                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0560n.06
                              Filed: July 1, 2005

                                           No. 04-3482

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE NORTHERN
                                       )                 DISTRICT OF OHIO
GEORGE WASHINGTON PENSON,              )
III,                                   )
                                       )                         OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: MOORE, COLE, Circuit Judges and WISEMAN,* District Judge.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant George Washington

Penson, III (“Penson”) challenges the validity of his conviction and sentence for three bank

robberies. Penson contends that he should receive a new trial based on several allegedly erroneous

evidentiary rulings by the district judge. Additionally, Penson argues that resentencing is required

as his current sentence violates the Supreme Court’s decision in United States v. Booker, 125 S. Ct.

738 (2005). We agree that Penson’s sentence violates Booker. Therefore, we VACATE Penson’s

sentence and REMAND for resentencing. As to the other errors raised by the defendant, we

AFFIRM the district court’s judgment.




       *
       The Honorable Thomas A. Wiseman, United States District Judge for the Middle District
of Tennessee, sitting by designation.
                                       I. BACKGROUND

       On March 13, 2003, Penson was released from prison after serving ninety-two months’

imprisonment for four unarmed bank robberies. Prior to this incarceration, Penson was imprisoned

in Ohio state prison and served 18 months’ imprisonment for a parole violation. When Penson was

released on March 13, Penson’s niece, LaShell Penson (“LaShell”) picked up Penson from the

federal penitentiary in Elkton, Ohio with the intent of driving him home to Youngstown, Ohio,

where Penson’s sister and nieces resided. On the drive to Youngstown, Ohio, Penson had LaShell

stop at two banks: Consumer’s National Bank in Lisbon, Ohio and Sky Bank in North Lima, Ohio.

LaShell remained in the car while Penson entered both banks. Following his release from federal

prison Penson did not report to either his federal or state probation officers.

       On March 17, 2003, Penson borrowed LaShell’s vehicle, a burgundy Delta 88 Oldsmobile

with the word “hot” scratched into the front hood. Penson drove the vehicle to the Sky Bank in

North Lima and proceeded to rob the bank of over $29,000. Several witnesses observed the vehicle

in the area of the bank at the time of the robbery. On April 4, 2003, Ashley Davis (“Davis”),

Penson’s seventeen-year-old niece, drove Penson to Akron, Ohio in Penson’s black Jaguar. Penson

then stole a vehicle from a grocery store parking lot and the two drove both cars to the First Merit

Bank in Akron. Penson robbed the bank of approximately $21,000. He then left in the stolen

vehicle, with Davis following him in the Jaguar. A bank customer followed the two cars for a

distance but eventually stopped after Penson exited the stolen vehicle and pointed a gun at the

customer. On April 10, 2003, Penson drove with LaShell and his girlfriend Angelique Stanford in

LaShell’s van to Lisbon, Ohio, where Penson stole another vehicle. The two vehicles proceeded to

Consumer’s National Bank, where Penson entered the bank and stole over $22,000. Based on


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Penson’s earlier withdrawal at the bank on March 13th, a bank teller and the bank manager were

able to identify Penson as the robber.

       Once Penson became a suspect as a result of this identification, FBI Special Agent Gerald

Hopper (“Agent Hopper”), a member of the Mahoning County Violent Crimes Task Force assigned

to investigate the robberies, contacted the Ohio Adult Parole Authority to gather further information

on Penson. Parole Officer Robert O’Malley (“Parole Officer O’Malley”) checked the Law

Enforcement Automated Data System and discovered that there was an active warrant for Penson’s

arrest for a state parole violation. Parole Officer O’Malley then requested that Agent Hopper and

the Violent Crimes Task Force assist him in arresting Penson as fugitive. Penson was later located

and arrested outside Penson’s sister’s residence in Youngstown. Following his arrest Penson was

advised of and waived his Miranda rights. Penson then confessed to committing all three bank

robberies. The residence at which Penson was arrested was also searched after Penson’s sister gave

the officers consent to search. At the home, the police found money from the robberies along with

the van and the burgundy Oldsmobile used during the robberies. The black Jaguar was later found

at a repair shop.

       On May 6, 2003, Penson was indicted on one count of bank robbery in violation of 18 U.S.C.

§ 2113(a) and two counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d). Prior

to trial, Penson moved to suppress “[a]ll evidence obtained directly or indirectly from searches and

seizures of the Defendant, his residence, his domicile and/or any automobiles operated by him or

to which he had access, on the ground that said searches and seizures were conducted without a

warrant, without probable cause and not incident to a lawful arrest.” Joint Appendix (“J.A.” at 44)

(Mot. to Suppress at 1). Penson also moved to suppress his confession on the grounds that his


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Miranda rights had been violated. The district court denied Penson’s motion, stating that no warrant

was needed for the search because it had been authorized by Penson’s sister and that Penson’s

Miranda rights had not been violated.

       At trial, Davis testified to her involvement in the robbery of the First Merit Bank. During

her testimony Davis was asked how long she had known Penson, to which she replied “I really had

no relationship with him until he had got out of jail.” J.A. at 127 (Trial Tr. at 134). Defense counsel

objected to Davis’s reference to Penson’s prior incarceration and moved for a mistrial. The district

court offered to give the jury a curative instruction but denied the motion for a mistrial on the

grounds that the statement was unsolicited and Davis had been warned by the prosecution not to

mention Penson’s prior criminal history during her testimony. The trial continued and no curative

instruction was given. Subsequently, Davis was asked how long Penson had owned a black Jaguar,

to which Davis stated, “I’m not sure. He bought it soon as he got out.” J.A. at 136 (Trial Tr. at

143). Defense counsel again objected to the reference to Penson’s prior record, but the district court

permitted questioning to continue. Later in the trial Randy Spano (“Spano”), a mechanic at the

repair shop where Penson’s Jaguar was found, testified. Spano was asked how many times he had

spoken with Penson, and Spano replied, “Quite a few. I believe we spoke while he was

incarcerated.” J.A. at 112 (Trial Tr. at 199). Following this comment, defense counsel renewed his

motion for a mistrial, and the district court denied the motion. At the close of trial, the jury found

Penson guilty on all counts. Penson was then sentenced to 365 months’ imprisonment.1 Penson

filed this timely appeal.



       1
         Penson was also sentenced to 24 months’ imprisonment for violating federal supervised
release, to be served prior to the 365-month sentence.

                                                  4
                                          II. ANALYSIS

       On appeal, Penson raises three claims.          First, Penson argues that his arrest was

unconstitutional and thus his motion to suppress his confession ought to have been granted. Second,

Penson contends that the district court erred in denying his motion for a mistrial based on several

references by witnesses to his past incarceration. Third, Penson asserts that he should be

resentenced as he was sentenced in violation of Booker. We will address each these claims in turn.

A. Motion to Suppress

       When reviewing a district court's denial of a motion to suppress evidence, we review the

factual findings for clear error and the legal conclusions de novo. United States v. Foster, 376 F.3d

577, 583 (6th Cir.), cert. denied, 125 S.Ct. 635 (2004). The burden of proof is on the defendant to

demonstrate “a violation of some constitutional or statutory right justifying suppression.” United

States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. 2003) (internal quotation marks and citation

omitted). “When reviewing the denial of a motion to suppress evidence, we must consider the

evidence in the light most favorable to the government.” Id. (internal quotation marks and citation

omitted).

       Before the district court, Penson argued that his confession ought to be suppressed based on

violations of his Miranda rights. On appeal, Penson now asserts an alternate theory for the

suppression of his confession. Penson currently contends that his arrest violated the Fourth

Amendment, and thus that his confession must be suppressed as a product of this illegal arrest. See

Wong Sun v. United States, 371 U.S. 471, 484-85 (1963) (indicating that generally any evidence that

is the fruit of an illegal search or seizure must be suppressed). The government asserts that this new

theory was never advanced before the district court and thus cannot be raised before this court.


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Appellee Br. at 19. The government’s argument, however, confuses waiver, in which a defendant

intentionally relinquishes a known right and may not raise that right on appeal, with forfeiture, in

which a defendant fails to assert timely a right, and may only raise that right on appeal if the plain-

error standard has been met. See United States v. Osborne, 402 F.3d 626, 630 (6th Cir. 2005)

(discussing the difference for purpose of appeal between forfeiture and waiver). Here, Penson did

not waive his right to challenge the validity of his confession on Fourth Amendment grounds.

Instead, he merely failed to raise the challenge in a timely manner. We therefore may review

Penson’s claim and provide relief if the district court’s admission of the confession was plainly

erroneous. See United States v. Olano, 507 U.S. 725 (1993) (outlining the elements of the plain-

error test). In this case, we find that no violation of Penson’s Fourth Amendment rights occurred

and thus the district court did not plainly err in denying Penson’s motion to suppress his confession.

       Penson argues that the officers investigating the bank robberies used Parole Officer

O’Malley as a “stalking horse,” meaning that the police used the state parole officer as a means of

carrying out a seizure which the police had no investigatory authority to perform. We have

previously recognized that “it is impermissible for a probation search [or seizure] to serve as

subterfuge for a criminal investigation.”2 United States v. Martin, 25 F.3d 293, 296 (6th Cir. 1994).

Nonetheless, it is wholly permissible for law enforcement officers and probation officers to “work


       2
         We note the question whether the “stalking horse” theory is even a cognizable argument
following the Supreme Court’s decision in United States v. Knights, 534 U.S. 112 (2001). In
Knights the Court stated that in determining the constitutionality of a search of a probationer “there
is no basis for examining [the] official purpose”of the search. Id. at 122. As the Ninth Circuit noted
in United States v. Stokes, 292 F.3d 964, 967 (9th Cir.), cert. denied, 537 U.S. 964 (2002), this
holding seems to suggest that prior “cases holding searches of probationers invalid on the ground
that they were subterfuges for criminal investigations is . . . no longer good law.” We need not
decide, however, whether the “stalking horse” argument is still good law as it does not apply to the
circumstances of this case.

                                                  6
together and share information to achieve their objectives.” Id. Thus, probation officers may

properly request police assistance in executing their duties as probation officers. United States v.

Butcher, 926 F.2d 811, 815 (9th Cir.), cert. denied, 500 U.S. 959 (1991). The only type of

cooperation which the Fourth Amendment prohibits is the use of the probation system for

investigatory purposes in order to permit law enforcement officers to evade the Fourth Amendment

warrant requirement. See Martin, 25 F.3d at 296.

       In this case, Parole Officer O’Malley was not used as a “stalking horse” in order to execute

an otherwise illegal seizure of Penson. In determining that there was an outstanding warrant for

Penson’s arrest for parole violations and ensuring that the arrest warrant was executed, Parole

Officer O’Malley was merely carrying out his duties as a parole officer. Penson’s arrest at the

behest of Parole Officer O’Malley was not an attempt by the police to evade the Fourth Amendment

warrant requirement as there was an active warrant for Penson’s arrest. The existence of the warrant

must therefore defeat Penson’s “stalking horse” argument. We therefore conclude that the district

court did not err in denying Penson’s motion to suppress his confession subsequent to arrest.

B. Prior Incarceration References

       Penson contends that the district court erred in denying his motion for a mistrial based on

statements by Davis and Spano during trial which alluded to Penson’s prior incarceration. We

review a district court’s evidentiary rulings, along with a district court’s denial of a motion for a

mistrial, for an abuse of discretion. United States v. Humphrey, 279 F.3d 372, 376 (6th Cir. 2002);

United States v. Parker, 997 F.2d 219, 221 (6th Cir. 1993). “The scope of this discretion has been

broadly construed, and the trial court's actions are to be sustained unless manifestly erroneous.”

Humphrey, 279 F.3d at 376 (internal quotation marks and citation omitted).


                                                 7
        The government may not introduce evidence of a defendant’s prior convictions where the

defendant does not testify at trial and the defendant’s character is not otherwise at issue. United

States v. Terry, 729 F.2d 1063, 1070 (6th Cir. 1984). Therefore, it was erroneous for Davis and

Spano to make statements which may have informed the jury of Penson’s prior criminal history. We

must determine, however, not only whether the admission of the statements was erroneous, but more

importantly whether the district court abused its discretion by denying defense counsel’s motion for

a mistrial. See id. (noting that we must “review the record as a whole and determine whether the[]

errors so adversely affected the rights of the defendants as to compel reversal. If not then we must

determine whether the exercise of our supervisory powers require[s], as matter of sound judicial

administration, the deterrent therapy of a new trial.”).

        In this case, we believe that the references made by Davis and Spano to Penson’s past

incarceration constituted harmless errors and thus did not require the district court to grant defense

counsel’s motion for mistrial. These statements were not intentionally elicited by the prosecutor,

but were instead inadvertent slips by two legally unsophisticated witnesses. Additionally, none of

the three statements informed the jury of the nature of Penson’s criminal history. The statements

only made the jury aware that Penson had been incarcerated in the past. The jury was not made

aware of the fact that Penson had been convicted previously of bank robbery. The district court also

offered to provide a curative instruction to jury as to the statements, but defense counsel did not

accept this offer.

        More importantly, even without these statements, the evidence against Penson was, as

Penson concedes in his brief, “overwhelming.” Appellant Br. at 31. At trial, the government

introduced into evidence, inter alia,: (1) Penson’s confession to all three bank robberies; (2) the


                                                  8
money and automobiles recovered from Penson’s residence that were linked to the robberies; (3)

eyewitness testimony of Penson’s nieces and girlfriend who assisted Penson in the robberies; and

(4) eyewitness testimony of others who observed the robberies. Consequently, the evidence properly

introduced by the prosecution leaves little doubt as to Penson’s guilt. Under the circumstances of

this case, we therefore conclude that the witnesses’ statements alluding to Penson’s prior criminal

history were harmless error and it was not an abuse of discretion for the district court to deny

Penson’s motion for a mistrial.

C. Sentencing Error

       Following the Supreme Court’s recent decision in United States v. Booker, 125 S. Ct. 738

(2005), both parties have agreed that Penson’s sentence constituted plain error and that remand to

the district court for resentencing is appropriate. See United States v. Oliver, 397 F.3d 369 (6th Cir.

2005). We will therefore vacate Penson’s sentence and remand the case for resentencing.

                                        III. CONCLUSION

       For the reasons stated above, we VACATE Penson’s sentence and REMAND for

resentencing. As to the other errors raised by the defendant, we AFFIRM the district court's

judgment.




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