                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0612n.06
                             Filed: July 20, 2005

                                       Nos. 03-4129, 03-4130

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                  )
                                                           )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                 )        UNITED STATES DISTRICT
                                                           )        COURT FOR THE NORTHERN
v.                                                         )        DISTRICT OF OHIO
                                                           )
EDWARD RUDOLPH LEGETTE-BEY,                                )                           OPINION
                                                           )
       Defendant-Appellant.                                )


BEFORE:        COLE and SUTTON, Circuit Judges; and BARZILAY, Judge.*

       R. GUY COLE, JR., Circuit Judge. Edward Rudolph Legette-Bey was convicted of six

bank robberies and related firearms charges. Two co-conspirators, Jerry Swims and Eric Garrett,

testified that Legette-Bey was involved in all six of the robberies; Legette-Bey denies any

involvement. Legette-Bey claims that the prosecutor made improper statements during her closing

argument, expressing her personal belief in Swims’ and Garrett’s credibility. Because the statements

in the instant case were not so flagrant as to constitute a fundamental miscarriage of justice, because

we find that the time needed to prepare pre-trial sentencing reports requested by Legette-Bey is

“excludable” time for Speedy Trial Act purposes, and because Legette-Bey’s other arguments lack

merit, we AFFIRM his conviction and sentence.

                                                  I.



       *
         The Honorable Judith M. Barzilay, Judge of the United States Court of International Trade,
sitting by designation.
Nos. 03-4129, 03-4130
United States v. Legette-Bey

A. The May 21, 2002 Robbery of First Federal Bank of Lakewood, Fairview Park Branch

       On May 21, 2002, three masked and gloved men robbed the First Federal Bank of

Lakewood’s branch location in Fairview Park, Ohio. Two of the robbers hurdled the counter and

began taking money from teller drawers, while the third man held the bank manager at gunpoint.

One robber then asked the bank manager to open the vault. Because the robbers were “covered from

head to toe,” none of the bank tellers were able to give an accurate description of the robbers.

       After taking $64,913 from the teller drawers and the vault, the robbers left in what was

described by several tellers as a metallic Ford Contour with no license plate and a temporary tag in

the back window. An off-duty auxiliary police officer spotted the car and, having heard its

description over the police radio, began to follow it. Eventually, multiple police cars pursued the

suspects’ vehicle at a high rate of speed until the vehicle crashed into a house. The suspects exited

their vehicle and fled in different directions. After a brief search of the neighborhood, officers found

Legette-Bey in a garage, hiding beneath a table on a couch. Legette-Bey fit the general description

of the men who had fled from the car crash. When asked by police to explain his presence in the

garage, Legette-Bey replied that he was homeless and was just sleeping there. The officers arrested

Legette-Bey as a suspect in the bank robbery, though the shoes he was wearing at the time of his

arrest were later found not to match the shoes that any of the robbers were wearing in the bank’s

security videos.

       Meanwhile, two other men who matched the description of the suspects were arrested by

other officers in the area. A search of the suspects’ vehicle revealed the following items: a loaded

revolver, an Ohio temporary license tag, several latex gloves, three Cleveland Indians baseball caps,

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United States v. Legette-Bey

three hooded sweatshirts, a coat whose pockets contained a pair of glasses, a cell phone, a pager, and

a wallet. The wallet contained, among other items, Legette-Bey’s driver’s license. In addition, there

was a bag of dimes, a bag of quarters, and a bucket containing large amounts of dye-stained,

traceable cash in the back seat of the car.

       A search of the car’s registration showed that it belonged to April Zellner, a long-time friend

of Legette-Bey’s. Zellner later testified that Legette-Bey had offered to wash her car while she was

at work, Legette-Bey having previously borrowed the car on a number of occasions. Legette-Bey

was supposed to return the car by 3:00 p.m., but when he did not do so by 5:00, she called the police

and was informed that the car had been used in the First Federal Bank robbery.

       Eric Garrett, one of the other two men arrested that day, confessed to his role in the robbery,

and identified his co-robbers as Legette-Bey and Jerry Swims, who was the third man arrested.

Garrett said that the three men lived together, identified himself, Legette-Bey and Swims in various

bank surveillance photos, and claimed that Legette-Bey planned the robbery. Further, Garrett stated

that he had helped Swims and Legette-Bey plan and execute at least one other bank robbery, that

of Charter One Bank, on July 24, 2001. Garrett later pleaded guilty to the May 21, 2002 robbery

of the First Federal Bank of Lakewood, and to receipt of proceeds from the Charter One bank

robbery.

B. The July 24, 2001 Robbery of Charter One Bank, Fairview Park Branch

       Garrett testified that on July 23,2001, he, Swims, and Legette-Bey drove around the west

side of Cleveland looking for banks to rob. They selected a bank, but abandoned the plan after a

police car drove into the bank’s parking lot. The next day, July 24, Swims and Legette-Bey went

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United States v. Legette-Bey

back to the bank without Garrett. Garrett testified that Swims and Legette-Bey returned with dye-

stained money, which they asked Garrett to help clean. Garrett did so, and received $500-700 for

his efforts.

         Tellers at the Charter One Bank branch in Fairview Park, Ohio, testified that on that day, two

men wearing black nylon masks entered the bank and pointed guns at tellers and customers. One

of the two robbers then jumped over the counter and began taking money from the teller drawers.

The robber also demanded that the head teller open the vault, from which he took additional money.

The robber then jumped back over the counter and fled with his accomplice. The robbers took

$18,669, but none of the tellers could give a detailed description of the two men. However, a

customer of the bank had noticed two black men acting “suspicious” in a blue Mercury Sable in the

parking lot prior to the robbery, and had memorized the license plate of the vehicle. The license

plate was found to have been stolen from another car, but following the defendants’ arrest in 2002

for the First Federal robbery, a receipt for the purchase of a blue Mercury Sable was found in the

residence shared by all three defendants. The name of the purchaser on the receipt was Jehvon

Niles.

         After his arrest following the robbery of the First Federal Bank of Lakewood, Swims claimed

his name was Jehvon Niles, that he was from North Carolina, and that he met Garrett and Legette-

Bey while smoking crack earlier that week. Shortly thereafter, Swims and Legette-Bey were

indicted by a grand jury for their participation in the robberies of the First Federal and Charter One

banks. Swims subsequently entered into a plea agreement, admitting not only that he and Legette-




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United States v. Legette-Bey

Bey had committed the two robberies, but also that the two of them had committed at least four

previous robberies.

C. Prior Bank Robberies

       Pursuant to the plea agreement, Swims provided details of the four prior bank robberies.

These robberies were the September 13, 1999 robbery of First Federal of Lakewood (Westlake

branch); the December 19, 2000 robbery of First Federal of Lakewood (Fairview Park branch); the

December 14, 2001 robbery of Third Federal Savings and Loan (South Euclid branch); and the

June 1, 2000 robbery of Huntington National Bank (Lakewood branch). In all four robberies, two

heavily disguised men had entered the bank. One would point a gun at the customers and tellers in

the lobby while the other vaulted over the counter and told the tellers to unlock their cash drawers.

Swims stated that he was always the man in the lobby with the gun, and that the gun used was one

given to him by Legette-Bey before each robbery. The man behind the counter, whom Swims

identified as Legette-Bey, would take as much money as he could within a minute or two, and the

two men would then flee via a vehicle parked outside. Clothes matching those worn by the robbers

in at least one of these robberies were found in the defendants’ apartment. Further, a Ford F-150

pickup truck matching the description of one owned by Legette-Bey was used as the getaway vehicle

in another of the four robberies, and a blue Mercury Sable owned by Swims, under the alias Jehvon

Niles, was used in a third. Due to the disguises, no teller or customer was able to give a detailed

description of the robbers or identify the defendants as the robbers.

D. Trial




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United States v. Legette-Bey

       Pursuant to his plea agreement, Garrett was sentenced to approximately ten-and-a-half years’

imprisonment. Swims also entered into a plea agreement and was sentenced to approximately fifteen

years’ imprisonment. Legette-Bey proceeded to trial on six counts of armed bank robbery and

related firearm charges. Both Swims and Garrett testified at Legette-Bey’s trial, and both identified

Legette-Bey as a robber in all six bank robberies. After the district judge denied Legette-Bey’s

motion for acquittal, the jury found him guilty of all charges. Legette-Bey was sentenced to

approximately 154 years’ imprisonment. Legette-Bey timely appealed both his conviction and his

sentence.

                                                 II.

A. Prosecutorial Misconduct

1. Standard of Review

       Legette-Bey claims that the prosecuting attorney improperly vouched for the testimony of

various witnesses during her closing argument. Legette-Bey cites five statements that he claims

constituted improper vouching. Ordinarily, this Court reviews de novo claims that a prosecutor

improperly vouched for a witness’s veracity. United States v. Emuegbunam, 268 F.3d 377, 403-04

(6th Cir. 2001). However, because Legette-Bey’s attorney never objected to the statements at trial,

our review is for plain error. See United States v. Collins, 78 F.3d 1021, 1039 (6th Cir. 1996). To

establish plain error on a claim for prosecutorial misconduct, the defendant must show that the

comments made by the prosecutor were: (1) improper; and (2) so flagrant that when viewed in

context, they would “undermine the fundamental fairness of the trial and contribute to a miscarriage

of justice.” United States v. Young, 470 U.S. 1, 16 (1985); United States v. Beverly, 369 F.3d 516,

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United States v. Legette-Bey

543 (6th Cir. 2004). In considering whether the prosecutor’s statements were flagrant, thereby

rendering the trial fundamentally unfair, this Court evaluates four factors: “1) whether the conduct

and remarks of the prosecutor tended to mislead the jury or prejudice the defendant; 2) whether the

conduct or remarks were isolated or extensive; 3) whether the remarks were deliberately or

accidentally made; and 4) whether the evidence against the defendant was strong.” United States

v. Modena, 302 F.3d 626, 635 (6th Cir. 2002) (citing United States v. Carter, 236 F.3d 777, 783 (6th

Cir. 2001)); see also United States v. Monus, 128 F.3d 376, 394 (6th Cir. 1997).

2. Analysis

a. Were the Statements Improper?

       Examining first whether the prosecutor’s conduct was improper, we have held that

“[i]mproper vouching occurs when a prosecutor supports the credibility of a witness by indicating

a personal belief in the witness’s credibility thereby placing the prestige of the office of the United

States Attorney behind that witness. Improper vouching involves either blunt comments or

comments that imply that the prosecutor has special knowledge of facts not in front of the jury.”

United States v. Trujillo, 376 F.3d 593, 607-08 (6th Cir. 2004) (citations omitted).        However,

neither rhetorical questions nor florid arguments that do not effectively place the imprimatur of the

United States Attorney upon the testimony at issue constitute improper vouching. United States v.

Green, 305 F.3d 422, 430 (6th Cir. 2002). Nor are descriptions of the requirements of a defendant’s

plea agreement, or other recapitulations of both the evidence previously presented and what the

prosecutor hoped to prove via such evidence. See United States v. Francis, 170 F.3d 546, 550 (6th

Cir. 1999). Rather, “[t]he threshold determination should be whether counsel’s comments can be

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United States v. Legette-Bey

reasonably construed to be based on personal belief.” United States v. Hart, 640 F.2d 856, 859 (6th

Cir. 1981); see also United States v. Bess, 593 F.2d 749, 754 (6th Cir. 1979) (“[T]he personal

opinion of counsel has no place at trial.”); MODEL RULES OF PROF’L CONDUCT R. 3.4(e) (2003);

ABA STANDARDS FOR CRIMINAL JUSTICE No. 5.8 (“It is unprofessional conduct for the prosecutor

to express his personal belief or opinion as to the truth or falsity of any testimony or evidence . . .

.”). If any statements are determined to be improper, we must consider them in the context of the

entire trial. See Francis, 170 F.3d at 552-53 (requiring examination of the combination of all

improper statements in light of the entire trial).

       As for the first statement, after addressing the evidence that corroborated Garrett’s testimony,

the prosecutor stated:

       [W]hen you are considering the evidence, consider the evidence of May 21st. [sic]
       You don’t need Eric [Garrett] and Jerry [Swims]. You don’t need to think about
       those criminals and the baggage they might have to decide what happened on May
       21st, 2001.[sic] But when you consider the situation Eric Garrett was in, and what
       he told Special Agent Rhoads, then you know that his information was reliable. He
       knew a dye pack had gone off because he helped clean the money. He implicated
       himself in taking the money, and he said that he had personal knowledge that Jerry
       Swims and Edward Legette-Bey had, in fact, committed that offense.

J.A. 921-22. Legette-Bey complains that the statement “you know that his information was reliable”

constituted improper vouching. However, this statement, in context, would not “plac[e] the prestige

of the office of the United States Attorney behind that witness.” Trujillo, 376 F.3d at 607. Rather,

the prosecutor was merely recapitulating the evidence that corroborated Garrett’s testimony, and

explaining that such evidence would back up the statements Garrett made. See, e.g., United States

v. Collins, 78 F.3d 1021, 1039-40 (6th Cir. 1996) (allowing commentary on reasonable inferences



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United States v. Legette-Bey

that can be deduced from evidence adduced at trial); United States v. Veal, 23 F.3d 985, 989 (6th

Cir. 1994). The prosecutor merely set forth reasons why a juror could find the witness credible in

light of specific evidence, an argument that is surely permissible where the two witnesses’

credibility is central to the case. Accordingly, this statement does not constitute improper vouching.

       Legette-Bey next complains about the prosecutor’s statements regarding the truthfulness of

Swims’ testimony. Swims, of course, admitted that his initial statement to the police was false, but

testified at trial that his testimony was truthful as required by his plea agreement. During the closing

argument, the prosecutor stated:

               Jerry Swims lied to the Fairview police on May the 21st, 2002. And when
       he stood on that witness stand and told you about lying, I think everyone here agreed,
       okay, he did lie to the Fairview police. And when he was asked those questions,
       “didn’t you tell Patrolmen Shepard this or that,” and he said “I don’t remember,” and
       sometimes he said “Well, I think that policeman might have been putting words in
       my mouth,” and his bottom line to that was, “I don’t remember saying that, so if he
       wrote that down and I don’t remember saying it, maybe he did put those words in my
       mouth.”

               But I don’t think there was anyone in the courtroom that day that didn’t
       believe that he had told Officer Shepard those very things, the things Shepard had
       written down in his report and the things that Jerry Swims was asked.

               And I also don’t think there’s anyone in the courtroom who didn’t realize that
       it would be hard to remember all the lies that you told to Paul Shepard on that first
       day. Every single thing he said was a lie. And it wasn’t – and he had no way of
       recalling the lies that he had told. And as you heard, some of them he did, and some
       of them he didn’t. But I think we are all assured that when Officer Shepard got on
       the stand, that those were, in fact, the lies that Jerry Swims had told Paul Shepard.

       Despite the government’s contention that Officer Shepard’s testimony corroborated Swims’s

testimony that Swims had lied to Shepard upon his original arrest, there can be little question that

the prosecutor’s statements went further than merely recapitulating the evidence and arguing that

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United States v. Legette-Bey

the evidence showed that Swims had lied to Shepard. Rather, the prosecutor’s repeated insistence

that she thought everyone in the courtroom was assured of the truthfulness of both Shepard and

Swims’s testimony could easily be interpreted to impart to the jury her personal belief as to the

credibility of these witnesses’ testimony. See Hart, 640 F.2d at 859 (“[t]he threshold determination

should be whether counsel’s comments can be reasonably construed to be based on personal

belief.”). As we have noted before, statements that suggest a prosecutor’s belief, even if only

preceded by “I submit” or “I think,” “can be reasonably construed to be based on personal belief.”

United States v. Krebs, 788 F.2d 1166, 1176-77 (6th Cir. 1986); see also United States v. Manthey,

92 Fed. Appx. 291, 296 (6th Cir. 2004) (unpublished opinion) (finding the statement “No question

about it, he’s telling the truth” to be “unquestionably improper”). The prosecutor’s use of “I think,”

along with her use of the phrase “we are all assured,” as opposed to, for example, “you should be

assured,” could thus easily be construed to have been based on the prosecutor’s personal beliefs.

       Further, the fact that the witnesses’ credibility was central to the case does not mitigate any

impropriety. See, e.g., Modena, 302 F.3d at 634 (finding vouching for key co-conspirator to be

improper); Francis, 170 F.3d at 550-51 (finding improper a prosecutor’s opening argument that a

key witness would be certain to tell the truth because the witness’s sentence would depend on

whether or not the prosecutor personally believed the witness); United States v. Carroll, 26 F.3d

1380 (6th Cir. 1994); see also United States v. Lewis, 69 Fed. Appx. 748, 756 (6th Cir. 2003)

(Moore, J., concurring). Where credibility is a significant issue, a jury may place more weight on

the beliefs or opinions of federal prosecutors, whom jurors may believe have special expertise or

experience in evaluating witness testimony and credibility. See Cargle v. Mullin, 317 F.3d 1196,

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United States v. Legette-Bey

1218 (10th Cir. 2003); Bess, 593 F.2d at 755; United States v. Splain, 545 F.2d 1131, 1134-35 (8th

Cir. 1976); see also Berger v. United States, 295 U.S. 78, 88-89 (1935) (holding prosecutors to a

higher standard than other attorneys with regard to improper commentary at trial). Accordingly,

statements expressing the prosecutor’s belief that the entire courtroom was assured of the veracity

of Swims’ and Shepard’s testimony, were improper.

       Legette-Bey next complains about the prosecutor’s reference to Swims’s statements to an

FBI investigator following his plea agreement. The prosecutor, having just referred to the terms of

Swims’s plea agreement that required him to cooperate and testify truthfully, noted that Swims could

not have known what the agent knew about the bank robberies, and thus would have jeopardized his

plea agreement had he lied to the agent, since he would not be able to know if she knew he was lying

or not. The prosecutor then stated:

       I submit to you, ladies and gentlemen, that the way he got around this problem might
       have been to tell [the investigator] the truth, because if he told the truth, then it
       couldn’t come back and bite him. And when he told the truth, he necessarily told on
       the other robber. . . .

       Because if he got caught, if he got caught trying to outsmart Agent Rhoads and his
       information was not truthful, then I think he would have been way worse off than if
       he told the truth.

       It has long been well-settled law that a prosecutor, in closing argument, may refer to the

terms of a plea agreement that require a witness to testify truthfully. Francis, 170 F.3d at 550.

Further, in the instant case, the terms of the plea agreement were in the record, as was the fact that

Swims likely would face significant additional imprisonment if he did not testify truthfully.

Accordingly, the prosecutor was merely highlighting the fact, already presented to the jury by



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United States v. Legette-Bey

counsel for the defendant during his cross-examination of Swims, that Swims had significant

incentives to testify truthfully. The mere addition of “I submit” does not render a statement

automatically improper, since such a statement is not the equivalent of expressing a personal

opinion. See United States v. Stulga, 584 F.2d 142, 147 (6th Cir. 1978). With regard to this

particular statement, then, the prosecutor did not impart her own imprimatur or that of the

government to Swims’s testimony; rather, she merely reminded the jury of the terms of Swims’s

agreement and of the fact that he had significant incentives to testify truthfully. Thus, this statement

was not improper.

        Legette-Bey also complains about the prosecutor’s statement in rebuttal that “[t]here was

testimony here today, and I submit to you absolutely true, that Jerry Swims had cut his forehead.”

This statement was important to the prosecution because the passenger in the Ford Contour was

slightly injured when he had hit his head on the windshield, whereas the driver had been protected

by an airbag, and because the prosecution’s theory was that Legette-Bey had been driving the

Contour when it crashed. However, since Legette-Bey argued he was never in the car at all, he

never disputed that Swims’s forehead had been injured. Legette-Bey’s defense theory was that he

had lent the car to the robbers and accidentally forgotten his coat, with his wallet and other

belongings, in the back seat of the car, but that he had had nothing to do with any bank robbery; and

that Garrett and Swims, who were good friends, were each implicating Legette-Bey in order to

shorten their own sentences. However, even if such a statement were improper, it could not have

prejudiced the defendant’s case, because Legette-Bey did not contest the fact of Swims’s injury.

Thus, regardless of whether the statement constitutes improper vouching, it could not have

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“undermine[d] the fundamental fairness of the trial and contribute[d] to a miscarriage of justice.”

Young, 470 U.S. at 14-15.

       Finally, Legette-Bey complains about one of the prosecutor’s final statements during her

argument in rebuttal:

               You could tell on the stand, I believe, that Eric [Garrett] was trying his best
       every time a question was asked to think about what he knew and to tell the truth.
       He even talked about how he would refer to Edward Legette-Legette-Bey as the Mo.

              He tried as best he could, and I submit to you that what he testified to on the
       stand was absolutely true and was verified by the fact that when he was picked up
       on May 21st, 2002, he told about his involvement in the robbery and about Edward
       Legette-Legette-Bey’s involvement in that robbery and in the prior robbery on July
       24th, 2002.

This statement could easily be interpreted as an attempt by the prosecutor to claim both that she

could tell that Garrett was trying his best to testify truthfully, and also that she believed his

testimony. It was thus improper. See, e.g., Modena, 302 F.3d at 635.

b. Were the Statements Flagrant?

       Having determined that two of the prosecutor’s statements were improper, we next turn to

whether the statements were “exceptionally flagrant,” undermining the fundamental fairness of the

trial and resulting in a miscarriage of justice. Carter, 236 F.3d at 783; see also Carroll, 26 F.3d at

1385 n.6. The first of the four Carter factors requires us to determine whether the two statements

tended to mislead the jury as to the evidence. The statements could have prejudiced the defendant,

both by suggesting to the jury that Swims’s initial statements to the police were lies, and thus that

his later statements and testimony at trial were true; and by suggesting, on rebuttal, that the

prosecutor believed that Garrett’s testimony — the main corroborating evidence for Swims’s

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United States v. Legette-Bey

testimony — was true. See, e.g., Modena, 302 F.3d at 635. The cases against Legette-Bey, at least

with regard to the four prior robberies and the July 24, 2001 robbery of the Charter One Bank, were

based largely on Garrett’s and Swims’s testimony. Their credibility was thus the central issue in the

trial. Consequently, the prosecutor’s vouching for each of these two witnesses in the closing

argument, especially with regard to her comments regarding Garrett on rebuttal (“You could tell on

the stand, I believe, that Eric [Garrett] was trying his best every time a question was asked to think

about what he knew and to tell the truth.” and “He tried as best he could, and I submit to you that

what he testified to on the stand was absolutely true . . . .”), may have bolstered the jury’s belief in

the testimony provided by Swims and Garrett. See, e.g., United States v. Dandy, 998 F.2d 1344,

1353 (6th Cir. 1993) (finding no reversible error, but also stating the statements at issue were “not

as egregious as [they] might have been had the prosecutor used the phrase ‘I believe’ that [a key trial

witness] is honest.”). Accordingly, this first prong weighs in Legette-Bey’s favor, though not

strongly, as the statements were not in any way misleading, nor has Legette-Bey presented any

convincing evidence of prejudice.

        Second, the statements were isolated, in that one occurred in the prosecution’s closing

argument, and the other on rebuttal, and each related to a different witness. Further, neither occurred

in proximity to any other impermissible statement.          As a result, this factor weighs in the

government’s favor.

        Third, there is no evidence that the remarks were deliberately made; though the prosecutor

repeatedly used “I believe” and “I think,” the statements were not part of a larger pattern of placing

the prosecutor’s beliefs before the jury, nor has Legette-Bey presented any evidence or other

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indication that the statements were willful, deliberate attempts to circumvent the rules of trial

practice. Further, the statements, while improper, do not by themselves suggest deliberate or

malicious intent. Accordingly, this factor also weighs in the government’s favor.

       Fourth, the evidence against the defendant was strong in some areas and weak in others. As

for the May 21, 2002 First Federal robbery, there was significant evidence linking Legette-Bey to

the crime beyond the testimony of Swims and Garrett, including the car, the wallet, and the fact that

Legette-Bey was found not far from the wrecked Ford vehicle. While the jury was free to weigh this

evidence in any manner it saw fit, the evidence certainly was sufficient to support a conviction even

without the testimony of the two co-conspirators. Thus, this prong weighs strongly in favor of the

government with respect to the last robbery.

       However, with regard to the other robberies, Legette-Bey’s defense theory was that Swims

and Garrett robbed the banks, and that Swims was lying about the robberies in order to protect his

friend Garrett. Absent Swims and Garrett’s testimony, Legette-Bey argued that the government had

little evidence linking him to five of the robberies. That evidence effectively consisted of the fact

that a Ford F-150 pickup truck of the type Legette-Bey owned was used to flee from one robbery

and the fact that he owned clothes that matched those in a photograph of the robber in another one

of the robberies. Accordingly, had the jury not believed Swims and Garrett, for whose testimony

the prosecutor had improperly vouched, there was little evidence to support a conviction beyond a

reasonable doubt on each of these counts. Thus, with regard to the five prior robberies, the fourth

prong weighs in Legette-Bey’s favor.




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       The purpose of the four-factor Carter test is simply to determine whether a prosecutor’s

conduct is so flagrant “such as to undermine the fundamental fairness of the trial and contribute to

a miscarriage of justice.” United States v. Young, 470 U.S. 1, 14-15 (1985). On balance, we cannot

say Legette-Bey has met his burden of showing that the improper vouching by the prosecutor was

so flagrant as to cause his trial to be fundamentally unfair. Though the central issue of the trial was

Swims’s and Garrett’s credibility, there was some physical evidence that tied Legette-Bey to the

prior robberies, and the jury had plenty of opportunities to consider both sides’ theories of the case

and to evaluate the credibility of all the witnesses before them. Under a plain error analysis, we

conclude that these two statements, taken in the context of the entire trial and the totality of the

evidence, did not result in Legette-Bey receiving a fundamentally unfair trial.

       Although we conclude that the prosecutor’s improper vouching does not require a new trial,

we note the following admonition expressed by the Supreme Court:

       The United States Attorney is the representative not of an ordinary party to a
       controversy, but of a sovereignty whose obligation to govern impartially is as
       compelling as its obligation to govern at all; and whose interest, therefore, in a
       criminal prosecution is not that it shall win a case, but that justice shall be done. As
       such, he is in a peculiar and very definite sense the servant of the law, the twofold
       aim of which is that guilt shall not escape or innocence suffer. He may prosecute
       with earnestness and vigor-- indeed, he should do so. But, while he may strike hard
       blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from
       improper methods calculated to produce a wrongful conviction as it is to use every
       legitimate means to bring about a just one.

Berger, 295 U.S. at 88.

       Here, Legette-Bey did not object to the improper statements, and has not met his burden of

proving plain error below. Though we cannot otherwise conclude that a fundamental miscarriage



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Nos. 03-4129, 03-4130
United States v. Legette-Bey

of justice occurred, the prosecutor crossed the line between earnest and vigorous prosecution and

clearly improper argument. In this instance, however, that unfortunate conduct does not mandate

a new trial.

B. Sufficiency and Weight of the Evidence

        Legette-Bey next claims that the evidence did not support a guilty verdict and that the verdict

was against the weight of the evidence. Since Legette-Bey moved for acquittal prior to submission

of the case to the jury, we review de novo “whether, after viewing 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) (emphasis in

original). Here, Legette-Bey claims that the evidence was insufficient to establish beyond a

reasonable doubt his identity as one of the robbers. However, we have long held that both

circumstantial evidence and the mere testimony of co-conspirators, can each be sufficient to support

a guilty verdict. Perez-Gonzalez, 307 F.3d 443, 445-46 (6th Cir. 2002) (circumstantial evidence);

United States v. Copeland, 321 F.3d 582, 600 (6th Cir. 2003) (co-conspirators). As a result, Legette-

Bey’s argument that there was insufficient evidence to support a conviction on any of the counts

against him also must fail.

        Further, it is true that a trial judge may “sit as a thirteenth juror” and consider the evidence

to ensure that there is no miscarriage of justice. See United States v. Ashworth, 836 F.2d 260, 266

(6th Cir. 1988). However, Legette-Bey’s attorney never requested a new trial or a judgment

notwithstanding the verdict on the ground that the jury verdict was “against the weight of the




                                                 - 17 -
Nos. 03-4129, 03-4130
United States v. Legette-Bey

evidence.” Accordingly, because Legette-Bey did not pursue such a motion at trial, he cannot raise

this argument now. See, e.g., Dixon v. Montgomery Ward, 783 F.2d 55, 55 (6th Cir. 1986).

D. Speedy Trial Claims

1. Pre-Indictment Delays

         Legette-Bey next argues that his Speedy Trial Act rights were violated when he was held in

state custody for several months before the filing of federal charges against him. On appeal of

Speedy Trial Act-based claims, this Court reviews the district court’s findings of fact for clear error

and its legal determinations de novo. United States v. O’Dell, 154 F.3d 358, 360 (6th Cir. 1998).

Under the Speedy Trial Act, a defendant must be indicted within thirty days of his federal arrest or

the service of federal charges. 18 U.S.C. § 3161(b); see also United States v. Murphy, 241 F.3d 447,

454 (6th Cir. 2001). Here, the defendant was arrested by state officials on May 21, 2002, following

his discovery in the garage, and placed in state prison. He was not federally indicted until August

28, 2002, a date more than thirty days after his arrest. Thus, the question before us is whether time

spent in state custody counts as time after a federal arrest for the purposes of the Speedy Trial Act.

         Time spent in state custody on related charges does not count as a “federal arrest,” even if

state and federal officials are cooperating on a defendant’s case or related cases. United States v.

Blackmon, 874 F.2d 378, 381 (6th Cir. 1989). However, we have set forth an exception from this

rule when state and federal officials have a “working arrangement” with the state designed to allow

facilitation of interrogation of federal suspects without the triggering of various federal rights,

including the right to a speedy indictment. United States v. Mayes, 552 F.2d 729, 734 (6th Cir.

1977).

                                                - 18 -
Nos. 03-4129, 03-4130
United States v. Legette-Bey

       Here, Legette-Bey was held in a state corrections facility because he was arrested by state

officials on state charges, for which he was indicted in state court. The state charges were dismissed

on November 1, 2002, long after Legette-Bey had been charged federally. No federal charges were

formally filed prior to the return of the indictment on August 28, 2002. The fact that Legette-Bey

was federally indicted after he was arrested on state charges, or that federal and state officials

cooperated in his case, does not evidence any sort of a “working arrangement” between state and

federal officials that deprived Legette-Bey of his speedy trial rights. Rather, the evidence simply

shows that Legette-Bey was arrested on state charges in May of 2002. The fact that these charges

were later dropped in favor of a federal indictment does not implicate Legette-Bey’s federal speedy

trial rights, which only accrued on August 28, 2002, at the time of the return of his federal

indictment. Thus, Legette-Bey’s pre-trial Speedy Trial Act rights were not violated.

2. Post-Indictment Delays

       Under the Speedy Trial Act, a defendant’s trial must begin within seventy days of his first

appearance before a judicial officer in federal court. 18 U.S.C. § 3161(c). Legette-Bey was

arraigned on September 17, 2002, the date that the government and Legette-Bey agree triggered the

counting of the seventy days. Further, both parties agree that trial began on May 28, 2003, 270 days

later. Accordingly, both parties agree that Legette-Bey has established a prima facie case that the

Speedy Trial Act was violated. See United States v. Jenkins, 92 F.3d 430, 438 (6th Cir. 1996)

(noting that a defendant must merely “produc[e] a calendar and show[] that more than seventy days

have passed . . . .”). The burden then shifts to the government to prove by a preponderance of the

evidence that a sufficient number of days were excludable from counting under the Act such that

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Nos. 03-4129, 03-4130
United States v. Legette-Bey

non-excluded days do not total more than 70 days. Id. Further, a judge’s decision to grant an “ends-

of-justice continuance” under the Act is reviewed for abuse of discretion.

       Under the Act, various periods are excludable from the seventy-day period, including time

spent waiting for information necessary to decide pre-trial motions, time spent with motions under

advisement, and, under 18 U.S.C. 3161(h)(8), any “other proceedings” for which the ‘ends of

justice’ outweigh the interests of the public and the defendant in a speedy trial.” United States v.

Monger, 879 F.2d 218, 220 (6th Cir. 1989). In addition, this Court has recognized that excludable

time attributable to one co-defendant is excludable with regard to all other co-defendants, even if

the matter is not in any way related to another co-defendant. United States v. Snelling, 961 F.2d 93,

95 (6th Cir. 1991).

       The district court granted ends-of-justice continuances in the instant case to allow each of

the three defendants named in the initial indictment — that is, Swims, Garrett, and Legette-Bey —

to have a pre-trial pre-sentence report prepared, and also for plea negotiations. In Legette-Bey’s

reply brief, he effectively concedes that these periods of time are the only contested ones concerning

his post-indictment Speedy Trial Act claim. If such continuances had not been granted, Legette-

Bey would have had to have been tried by November 30, 2002, seventy days after his September 17

arraignment. Aside from the continuances for the preparation of a pre-trial sentence report, no other

significant activity occurred in the case until at least January 6, 2003, when a pretrial conference for

Swims and Garrett was held. Accordingly, since Legette-Bey was clearly not tried by November

30, 2002, if preparation of pre-trial sentence reports is not a valid reason for granting a continuance

under the Speedy Trial Act, the government violated the Act.

                                                 - 20 -
Nos. 03-4129, 03-4130
United States v. Legette-Bey

       We have previously held that time for plea negotiations is excludable under the Act. See,

e.g., United States v. Dunbar, 357 F.3d 582, 588 (6th Cir. 2004), cert. granted and judgment vacated

on other grounds, 125 S. Ct. 1029 (2005); United States v. Bowers, 834 F.2d 607, 609-10 (6th Cir.

1987); see also, e.g., United States v. Cano-Silva, --- F.3d ----, 2005 WL 698983 (10th Cir. Mar. 28,

2005) (“Periods of time devoted to negotiating plea agreements are not explicitly excluded from

calculation, but such delays may be excluded if the district court determines that the ends of justice

served by granting a continuance and excluding the time from calculation outweigh the best interest

of the public and the defendant in a speedy trial.” (citing 18 U.S.C. 3161(h)(8))). As the government

notes, there do not appear to be any cases directly holding that time needed for creation of a pre-

sentence report to be used in pre-trial plea negotiations can be excluded on ends-of-justice grounds.

However, one can hardly fault a defendant for requesting extra time in order to be informed about

the sentence he may face if he does not reach a plea agreement. Pre-trial sentencing reports serve

to make guilty pleas more informed and can assist in encouraging pleas, thus advancing efficiency

in the judicial process, especially when such reports are requested by defendants. Thus, if time for

plea negotiations is to be excluded, and if time required for a court to gather information needed to

decide a defendant’s motion is excludable, Jenkins, 92 F.3d at 438, the time needed for creation of

a pre-sentence report at a defendant’s request, as here, should be excludable. At the very least,

holding such time excludable cannot be said to be so unreasonable that it was beyond the district

judge’s discretion. We therefore conclude that there as no violation of the Speedy Trial Act.

E. Sentencing Claim




                                                - 21 -
Nos. 03-4129, 03-4130
United States v. Legette-Bey

        Finally, Legette-Bey claims that his sentence is unconstitutional under the Eighth

Amendment because it is “grossly disproportionate” both to the crimes he committed and to the

sentence received by Swims. When reviewing sentencing decisions, this Court reviews a district

court’s legal conclusions de novo. See United States v. Hazelwood, 398 F.3d 792, 795 (6th Cir.

2005). However, since Legette-Bey failed to raise this claim below, we review the sentence for

plain error, determining if there was “(1) error, (2) that is ‘plain,’ [] (3) that ‘affects substantial

rights,’ . . . [and] (4) [if] the error ‘seriously affects the fairness, integrity, or public reputation of

judicial proceedings.’” United States v. Oliver, 397 F.3d 369, 378 (6th Cir. 2005) (citing Johnson

v. United States, 520 U.S. 461, 466 (1997)).

        In reviewing whether a sentence violates the Eighth Amendment, a defendant must show

that the sentence is “grossly disproportionate” to the crime committed. Coleman v. DeWitt, 282 F.3d

908, 915 (6th Cir. 2002) (citing Harmelin v. Michigan, 501 U.S. 957, 1001-05 (1991) (Kennedy, J.,

concurring)). In order to determine whether a sentence is grossly disproportionate, we examine the

gravity of the offense, including whether the crime was violent and the seriousness of the offense.

See United States v. Hill, 30 F.3d 48, 50-51 (6th Cir. 1994). Further, statutorily required concurrent

sentences on multiple counts are unlikely to be seen as disproportionate merely because of the

concurrent-sentencing requirement; if each sentence on its own is constitutional, the resulting

concurrent sentences are likely, in toto, to be constitutional. United States v. Beverly, 369 F.3d 516,

537 (6th Cir. 2004) (“Mandating consecutive sentences is not an unreasonable method of attempting

to deter a criminal, who has already committed several offenses using a firearm, from doing so

again.”).       In the instant case, the defendant was convicted of six counts of armed bank robbery,

                                                  - 22 -
Nos. 03-4129, 03-4130
United States v. Legette-Bey

six counts of using a firearm during a crime of violence, and one count of being a felon in possession

of a firearm. Under 18 U.S.C. § 924(c), the sentences for the firearms violations are required to be

served consecutive to the sentences for the underlying offenses. Here, because five of the six

firearm violations were “second or subsequent” offenses, each resulted in a mandatory minimum

consecutive sentence of 300 months, or 25 years each. See, e.g, U.S.S.G. 2K2.4 (2003). This, in

addition to sentences of 84 months on the first firearm violation and 262 months total for the six

bank robberies, led to the district court imposing a sentence totalling 1,846 months, or approximately

154 years.

       Legette-Bey’s sentence was not grossly disproportionate to the crimes for which he was

convicted. With regard to the firearm violations, the judge sentenced Legette-Bey to the statutory

minimum. See 18 U.S.C. §§ 924(c)(1)(A)(ii); 924(c)(1)(C)(i); Beverly, 369 F.3d at 536 (considering

mandatory consecutive sentences for firearm use in bank robberies, and determining that sentences

similar to those received by Legette-Bey were not unconstitutional). As for the underlying bank

robbery charges, if one allocates the 262-month sentence for each armed robbery of a federally

insured bank, then Legette-Bey received about three-and-a-half years for each such crime. This

sentence is hardly “grossly disproportionate” to the crimes of which Legette-Bey was convicted,

each of which included threatening harm to many bank employees and customers. Therefore,

Legette-Bey’s sentences does not violate the Eighth Amendment by being grossly disproportionate

to the crimes of which he was convicted.

       Legette-Bey also argues that his sentence was “grossly disproportionate” to that received by

Swims, who pleaded guilty. However, we have held that sentencing disparities between co-

                                                - 23 -
Nos. 03-4129, 03-4130
United States v. Legette-Bey

defendants charged with similar crimes does not in and of itself suggest an Eighth Amendment

violation. See, e.g., Terry v. Trippett, No. 94-2044, 1995 WL 469424 (6th Cir. Aug. 7, 1995). Here,

Swims entered into a plea agreement, avoiding the need for the government to try him on the charges

against him. Legette-Bey, on the other hand, elected to go to trial. Therefore, the length of Legette-

Bey’s sentence was in no way unconstitutionally disproportionate to his crimes.

                                                 III.



       For the foregoing reasons, we AFFIRM Legette-Bey’s conviction and sentence.




                                                - 24 -
