
USCA1 Opinion

	




          February 1, 1995      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1470                                    UNITED STATES,                                      Appellee,                                          v.                                    GARRY T. WADE,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                            Cyr and Stahl, Circuit Judges,                                           ______________                           and DiClerico,* District Judge.                                           ______________                                _____________________               Peter B. Krupp, Federal Defender Office, for appellant.               ______________               Jeanne  M. Kempthorne, Asistant United States Attorney, with               _____________________          whom  Donald  K. Stern,  United  States Attorney,  and  Sheila W.                ________________                                  _________          Sawyer,  Assistant  United States  Attorney,  were  on brief  for          ______          appellee.                                 ____________________                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                      DiClerico,  District Judge.   The  defendant, Garry  T.                                ______________          Wade, appeals  his conviction  and sentence  for bank  robbery in          violation of 18 U.S.C.A.   2113(a).  He asserts that the evidence          introduced at trial  was not sufficient  to support a  conviction          under  the statute.  He further asserts that the district court's          refusal  to depart downward was based on an erroneous belief that          the court lacked the authority under the guidelines to do so.  We          affirm  the  conviction.   We  lack  jurisdiction  to review  the          sentence.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                    On  September 11,  1992, the  Boston Five  Cent Savings          Bank, 569  Washington Street,  Boston, Massachusetts, was  robbed          shortly after 9:00 a.m.  The bank was federally insured.  A male,          acting alone, presented a teller with a handwritten robbery note.          According  to a bank audit, the teller gave the robber $1,185.10.          The robber  fled from the  bank on foot.   The bank's  video sur-          veillance  system recorded the robbery and it was also  witnessed          by others in the bank.                    On  May 23,  1993,  the defendant  was indicted  on one          count of bank robbery under 18 U.S.C.A.   2113(a) by a Grand Jury          sitting in  Boston,  Massachusetts.   On  January 28,  1994,  the          defendant was convicted by a jury in United States District Court          for the District of Massachusetts.  On April  20, 1994, the trial          judge sentenced the defendant  to prison for 210 months  with two          years  supervised release  and  a special  assessment of  $50.00.          This appeal followed.                                          II                                          II                             SUFFICIENCY OF THE EVIDENCE                             SUFFICIENCY OF THE EVIDENCE                    The court's standard of appellate review for challenges          based on the sufficiency of the evidence is settled.  "[O]ur task          is to review  the record  to determine whether  the evidence  and          reasonable  inferences therefrom,  taken as  a whole  and in  the          light most  favorable to the prosecution, would  allow a rational          jury to determine  beyond a reasonable doubt  that the defendants          were guilty as charged."   United States v. DeMasi,  No. 92-2062,                                     _____________    ______          slip op. at 16 (1st Cir. Oct. 26, 1994) (quoting United States v.                                                           _____________          Mena-Robles, 4 F.3d 1026, 1031 (1st Cir. 1993), cert. denied, 114          ___________                                     _____ ______          S.  Ct. 1550 (1994), modified  on other grounds  sub nom., United                               ____________________________________  ______          States v. Piper, No. 94-1197 slip  op. (1st Cir. Sept. 8, 1994)).          ______    _____          We  credit both  direct and  circumstantial  evidence but  do not          weigh the  relative weight  of the  evidence or  make credibility          determinations.  United States v. Loder, 23 F.3d 586, 589-90 (1st                           _____________    _____          Cir.  1994);  Mena-Robles,  4  F.3d at  1031;  United  States  v.                        ___________                      ______________          Echeverri, 982 F.2d  675, 677 (1st Cir. 1993).  Rather, "the jury          _________          is  at liberty  to select  freely among  a variety  of reasonable          alternative  constructions of the  evidence."  Loder,  23 F.3d at                                                         _____          590  (citing United States v. Smith, 680  F.2d 255, 259 (1st Cir.                       _____________    _____          1982),  cert. denied, 459  U.S. 1110  (1983)).   As a  result, we                  _____ ______          affirm convictions so long as the jury verdict finds support in a                                         -3-          "plausible rendition of the record," United States v. Ortiz,  966                                               _____________    _____          F.2d 707,  711 (1st  Cir. 1992),  cert. denied,  113 S. Ct.  1005                                            _____ ______          (1993)),  even  if  a verdict  "other  than  one  of guilt  could          reasonably  have  been reached."   DeMasi,  slip  op. at  16; see                                             ______                     ___          United  States v.  Vavlitis,  9 F.3d  206,  212 (1st  Cir.  1993)          ______________     ________          ("government need  not disprove  every  reasonable hypothesis  of          innocence"  where  record  supports verdict  beyond  a reasonable          doubt).                    To obtain a conviction for bank robbery, the government          must  prove  beyond  a  reasonable  doubt  the  identity  of  the          defendant as the robber.  See 18 U.S.C.A.   2113(a) ("whoever, by                                    ___          force and  violence, or by  intimidation, takes,  or attempts  to          take, from the person or presence of another any property").  The          defendant complains  that the circumstantial evidence placing him          at the scene of  the crime, namely the forensic  evidence related          to  his fingerprints and handwriting,  is "too weak  to support a          reasonable  inference of  guilt."1   The  defendant argues  that,          under a  line of  "fingerprints only"  cases, identity  cannot be          established solely by forensic evidence found on a movable object          at  the   crime  scene   absent  sufficient  evidence   that  the          fingerprints were placed on the object at the time of the crime.                    We  have  not  yet addressed  the  "fingerprints  only"          issue.   The defendant is correct that other circuits have, under          various circumstances, struck  down convictions  based solely  on                                        ____________________          1   For purposes of  this appeal, the  defendant does not dispute          that he wrote the demand note used in the bank robbery.                                         -4-          fingerprints obtained from  movable items.   See, e.g., Mikes  v.                                                       ___  ____  _____          Borg, 947 F.2d 353, 356-57, 360-61 (9th Cir. 1991), cert. denied,          ____                                                _____ ______          112 S. Ct. 3055 (1992); United States v. Corso, 439 F.2d 956, 957                                  _____________    _____          (4th  Cir. 1971); United States v. Collon, 426 F.2d 939, 942 (6th                            _____________    ______          Cir.  1970).  Conversly,  convictions are upheld  on appeal where          the  trial  record includes  incriminating  evidence beyond  that          found on the movable object.   See, e.g., United States  v. Luna,                                         ___  ____  _____________     ____          21 F.3d. 874, 883-84 (9th Cir. 1994) (bank robbery conviction not          based  only  on fingerprints  where  bank  teller testified  that          robber, like  defendant, had tattoo on neck);  McMillan v. G mez,                                                         ________    _____          19 F.3d  465, 469 (9th Cir.), cert. denied, 115 S. Ct. 170 (1994)                                        _____ ______          (conviction  not  based  only  on  fingerprints  where   evidence          indicated that defendant's fingerprints "could have only been put          on [movable object] at a time very close  to the murder"); United                                                                     ______          States v. Field, 875 F.2d 130, 136-37 (7th Cir. 1989) (conviction          ______    _____          not  based  only  on  fingerprints  where there  was  "plenty  of          evidence from which  the jury could infer" that  defendant placed          fingerprints on money orders during unlawful alteration).                    We  review  the record  to  determine if  the  jury was          presented with sufficient evidence to convict the defendant under          the statute.                    The government introduced  the handwritten demand  note          used in the robbery with the following appearing on it:                      Good morning I will be empting [sic] your                      drawer  this  morning  no  die  no tricks                      [sic]  I have  a bomb  and gun  that will                      self destruct immediately  so dont  [sic]                      do anything stupid thank you!!!                                         -5-          An  FBI   fingerprint  specialist   with  nearly   thirty  years'          experience  testified   that,  based  on  a   comparison  of  the          defendant's fingerprints and those present on the demand note, he          was  certain the defendant had  handled the demand  note.  An FBI          forensic  document examiner  with twenty-seven  years' experience          testified that, based on  a comparison of the handwriting  on the          demand  note and a written exemplar provided by the defendant, he          was reasonably  certain that  the same individual  wrote on  both          sheets of paper.                    The incriminating nature of the demand note and related          testimony by two  FBI experts is obvious.   However, we need  not          determine whether evidence related to this "movable" object alone          is sufficient to  identify the defendant  as the government  also          adduced other  evidence.   Isabel  Araujo,  the bank  teller  who          received the demand note and handed over the cash, testified that          the robber was  a black  male dressed in  a multi-colored  black,          white and red  jacket with  a baseball hat.   She  "guesstimated"          that  he was  approximately six  feet tall,  explaining that  she          determined the  measurement by comparison to her  father whom she          knew to be  approximately that  height.  Araujo  did concede,  on          both direct and cross-examination, that immediately following the          robbery  she had reported to police officials that the robber was          somewhat  shorter (between 5'7"  and 5'9").   She  also testified          that she did not remember if the robber had facial hair.2                                        ____________________          2   A prosecution witness,  State Police Sergeant  Michael Tobin,          testified  on cross-examination  that  Araujo told  him that  the          robber was clean-shaven.                                         -6-                    The government also  introduced a videotape,  retrieved          from the bank's security cameras,  which depicted the interior of          the bank during  the robbery  and showed Araujo  and the  robber.          The   defense  introduced   a  still   photograph  electronically          reproduced from the videotape, again depicting the  robber at the          scene of the crime.3                    The  defendant was  present  in  the  courtroom  during          trial.  The jury  had the opportunity to compare  the testimonial          and   photo-graphic    evidence   of   the    robber's   physical          characteristics with the outward appearance of the defendant.  As          part of the deliberative process, the jury was entitled to assess          witness credibility  and to weigh  the evidence  adduced by  both          sides.4                    Based on our review  of the entire record in  the light          most favorable  to the prosecution, we conclude that the evidence          introduced at trial would allow a rational jury to find, beyond a          reasonable  doubt,  that the  defendant  was  the  robber and  to          convict the defendant for bank robbery.                                         III                                         III                        REFUSAL TO DEPART UNDER THE GUIDELINES                        REFUSAL TO DEPART UNDER THE GUIDELINES                                        ____________________          3  We have reviewed  both the videotape and the  still photograph          and acknowledge that neither  presents a particularly sharp image          of the robber.          4  At  trial, the  defendant introduced evidence  to support  his          contention  that  he differed  in  physical  appearance from  the          robber in terms of height and facial hair.                                         -7-                    The  defendant next  requests a de  novo review  of his                                                    __  ____          sentence  on  the grounds  that  the  district court  erroneously          concluded it  lacked the authority  to depart downward  under the          guidelines.5   The government responds that  the district court's          refusal to  depart was discretionary and  unreviewable on appeal.          We agree.                    By statute, a defendant may appeal  a sentence based on          an  incorrect  application  of  the sentencing  guidelines.    18          U.S.C.A.   3742(a)(2)  (West Supp. 1994).   Refusal by  the trial          judge to  depart is not considered an  "incorrect application" of          the guidelines.   United States v.  Tucker, 892  F.2d 8, 10  (1st                            _____________     ______          Cir. 1989).  "It  is by now  axiomatic that a criminal  defendant          cannot  ground an  appeal on  a sentencing  court's discretionary          decision  not to  depart below  the guideline  sentencing range."          United  States v.  Pierro,  32 F.3d  611,  619 (1st  Cir.  1994),          ______________     ______          petition for cert. filed, (Oct. 25,  1994) (quoting United States          ________________________                            _____________          v. Tardiff, 969 F.2d 1283, 1290 (1st Cir. 1992); United States v.             _______                                       _____________          Amparo, 961 F.2d 288, 292 (1st Cir.), cert. denied, 113 S. Ct 224          ______                                _____ ______          (1992);  United States  v. Hilton,  946 F.2d  955, 957  (1st Cir.                   _____________     ______          1991); United States v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991)).                 _____________    ______          There is an exception to this general rule:                      [A]ppellate jurisdiction may attach if it                      appears  that  the   failure  to   depart                      stemmed   from  the   sentencing  court's                      mistaken  impression  that it  lacked the                                        ____________________          5    The  defendant  identifies  three grounds  under  which  the          district court could have  departed downward.  Given the  lack of          appellate jurisdiction,  we need  not address the  merits of  the          specific grounds.                                         -8-                      legal  authority  to  deviate   from  the                      guideline range or,  relatedly, from  the                      court's  misapprehension   of  the  rules                      governing departures.          Id. (quoting United States v. Gifford, 17 F.3d 462, 473 (1st Cir.          ___          _____________    _______          1994).                    The defendant relies heavily on the following statement          made by the trial judge at the sentencing:                    COURT:  All right.  I am going to say for the                            record I don't believe that  all that                            is in the record would warrant me  in                            departing.   I  don't think  there is                            any basis  for a departure.   If I am                            wrong, that is an appealable issue.          The defendant  argues that,  by "expressly allowing  for appeal,"          the district  court communicated its doubts  concerning the legal          basis to depart.   However,  there can be  little doubt that  the          court made  a fact-based,  discretionary decision not  to depart.          The  government,  apparently  concerned that  the  trial  judge's          initial remarks  could be  characterized as ambiguous  on appeal,          elicited a clarification:                    AUSA:   Just  for clarity  of the  record, is                            the Court's finding that it  does not                            find  the  facts  in the  Presentence                            Report   sufficiently    unusual   to                            support a departure?                    COURT:  In other words, on  the basis of  the                            fact [sic] that have been  brought to                            my attention, I do not feel that they                            warrant a departure.                    The Final Judgment confirms the discretionary nature of          the  trial judge's refusal to depart downward.  The "Statement of          Reasons" section includes the following text:                                         -9-                           The sentence  is within  the guideline                    _____                    range . . .  and the sentence is imposed  for                    the following reasons(s):                    THE   COURT   DOES    NOT   FIND   THAT   THE                    CIRCUMSTANCES AND FACTS AS  SET FORTH IN  THE                    PRESENTENCE REPORT AND DEFENDANT'S SENTENCING                    SUBMISSIONS WARRANT DEPARTURE.                    The district court, cognizant of its legal authority to          depart, examined the  facts of  the defendant's case  and made  a          discretionary  decision  not  to  depart based  on  those  facts.          Consequently,  we lack  appellate  jurisdiction to  entertain  an          appeal of the defendant's sentence.                                          IV                                          IV                                      CONCLUSION                                      CONCLUSION                    For the foregoing  reasons, we  affirm the  defendant's          conviction and dismiss  the appeal  of his sentence  for lack  of          jurisdiction.                                         -10-
