                                     File Name: 06a0723n.06
                                      Filed: October 4, 2006

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                            No. 05-6061

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                         ON APPEAL FROM THE
                                                           UNITED STATES DISTRICT
BRIAN K. HERRON,                                           COURT FOR THE WESTERN
                                                           DISTRICT OF KENTUCKY
          Defendant-Appellant.


                                                      /

Before:          MARTIN and RYAN, Circuit Judges; and MARBLEY, District Judge.*

          BOYCE F. MARTIN, JR., Circuit Judge. On March 15, 2005, Brian Herron was convicted

by a jury of one count of attempted bank robbery, 18 U.S.C. § 2113(a), two counts of armed bank

robbery, 18 U.S.C. § 2113(d), two counts of brandishing a firearm during the robberies, 18 U.S.C.

§ 924(c)(1)(A)(ii), one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), one

count of escape, 18 U.S.C. § 751(a), three counts of assaulting a federal officer, 18 U.S.C. § 111(b),

and two counts of assaulting a person assisting a federal officer, 18 U.S.C. § 111(b). Herron was

then sentenced to 420 months in prison. Herron now appeals his conviction and sentence on a

number of grounds. For the foregoing reasons, we affirm the decisions of the district court.



          *
        The Honorable Algenon L. Marbley, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 05-6061
United States v. Herron
Page 2

                                                 I.

       On December 23, 2002, Herron entered a US Bank in Owensboro, Kentucky. He approached

the teller and handed her a note stating that he had a gun, to hand over money, and not to activate

any alarms. The teller asked to see the gun and Herron told her it was a Christmas joke and left the

bank. On December 26, a white male entered the BB&T Bank in Whitesville, Kentucky and held

a teller at gun point, while they filled a blue bank bag with approximately $2,400. On January 3,

2003, a white male entered the same US Bank that Herron entered on December 23 and again held

a teller at gun point while having a blue bank bag filled with approximately $1,400.

       Herron testified at trial that he was the man who attempted to rob the US Bank on December

23. He made no such admissions as to the second and third alleged robberies.

       On January 7, the police were contacted by Gerald “Jerry” Morris, who told the officers that

Herron had admitted to being involved in all three incidents. Herron was arrested and the police

searched the residence in which Herron and Morris lived. In the residence, the police found a

firearm, a blue bank bag, and clothing matching the description of that worn by the robber during

all three bank robberies (grey sweatpants and a blue jacket). On February 5, a six-count indictment

was brought against Herron.

       While in federal custody, Herron was transferred to a federal medical facility in Lexington,

Kentucky. On July 17, 2004, Herron escaped from the medical facility.1 Herron was spotted shortly



       1
         Allegedly, Herron escaped by climbing out of a window fifteen feet above the ground,
heading towards the roof. Once on the roof, Herron tied two fire hoses together and used the make-
shift rope to rappel five stories down the side of the building, then jumped over the razor wire
surrounding the facility.
No. 05-6061
United States v. Herron
Page 3

after his escape in Owensboro, Kentucky. A car carrying three Federal Bureau of Investigation

agents and two local officers attempted to stop Herron’s vehicle. Herron then ran his vehicle into

the officers’s vehicle in an attempt to flee. His attempt was unsuccessful and Herron was

apprehended in Owensboro.

       On August 4, the government obtained a thirteen-count indictment, adding charges for

Herron’s escape. Leading up to trial, Herron attempted to sever charges into two separate trials –

one for the bank robberies and a separate trial for the escape charges – but the district court denied

all of his motions. Herron also filed a motion to suppress which was denied by the district court.

On March 15, 2005, Herron was found guilty on all of the bank robbery, firearm, escape, and assault

counts. The jury did find Herron not guilty of solicitation to commit murder of a government

witness. According to the presentence report, Herron had an offense level of twenty-nine and a

criminal history category of V. This resulted in an advisory guideline range between 140 and 175

months. However, the presentence report noted that the two firearm counts carried with them

mandatory, consecutive sentences of eighty-four and 300 months respectively. These counts resulted

in a guideline range of 524 to 559 months. The district court sentenced Herron to 420 month

sentence based on a sixteen-level downward departure. Herron then filed this timely appeal of both

his conviction and sentence.

                                                 II.

A. Herron’s Sentence

       Herron argues that his sentence violates the Eighth Amendment by being grossly

disproportionate to the offense committed and “contrary to evolving standards of criminal justice.”
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Page 4

Herron’s constitutional challenge to his sentence is a question of law, to be reviewed de novo.

United States v. Lloyd, 10 F.3d 1197, 1220 (6th Cir. 1993). This Court has held that only those

“extreme sentences that are grossly disproportionate to the crime are prohibited” by the Eighth

Amendment’s ban on cruel and unusual punishment. United States v. Flowal, 163 F.3d 956, 963-64

(6th Cir. 1998) (quoting Harmelin v. Michigan, 501 U.S. 957, 995-97 (1991)).

        In this case, Herron was given thirty-five years for two bank robberies, one attempted bank

robbery, an escape, and assaulting federal officers. Herron attempts to demonstrate how his sentence

is grossly disproportional by listing the potential sentences for a terrorist detonating a bomb (235

months), a second-degree murderer (168 months), and a rapist (eighty-seven months) in comparison

with Herron’s 420 month sentence for two bank robberies. However, Herron fails to include in this

comparison the gun charges, his escape, and the assaults against federal officials which also

contributed to his final sentence.

        Herron also argues that his sentence is unconstitutional under the Eighth Amendment because

the sentence was a result of double counting of his gun charges, creating an excessive punishment.

However, Herron’s only cite to support this claim is United States v. Livingston, 941 F.2d 431, 435-

36 (6th Cir. 1991), in which we affirmed the same method of sentencing that was used in this case.

Even though the length of the sentence in Livingston was different (five years for the first use of a

gun in a bank robbery and twenty years for the second count instead of seven and twenty-five years

as in this case) it is not availing to Herron given our approval of the very same counting method used

here.
No. 05-6061
United States v. Herron
Page 5

       Herron also makes an argument challenging the constitutionality of the perceived transfer of

power from the judiciary to the prosecutors in making sentencing decisions. However, his argument

holds little persuasive power in light of United States v. Booker, 543 U.S. 220 (2005), in which the

Supreme Court held that the federal sentencing guidelines are now advisory, giving greater

discretionary power to the district courts in sentencing. Additionally, Herron argues that the failure

of a district court judge to be allowed to consider sentencing factors such as Herron’s “personal

character, family responsibilities, medical and mental condition, criminal record, and the particular

circumstances surrounding the crime” is a violation of his due process rights. Again, this argument

holds little weight considering that Herron was convicted and sentenced post-Booker, where the

district court is now permitted and, in fact, obligated to consider each of those factors as it

determines a sentence that is “sufficient, but not greater than necessary, to comply with [those]

purposes.” 18 U.S.C. § 3553(a).

       Therefore, we affirm the district court’s sentencing of Herron.

B. Herron’s Motions to Sever the Counts

       Herron appeals the district court’s decision to deny his motion to sever the charges against

him. This Court reviews a denial from a motion for severance under an abuse of discretion standard.

United States v. Tran, 433 F.3d 472, 477 (6th Cir. 2006).

       Rule 14(a) of the Federal Rules of Criminal Procedure states: “If the joinder of offenses or

defendants in an indictment, an information or a consolidation for trial appears to prejudice a

defendant or the government, the court may order separate trials of counts, sever the defendants’

trials or provide any other relief that justice requires.” Herron argues that he was prejudiced by the
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United States v. Herron
Page 6

inclusion of the felon in possession of a firearm charge, the witness tampering charge, and the escape

charge, which inflamed the jury.

           The grant or denial of a motion for severance lies within the sound discretion of the trial

court, whose “determination in this area is thus entitled to great deference.” United States v. Breinig,

70 F.3d 850, 853 (6th Cir. 1995). Therefore, this Court will overturn such a decision only where

there has been a clear abuse of such discretion. United States v. Elder, 90 F.3d 1110, 1118 (6th Cir.

1996).

           It is not clear whether evidence of Herron’s escape and assault would have been admissible

at his bank robbery trial even if the charges had been severed. See United States v. Touchstone, 726

F.2d 1116, 1119 (6th Cir. 1984) (“flight is generally admissible as evidence of guilt, and . . . juries

are given the power to determine how much weight should be given to such evidence”). Although

evidence of flight can be admissible in some cases, this court has imposed a temporal limitation on

its use.

           The immediacy requirement [of flight evidence] is important. It is the instinctive or
           impulsive character of the defendant’s behavior, like flinching, that indicates fear of
           apprehension and gives evidence of flight such trustworthiness as it possesses. The
           more remote in time the alleged flight is from the commission or accusation of an
           offense, the greater the likelihood that it resulted from something other than feelings
           of guilt concerning that offense.

Id. (citations omitted). In Touchstone, the defendants fled on the third day of their trial. Id.

Therefore, whether or not Herron’s escape would be admissible at his bank robbery trials, if they

were severed, is unclear in this Circuit given Herron’s escape took place almost five months after
No. 05-6061
United States v. Herron
Page 7

being indicted with the crimes. The immediacy requirement would have been a difficult one to

prove to allow such evidence into the bank robbery trial.

       Even so, the district court’s denial of Herron’s motion for severance is a somewhat different

question. “[T]o prevail on a motion for severance, a defendant must show compelling, specific, and

actual prejudice from a court’s refusal to grant the motion to sever.” United States v. Saadey, 393

F.3d 669, 678 (6th Cir. 2005). Herron has proven that this joinder did prejudice him by allowing the

jury to assume guilt based on the presence of the escape charge as to the bank robberies and vice

versa. However, our inquiry into this joinder of charges does not end here. “Review of errors

involving misjoinder is subject to the harmless error provision of Federal Rule of Criminal Procedure

52(a).” United States v. Chavis, 296 F.3d 450, 461 (6th Cir. 2002). “[A]n error involving misjoinder

affects substantial rights and requires reversal only if the misjoinder results in actual prejudice

because it had substantial and injurious effect or influence in determining the jury’s verdict.” Id.

(quoting from United States v. Lane, 474 U.S. 438, 449 (1986)). One of the means that a misjoinder

may be harmless error is through overwhelming evidence of guilt. Id. In this case, there was

substantial evidence of Herron’s guilt on both the bank robbery charges and the escape-related

charges, including the five witnesses who testified to Herron’s confessing to them that he committed

the bank robberies, clothing worn by the robber and the bank bag were found in Herron’s residence,

the gun was found within the bank bag, and finally, testimony of Herron’s escape and subsequent

capture from the federal officers who apprehended him.

       In light of this overwhelming evidence, we find the district court’s decision to not sever the

counts to be harmless error and affirm Herron’s conviction.
No. 05-6061
United States v. Herron
Page 8

C. Herron’s Motion to Suppress

       Herron appeals the district court’s denial of his motion to suppress evidence obtained through

search of his residence. When reviewing a district court's denial of a motion to suppress, this Court

applies a two-part standard, reviewing factual findings for clear error and legal conclusions de novo.

United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005).

       On January 8, 2003, the Owensboro Police Department and the FBI conducted a search of

3236 East Sixth Street in Owensboro, Kentucky, which at the time was allegedly the current

residence of both Gerald Morris and Herron. Morris consented to the search of the residence, which

resulted in the police obtaining the bank bag containing a handgun, newspaper clippings about the

robberies, and clothes similar to the ones worn by the robber.

       Herron argues that the district court should have suppressed the firearm which was found

inside the bank bag. Consent to search a closed container can only be provided by “a third party who

possess[es] common authority over or other sufficient relationship to the . . . effects sought to be

inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974). Herron argues that the bank bag

contains with it an inherent degree of privacy and the bag was completely zipped closed.

       The government, on the other hand, states that Morris had common authority over the bank

bag because the bag belonged to Morris and had been lent by Morris to Herron in order to hold

toiletries. Additionally, the bag was unlocked and located in a place in the apartment where both

Morris and Herron had equal access, a closet located in Morris’s bedroom containing clothes

belonging to Herron and clothes belonging to Morris. Given Morris’s ownership of the bag and his

access to the closet the bag was found in, he possessed common authority sufficient for his consent
No. 05-6061
United States v. Herron
Page 9

to allow a valid search of the bank bag. We therefore affirm the decision of the district court denying

the motion to suppress.

D. Directed Verdict

       Herron appeals the district court’s denial of a directed verdict at trial based on a failure by

the government to establish that the incidents at the US Bank and Herron’s alleged escape were

located within the Western District of Kentucky and, therefore, that venue was correct for those

charges. Additionally, Herron argues that the government did not demonstrate that the weapon used

at the two bank robberies was a “firearm” as defined by federal law and that Herron was never

specifically identified as the person committing these offenses.

       1. Venue

       The government rebuts Herron’s argument that venue was never established for the US Bank

crimes by relying on the testimony of Annette Statts, the first witness at Herron’s trial. She testified

that she worked at the “US Bank, 1701 Carter Road in Owensboro.” While she never specified what

state Owensboro was located in, the trial was taking place in Owensboro, Kentucky and could be

inferred from her testimony what state she was referring to. See United States v. Charlton, 372 F.2d

663, 665 (6th Cir. 1967) (stating that “[venue] may be shown by circumstantial as well as by direct

evidence, and a jury may infer its existence from all the evidence adduced at the trial.”). As for

Herron’s escape, FBI Agent Tim Tschida testified that he was involved in the apprehension of

Herron in “Daviess County, Kentucky.” Additionally, other officers involved in the apprehension

identified the location as Owensboro and referred to “the Dust Bowl,” which is an annual celebration

in Owensboro, Kentucky.
No. 05-6061
United States v. Herron
Page 10

        2. Sufficiency of the Evidence - Firearm

        In United States v. Forrest, 402 F.3d 678, 686-87 (6th Cir. 2005), Forrest, like Herron in this

case, objected to whether the government provided sufficient evidence to prove that a firearm was

used in the crime. In that case, this Court dismissed the argument based on the fact that the jury had

the actual weapon before it and heard testimony that the weapon was loaded. In this case, the jury

had the weapon before it, testimony about the ammunition stored with the gun, and testimony that

it was capable of expelling a projectile. This was sufficient to prove that a firearm was used in this

case.

        3. Identification

        Finally, Herron argues that no witness identified him as the person who committed the crimes

he has been charged with. The government rebuts with the testimony of two federal officers who

identified Herron as the perpetrator. Additionally, five individuals testified that Herron confessed

to the three robberies to them.

        Therefore, we affirm the district court’s decision to deny Herron’s motion for a directed

verdict.

E. The Government’s Closing Argument

        At the end of the government’s closing argument, the prosecutor said the following:

                Now, ladies and gentlemen, in opening statements defense counsel said that
        this case was about Brian Herron’s liberty and freedom. I beg to differ. This case is
        about what our kids say, what we say as kids in the Pledge of Allegiance. At the end
        of the Pledge of Allegiance what do we say? “And liberty and justice for all.” This
        case is about liberty.
No. 05-6061
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Page 11

               And what liberty do we have, what liberty do we have that Theresa Payne,
        Connie Hicks and Jennifer Spinks and tellers at the US Bank can’t go to work
        without someone pointing a gun in their face?

At this point, defense counsel objected and the district court instructed the government to “back off”

the line of argument. The government then continued its closing. “This case is about liberty. This

case is about justice. Justice, ladies and gentlemen, requires that Brian Herron be held accountable

for the crimes that he’s committed.” Herron now argues on appeal that the district court should have

set aside the jury verdict in light of these comments.

        Allegations of prosecutorial misconduct contain mixed questions of law and fact that we

review de novo. United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005). In reviewing

allegations of prosecutorial misconduct, we conduct a two-step inquiry. Id. (citing United States v.

Francis, 170 F.3d 546, 549 (6th Cir.1999)). First, we determine if the statements were improper.

Id. If they were improper, we consider the following factors to determine if the comments were

flagrant enough to warrant reversal: (1) whether the prosecutor’s remarks or conduct tended to

mislead the jury or prejudice the accused; (2) whether the remarks were isolated or extensive; (3)

whether the remarks were accidentally or deliberately made; and (4) the overall strength of the

evidence against the accused. Id.

        The government initially in its closing statement asked the jurors to consider the Pledge of

Allegiance and the words “liberty and justice for all.” This was most likely an attempt by the

government in its closing to relate their case to what the defense considered its theme: Herron’s

liberty and freedom. See id. (stating “[i]t is also appropriate to consider whether, and to what extent,

a prosecutor's improper argument is invited by defense counsel’s statements.”) Defense counsel, in
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United States v. Herron
Page 12

this case, did appear to open the door of the topic of liberty. However, the prosecutor did not stop

there. After being warned by the district court to “back off,” the prosecutor lept back in with both

feet by stating, “This case is about liberty. This case is about justice. Justice, ladies and gentlemen,

requires that Brian Herron be held accountable for the crimes that he’s committed.” While perhaps

these comments did not cross the line to impropriety, we must caution future arguments from taking

a similar course. One warning should be enough to advise a counsel where not to tread. To take that

warning from the district court and then continue to toe the fine line between proper and improper

argument shows a lack of respect for the district court’s instruction. With that said, this argument

appears to have steered just clear of crossing that line.2

       Even if the government’s closing statement was improper, the flagrancy factors favor against

a finding of prosecutorial misconduct. While these remarks may have led to inflaming the jury, they

were isolated remarks and the record does not demonstrate a pattern of such statements by the

government. Additionally, while the remarks by the government appear to have been planned as a

part of its closing statement, this factor does not outweigh, again, the enormous level of evidence

against Herron: there were five witnesses who testified to Herron’s confessing to them that he



       2
         The government relied heavily in its brief and at oral argument on Hutchison v. Bell, 303
F.3d 720 (6th Cir. 2002). In that case, this Court was asked to, on habeas review, examine
statements made by the government at the defendant’s trial. In Hutchison, we held that the
government’s statements did not rise to prosecutorial misconduct. These statements included stating
that “I urge you to look alone to truth and justice in this case and . . . put an end to this evil
partnership.” and other references to the defendant’s “evil ways”. Id. at 750-51. This case is easily
distinguishable from the case before us today. The statements in Hutchison were a brief mention
of “truth and justice” and then counsel moved on. We do not hold that mentioning those magic
words are cause for concern. What concerns this court is the repetition of those words as a theme
and, most importantly, the refusal to abandon that theme upon being warned by the district court.
No. 05-6061
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Page 13

committed the bank robberies, clothing worn by the robber and the bank bag were found in Herron’s

residence, the gun was found within the bank bag, and finally testimony of Herron’s escape and

subsequent capture from the federal officers who apprehended him. All of this evidence against

Herron favors against a finding of prosecutorial misconduct.

       For these reasons, we affirm the district court’s decision to not set aside the jury verdict.

                                                 III.

       For these reasons, we affirm the district court’s decisions in this case.
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Page 14

       RYAN, Circuit Judge, concurring.               I join my brother’s opinion in all respects except

for the discussion of the district court’s denial of Herron’s motion to sever. On that question, I am

satisfied that the district court did not abuse its discretion in denying the motion. Therefore, in my

view, there is no need to conduct a harmless error review.
