light of all of the evidence at trial, the jury

reasonably concluded that Bowlson was the robber without an eyewitness.

       Bowlson’s argument that the government did not introduce the actual firearm during the trial

can also be rejected. In addition to the above evidence, two bank tellers and a bank customer all

testified that the robber used a gun. The gun was visible as well in the banks’ surveillance cameras.



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Thus, the evidence was sufficient to support Bowlson’s convictions.

                                 B. Newly Discovered Evidence

       Bowlson next claims that, after the trial, he learned for the first time that the officers had

interviewed Brent Crowell. Robert Moore testified at trial that he, Bowlson, and Houston all went

to Crowell’s home to obtain a gun. According to Moore, Crowell was unwilling to provide a gun,

so they stole it from him by deception. Crowell’s proposed testimony was that he never owned a

gun. On appeal, Bowlson contends that Crowell’s contradiction of Moore could have revealed him

(Moore) as a liar to the jury, which in turn could have discarded the remainder of his testimony.

       “A motion for a new trial based on newly-discovered evidence should be granted when the

defendant has demonstrated that (1) the new evidence was discovered after trial; (2) the evidence

could not have been discovered earlier with diligence; (3) the evidence is material and not merely

cumulative or impeaching; and (4) the evidence would likely produce an acquittal.” United States

v. Hopper, 384 F.3d 252, 258 (6th Cir. 2004) (citation omitted). We review a district court’s denial

of such a motion for an abuse of discretion. Id.

       Applying these principles, Bowlson’s challenge must be rejected. Bowlson knew of

Crowell’s existence prior to trial and has failed to show that he could not have discovered Crowell’s

planned testimony earlier. Moreover, Crowell’s testimony only concerned the origins of the firearm

used in the commission of the crime. As set forth above, the testimony of other witnesses and other

evidence sufficiently supports the fact that a firearm was used. Bowlson now seeks Crowell’s

testimony in an attempt merely to impeach Moore’s account of what occurred. He has not explained

how Crowell’s testimony amounts to more than merely impeaching evidence. In light of the



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substantial evidence introduced against Bowlson at trial, we do not conclude that any testimony by

Crowell would likely have resulted in Bowlson’s acquittal.

                                  C. Suppression of Confession

       Bowlson was initially charged by state authorities only with the fifth bank robbery. Counsel

was appointed to represent him on that charge. When the federal government decided to prosecute,

the state charge was dismissed and Bowlson was subsequently arrested and interviewed by the

Federal Bureau of Investigation (FBI). During the FBI interview, Bowlson confessed to all five

robberies and admitted using a gun. He now contends that his confession to the FBI must be

suppressed because any questioning of him after the appointment of his counsel on the state charge

violated the Sixth Amendment.

       “The Sixth Amendment right . . . is offense specific. It cannot be invoked once for all future

prosecutions, for it does not attach until a prosecution is commenced. . . . And just as the right is

offense specific, so also its . . . effect of invalidating subsequent waivers in police-initiated

interviews is offense specific.” McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). In this case, the

government agreed that it would not introduce into evidence Bowlson’s confession to the fifth

robbery. Since the state charged Bowlson and appointed him counsel only for the fifth robbery, his

Sixth Amendment right to counsel only applied to that offense. Accordingly, the district court

properly denied Bowlson’s motion to suppress the portion of his confession regarding the other

robberies that was offered by the government.

                               D. Racial Composition of the Jury

       Bowlson claims that he objected in the district court to the fact that, despite the racial



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makeup of the surrounding area, his jury venire was composed of only one African American. He

further complains that the only African American who was chosen for the jury was later dismissed

as one of the alternates. According to Bowlson, these facts “constitute a prima facie example of a

violation of the cross section [requirement].” Appellant’s Br. at 20.

         “Defendants are not entitled to a jury of any particular composition, but the jury wheels,

pools of names, panels, or venires from which juries are drawn must not systematically exclude

distinctive groups in the community and thereby fail to be reasonably representative thereof.”

United States v. Hill, 146 F.3d 337, 343 (6th Cir. 1998) (quoting Taylor v. Louisiana, 419 U.S. 522,

528 (1975)).

         A prima facie case of a fair cross section violation requires the defendant to show:
         1) that the group alleged to be excluded is a “distinctive” group in the community;
         2) that the representation of this group in venires from which juries are selected is
         not fair and reasonable in relation to the number of such persons in the community;
         and 3) that this underrepresentation is due to systematic exclusion of the group in the
         jury-selection process.

Id. at 343 (citing Duren v. Missouri, 439 U.S. 357, 364 (1979)). Thus, to establish a constitutional

violation, Bowlson has to show that the jury selection process systematically excluded African

Americans. He has not done so. He has not even alleged as much. Accordingly, he has no viable

claim.

                E. Jury Instruction on Unanimous Verdict on § 924(c) Offenses

         Here, Bowlson argues that his convictions under 18 U.S.C. § 924(c) must be vacated because

the jury was not instructed that they needed to unanimously determine whether he possessed, used,

and carried the firearm. Bowlson, however, did not object to this jury instruction in the district

court. “When a defendant fails to object to the lack of a unanimity instruction, the court reviews the

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instructions for plain error.” United States v. Sims, 975 F.2d 1225, 1240 (6th Cir. 1992) (citations

omitted); see also United States v. DeJohn, 368 F.3d 533, 540 (6th Cir. 2004). “In analyzing the

need for a specific unanimity instruction, this Court has held, ‘The touchstone has been the presence

of a genuine risk that the jury is confused or that a conviction may occur as the result of different

jurors concluding that a defendant committed different acts.’” Sims, 975 F.2d at 1240-1241 (quoting

United States v. Duncan, 850 F.2d 1104, 1114 (6th Cir. 1988)).

       In the present case, Bowlson was convicted of two counts of using, carrying, and brandishing

a firearm during the commission of a crime. The government contends that a unanimity instruction

was unnecessary because the evidence demonstrated that Bowlson committed all three acts

punishable under the statute; that is, he used, carried, and brandished the firearm. We agree. This

case does not present a genuine risk that the jury was confused or that different jurors convicted

Bowlson of committing different acts. The witness testimony and other evidence presented at trial

supported the government’s claim that Bowlson used, carried, and brandished a firearm during the

bank robberies. As such, there was no danger that the jurors failed to agree on the criminal behavior

involved here, and the district court’s failure to give the unanimity instruction for which Bowlson

now advocates did not constitute plain error.

  E. Whether Bowlson Was Denied a Fair Trial Because Jurors Viewed Him in Shackles

       Finally, Bowlson argues that different members of the jury observed him in shackles on two

occasions. The government concedes that at least one juror may have been able to observe Bowlson

while he was in shackles and being transported to or from the courtroom. But Bowlson identified

to the court a second juror whom he believed had observed him at a separate time. The district court



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questioned each of these jurors. The district court also offered to give a curative instruction to the

full jury and to excuse the jurors who Bowlson thought had viewed him in shackles. Bowlson

declined the offer to excuse the jurors, and indicated he wanted the court to give a cautionary

instruction at the end of the case. Bowlson did not request any other relief in the district court.

       This court addressed a claim similar to Bowlson’s in United States v. Moreno, 933 F.2d 362

(6th Cir. 1991), where the court undertook the following analysis:

       We will not disturb the district court’s denial of defendants’ motion for mistrial
       absent a showing of abuse of discretion. Exposure of the jury to a defendant in
       shackles requires a mistrial only when the exposure is so ‘inherently prejudicial’ as
       to deny the defendant’s constitutional right to a fair trial. We have distinguished the
       inherent prejudice to a defendant who is shackled while in the courtroom from a
       defendant who has been observed in shackles for a brief period elsewhere in the
       courthouse. Defendants are required to show actual prejudice where the conditions
       under which defendants were seen were routine security measures rather than
       situations of unusual restraint such as shackling of defendants during trial. Courts
       have expressed a preference for remedial action after an accidental observation of a
       defendant in custody.

       In the instant case, defendants were inadvertently observed in shackles while being
       transported by the marshals and the jury learned of defendants’ custodial status
       through trial testimony. The record fails, however, to support defendants’ claims of
       inherent prejudice warranting mistrial. Their claims are further undermined by the
       district court’s instruction to the jury that the custodial status of the defendants was
       not indicative of guilt or innocence and, therefore, should be disregarded. There is
       the presumption that juries will follow such curative instructions. Because
       defendants failed to show prejudice, we find defendants’ contention that the district
       court abused its discretion in denying their motions for mistrial meritless.

Id. at 368. (internal citations and quotations omitted).

       Importantly in the case at bar, Bowlson did not request a mistrial. Bowlson’s complaint that

jurors may have seen him briefly as he was transported to and from the courtroom is not a sufficient

basis to justify setting aside his conviction. Although some level of prejudice may be inherent in



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jurors viewing a criminal defendant in shackles, here the district court properly instructed the jurors

who may have observed the defendant in shackles to disregard what they saw and not to talk about

their observations to other jurors. The district court also offered Bowlson other relief, such as

excusing those jurors whom Bowlson thought had observed him in shackles, all of which Bowlson

rejected. Thus, Bowlson has failed to establish sufficient prejudice to support the reversal of his

convictions.

                                        III. SENTENCING

       Finally, Bowlson challenges his sentencing under the federal sentencing guidelines because,

he argues, the federal guidelines are unconstitutional. Following the initiation of this appeal, the

Supreme Court decided United States v. Booker, __ U.S. __, 125 U.S. 738 (2005). Thereafter, in

a supplemental letter brief submitted to this court on May 12, 2005, prior to oral argument in this

case, the government “determined that it will not oppose a remand for re-sentencing under the

Sentencing Reform Act as amended by Booker.” Thus, we remand this case for re-sentencing in

accordance with United States v. Booker, 125 U.S. 738 (2005).

                                        IV. CONCLUSION

       For the foregoing reasons, we AFFIRM Bowlson’s convictions, VACATE his sentence, and

REMAND this case to the district court for re-sentencing.




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