Appeal from the United States District Court for the District of Hawaii. D.C. No. CR-91-01613-01-DA. D.C. No. CR-91-01613-02-DA. David A. Ezra, District Judge, Presiding.
Before: Alfred T. Goodwin, Thomas Tang, and John T. Noonan, Jr., Circuit Judges. Opinion by Judge Goodwin.
Stephen Baker and Philip L. Caban appeal their convictions and sentences under the Sentencing Guidelines for bank robbery in violation of 18 U.S.C. § 2113(a). We reverse the convictions and remand for a new trial because appellants' due process rights were violated when the government impermissibly commented in closing rebuttal argument on their post- Miranda silence.*fn1
On October 2, 1991, two men wearing nylon stockings over their heads entered the Kaneohe branch of Territorial Savings and Loan. One of the men held what appeared to be a handgun, and instructed the tellers to open their cash drawers. The other man then jumped over the teller counter and took money out of two of the drawers. The two men left the building with over five thousand dollars in cash.
Baker and Caban were arrested a few days later and charged with one count of bank robbery, in violation of 18 U.S.C. § 2113(a). At the time of their arrest, Caban was in possession of eight-hundred and fifty dollars in cash, and Baker one-hundred and thirty dollars. In May 1992, the defendants were tried and convicted by a jury in the district court.
The government's case largely consisted of circumstantial evidence. The bank tellers were not able to identify either Baker or Caban, and the tellers' descriptions of the bank robbers were not consistent.*fn2 The government did present a good deal of evidence, however, supporting the defendant's guilt. The tellers identified a replica 9mm handgun found in the passenger compartment of Caban's car at the time of his arrest as appearing to be the one used by the bank robbers, and a blue and white shirt found in Caban's bedroom as looking like the shirt worn by one of the robbers.
Further, the government introduced the testimony of Emily Lopez. Lopez knew both Baker and Caban, and lived in the same rooming house as Baker. She testified that only about an hour after the robbery occurred, Baker and Caban entered her room and shut the door and windows. The two men then threw a bundle of clothes onto the floor. Lopez testified that a large amount of cash, in all denominations, was wrapped up inside the clothing, and that some of the money was banded together in the type of wrappers she has seen used by banks. Lopez watched Caban and Baker divide up the money. Caban then told Baker to give Lopez all of the one dollar bills, amounting to approximately three or four hundred dollars. Baker also gave Lopez two one hundred dollar bills to give the landlord for Baker's rent. He then instructed Lopez to throw away the bundle of clothes, which she did. Lopez recalls that one of the items of clothing was a shirt with a blue collar.
The government also introduced the testimony of Steven Licari, a friend of Caban. Caban had been staying in a room at Licari's home prior to his arrest. Licari testified that just before the FBI came searching for Caban, Caban had showed him a gold or jade ring Caban had recently purchased.
The government additionally introduced testimony of a number of FBI special agents. Agents Harmon and Gleichenhaus testified about a statement Baker made after his arrest, while he was in an FBI automobile. The agents testified that Baker spontaneously stated, "How did you guys find out?" Further, Agent Ferreira testified about a series of spontaneous statements Baker made at the FBI office. Baker asked Ferreira what the sentence for bank robbery was, and whether his past criminal history would be considered by the Judge at sentencing.*fn3 Finally, Agent Kent testified that while he was escorting the defendants to the courtroom for their first appearance in the matter, Baker said to Caban, "Gee, Why did I have to take you with me?," to which Caban replied, "I don't know."
Baker exercised his Fifth Amendment right not to testify. Caban, however, did testify. Caban claimed that he and Baker were together at the time of the bank robbery, but that the two were gambling. Caban stated that he and Baker won the money Lopez testified about at this gambling game.
The jury found both defendants guilty. The district court sentenced Baker to serve 225 months in prison, and Caban 144 months followed by 3 years of supervised release. Caban's sentence included a two-point increase for obstruction of Justice after the district court determined that Caban had testified falsely, and an upward departure of two criminal history levels after the district court determined ...