United States of America v. James D. Marks (98-6044), Maurice Navarro Brooks (98-6048), Robert Lee Aguon (98-6216)

16 United States v.
Marks, et al.
Nos. 98-6044/6048/6216
III. CONCLUSION
The judgment of the district court is AFFIRMED.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0124P (6th Cir.)
File Name: 00a0124p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
J AMES D. M ARKS (98-6044),
M AURICE NAVARRO BROOKS
(98-6048), R OBERT LEE
AGUON (98-6216),
Defendants-Appellants.
;>

1
Nos. 98-6044/
6048/6216
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 97-00024—Thomas B. Russell, District Judge.
Argued: January 25, 2000
Decided and Filed: April 6, 2000
Before: NELSON, SUHRHEINRICH, and GILMAN,
Circuit Judges.
_________________
COUNSEL
ARGUED: Armand I. Judah, Louisville, Kentucky, Michael
L. Boylan, Louisville, Kentucky, Vincent F. Heuser, Jr.,
Louisville, Kentucky, for Appellants. Terry M. Cushing,

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2 United States v.
Marks, et al.
Nos. 98-6044/6048/6216
ASSISTANT UNITED STATES ATTORNEY, Louisville,
Kentucky, for Appellee. ON BRIEF: Armand I. Judah,
Louisville, Kentucky, Michael L. Boylan, Louisville,
Kentucky, Vincent F. Heuser, Jr., Louisville, Kentucky, for
Appellants. Terry M. Cushing, David J. Hale, ASSISTANT
UNITED STATES ATTORNEYS, Louisville, Kentucky, for
Appellee.
_________________
OPINION
_________________
SUHRHEINRICH, Circuit Judge. Defendants Maurice
Navarro Brooks, James Marks, and Robert L. Aguon appeal
their jury convictions and sentences on multiple counts of
bank robbery, armed bank robbery, and carrying a firearm
during a crime of violence. Defendants raise seven issues.
I. BACKGROUND
Brooks committed nine armed bank robberies in and around
Louisville, Kentucky, from July through December 1996.
Nine people were charged with either participating directly in
the robberies or with assisting the principals at different
times. Marks allegedly participated in seven of the robberies
but was convicted of only six. Aguon participated in the last
two robberies.
Brooks, Marks, Aguon, and Bernard Williams committed
the ninth robbery on December 20, 1996. As they were
leaving the bank, a Louisville police officer drove into the
bank parking lot. The four robbers split into pairs. Brooks
and Williams fled in Williams’ car but were arrested after a
high speed chase. Immediately after Brooks’ arrest, he asked
a police officer how much time he would get and commented
that the officer did a “good job.”
Meanwhile, Marks and Aguon entered a nearby flower shop
where Marks called his stepmother for a ride and bought her
Nos. 98-6044/6048/6216 United States v.
Marks, et al.
15
proceedings, competency examinations, and other procedural
matters. See 18 U.S.C. § 3161(h).
Aguon raised the Speedy Trial Act issue on the morning of
trial and asked the court to dismiss the case against him,
which the court denied. After admitting that he filed motions
and requests for his own benefit that would have tolled the
Speedy Trial Act, Aguon simply asserts that “the delay in
bringing him to trial was a violation of the act . . . .”
(Aguon’s Brief at 18). Aguon does not specify which part of
the delay violated the Speedy Trial Act.
In this case, the district court made several Speedy Trial
findings: (1) after Brooks moved to continue the original
sentencing date, (2) after change in counsel for a codefendant,
(3) after the district court granted Defendants’ motions to
withdraw their pleas, and (4) after the district court severed
Aguon and Myles’ trial from Brooks and Marks’ trial. The
district court found that the case as to Aguon and Myles was
complex because of the withdrawal of the plea, the severance
order, and the Government’s difficulty in compelling the
testimony of Defendants who were already sentenced.
Defendants withdrew their guilty pleas on March 17, 1998,
which became the day of their indictment for Speedy Trial
Act purposes. See 18 U.S.C. § 3161(i); United States v.
Bond, 956 F.2d 628, 630 (6th Cir. 1992). Brooks and Marks
were tried on May 19, 1998, and Aguon’s trial was severed on
the same day. Aguon’s trial started July 6, 1998. However,
the district court first decided Aguon’s motion to suppress the
testimony of witnesses with plea agreements.
Most of the delay was caused by Defendants changing their
pleas and filing pretrial motions, all of which Aguon appears
to admit. As to the other delays, the district court made
appropriate findings to exclude the delays. Accordingly, the
district court did not err in denying Aguon’s motion to
dismiss under the Speedy Trial Act grounds.

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14 United States v.
Marks, et al.
Nos. 98-6044/6048/6216
To suppress evidence of a pretrial identification, a
defendant must first show that the procedure was
impermissibly suggestive. If a defendant shows this, then the
district court must evaluate the totality of the circumstances
to determine whether the identification was reliable. See
Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994); see
also United States v. Causey, 834 F.2d 1277, 1286 (6th Cir.
1987).
The district court reviewed the photographic array before
the trial and concluded that the photographic lineup was not
impermissibly suggestive. During the trial, the court required
the Government to voir dire the witness from the flower shop
outside the presence of the jury to establish a foundation for
her testimony about her pretrial identification of Aguon.
During the voir dire, the witness testified that she was shown
the photographic lineup, filled out an identification sheet, and
signed it, indicating her identification of Aguon. The witness
essentially repeated this testimony for the jury. The
investigating police officer testified that he used standard
procedures.
Because Aguon failed to demonstrate that the procedure
utilized by the Louisville Police Department was unduly
suggestive, the testimony and evidence of the pretrial
identification of Aguon was properly admitted.
G. Speedy Trial Act. Aguon claims that the delay of over
two years in trying him violates the Speedy Trial Act. The
Court reviews the district court’s interpretation of the Speedy
Trial Act de novo and its factual findings for clear error. See
United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir. 1994).
The Speedy Trial Act requires that a defendant’s trial begin
within seventy days of the filing date of the indictment or
arraignment, whichever is later. See 18 U.S.C. § 3161(c)(1).
However, the seventy-day rule is subject to excludable
periods of delay for consideration of motions, pretrial
Nos. 98-6044/6048/6216 United States v.
Marks, et al.
3
a stuffed animal. She picked them up at the florist and drove
them to her home. Later, an employee of the florist also
found a bag of money on the premises. A few days after the
robbery, the flower shop employees identified Marks and
Aguon from standard photographic lineups. However, one
employee could not identify Aguon.
After leaving the Marks’ home, Marks and Aguon traveled
to Oklahoma where they stayed with William Hayes. Hayes
later testified that Marks and Aguon said that they robbed a
bank.
Marks and Aguon were apprehended and arraigned on
March 19, 1997. Brooks was arraigned on March 26, 1997.
The court scheduled trial for all three defendants for May 19,
1997. Before trial, Defendants filed several motions. Aguon
moved for discovery, to suppress photographic identification,
to sever, and to enlarge time to file additional motions.
Marks also moved for discovery and to sever both defendants
and offenses. The district court judge denied the motions to
suppress, sever, and for discovery.
After Brooks’ original counsel withdrew on April 23, 1997,
Brooks' new attorney moved to continue the trial, which the
district court rescheduled to August 18, 1997. The district
court also made Speedy Trial Act findings. On July 16, 1997,
the case was reassigned to another district judge. Brooks then
moved to sever, to suppress evidence, and to exclude two of
his prior statements. Aguon also moved to exclude his
statements when he was arrested and to suppress the
photographic lineup identification. The district court denied
all these motions.
On August 18, 1997, the morning of trial, Marks, Brooks,
and Aguon agreed to plead guilty to all counts and to
cooperate completely and fully in the ongoing investigation of
the nine bank robberies. The plea agreements were for
specific sentences under Federal Rule of Criminal Procedure
11(e)(1)(C). If Defendants failed to cooperate fully, the

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4 United States v.
Marks, et al.
Nos. 98-6044/6048/6216
Government could move for relief from the agreement. The
district court accepted the pleas and set sentencing for each
Defendant for November 7, 1997.
On October 22, 1997, the Government moved to continue
the sentencing because Defendants had not completed their
cooperation under the plea agreements. Marks objected to the
continuance. Defendants Brooks and Marks responded that
they were dissatisfied with their plea agreements and moved
to withdraw their guilty pleas. After the district court advised
Brooks and Marks of their possible sentences, they
reconsidered and maintained their guilty pleas. The district
court reset Defendants’ sentencing to February 2, 1998.
In early December, 1997, Codefendant James Myles,
previously a fugitive, was arrested. His trial was set for
March 26, 1998. The Government again moved to continue
Defendants' sentencing because Marks and Brooks would
both testify against Myles. The district court reset the
sentencing of Brooks, Marks, and Aguon to April 3, 1998.
On February 27, 1998, Brooks, Marks, and Aguon jointly
moved pro se to set aside their plea agreements. They
claimed that the Government threatened their family and
friends with prosecution if Defendants did not accept the plea
bargains and that their defense counsel constantly pressured
them to accept the plea agreements. On March 17, 1998, the
court heard Defendants’ motion and received testimony. The
court rejected their claims of coercion, finding their proffered
testimony not credible. The court also denied Defendants’
motions for new counsel. At the hearing, the Government
also stated that it would offer Defendants’ incriminating post-
plea statements made while they were cooperating with the
Government. The district court allowed Defendants to
withdraw their pleas, made Speedy Trial Act findings, and set
trial for May 18, 1998.
Before trial, Brooks, Marks, and Aguon renewed several
motions and also moved to suppress their incriminating post-
Nos. 98-6044/6048/6216 United States v.
Marks, et al.
13
exchange for truthful testimony is not an illegal witness
gratuity. This court’s opinion in Ware unequivocally
forecloses defendants’ argument.
Ware was decided on December 3, 1998. Defendants
submitted their proof briefs in late January of 1999, nearly
two months later. They do not mention Ware. Instead, they
excoriate the government for its use of “bribed testimony”
that was “illegally obtained”—as if Ware had never been
decided. During all of the time between the submissions of
their proof briefs in January of 1999 and oral argument in
January of 2000, counsel never acknowledged, as permitted
by Rule 28(j) of the Federal Rules of Appellate Procedure,
that Ware had been decided and that their argument was
foreclosed as a result.
At oral argument, counsel admitted that they knew about
Ware, but did not cite it in their briefs because they were “not
sure where it would go in the appellate process.” Presumably
this meant that they hoped (unrealistically, in our view) that
either this court en banc or the Supreme Court of the United
States would overturn Ware. Because Ware is a published
decision of this court directly contrary to Defendants’
position, it should have been disclosed. See M ODEL R ULES OF
P ROFESSIONAL C ONDUCT Rule 3.3(a)(3) (“A lawyer shall not
knowingly fail to disclose to the tribunal legal authority in the
controlling jurisdiction known to the lawyer to be directly
adverse to the position of the client and not disclosed by
opposing counsel”); Rule 3.3(b) (providing that this duty
continues “to the conclusion of the proceeding.”).
F. Photographic Identification. Aguon claims that the
district court improperly admitted evidence that a witness
identified him in a photographic array. This Court reviews a
district court's factual findings in a motion to suppress
evidence for clear error and its conclusions of law de novo.
See United States v. Williams, 962 F.2d 1218, 1221 (6th Cir.
1992).

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12 United States v.
Marks, et al.
Nos. 98-6044/6048/6216
Allen, 160 F.3d 1096, 1106 (6th Cir. 1998); United States v.
Hudson, 53 F.3d 744, 747 (6th Cir.1995).
Brooks and Marks did not renew their motions to sever at
the conclusion of the trial and, thereby, waived the issue for
appeal. However, even if the issue were preserved, the
district court did not abuse its discretion because Brooks and
Marks failed to show “compelling, specific, and actual
prejudice.” See Sherlin, 67 F.3d at 1215. Defendants’
defenses were not mutually exclusive. Further, Brooks and
Marks did not show that the jury was unable to “separate and
treat distinctively evidence relevant to each particular
defendant.” Medina, 992 F.2d at 587. In fact, the jury
acquitted Marks of his alleged role in the seventh robbery, as
charged in Counts 20, 21, and 22 of the indictment, while
convicting Brooks of his role in the same robbery. Clearly,
the jury did separate and distinguish the evidence between
Brooks and Marks. Accordingly, we affirm the district
court’s denial of Brooks’ and Marks’ motions to sever.
E. Purchased Testimony. Defendants claim that the
testimony of cooperating witnesses who received favorable
plea bargains in exchange for their promises of truthful
testimony should have been excluded because the
Government’s inducement of this testimony violated the
federal witness anti-gratuity statute, 18 U.S.C. § 201(c)(2).
They rely on the Tenth Circuit’s decision in Singleton v.
United States, 144 F.3d 1343 (10th Cir. 1998) (holding that
prosecutors’ offers of favorable plea agreements in exchange
for truthful testimony against accomplices or coconspirators
violate the statute and must be excluded), which was vacated
by the en banc Tenth Circuit within two weeks of the date it
was filed and ultimately repudiated. See Singleton v. United
States, 165 F.3d 1297 (10th Cir.) (en banc), cert. denied, 119
S. Ct. 2371 (1999). In United States v. Ware, 161 F.3d 414
(6th Cir. 1998), cert. denied, 119 S. Ct. 1348 (1999), this
court, like every other circuit to have considered the issue,
rejected the Tenth Circuit panel’s analysis and concluded,
among other things, that a prosecutor’s offer of leniency in
Nos. 98-6044/6048/6216 United States v.
Marks, et al.
5
plea statements. The Government moved to admit the
statements, which the district court granted. The court
concluded that the exclusionary provision for statements
made during plea discussions did not apply to post-plea
statements and that Defendants’ post-plea statements were
otherwise voluntary and, therefore, admissible.
The court also found joinder of Brooks, Marks, Aguon and
Myles proper under Federal Rule of Criminal Procedure 8.
The district court denied Brooks’ motion to suppress his post-
arrest statement, “How much time am I going to get for this?”
because Brooks did not show that the statement was
involuntary. The district court denied Aguon’s motion to
suppress a photographic identification of him by an employee
of the flower shop. Finally, the district court denied Marks’s,
Brooks’s, and Aguon’s objections to the Government’s
intention to introduce evidence of prior bad acts.
On May 19, 1998, the morning of trial, the court
reconsidered severance and severed the trial of Aguon and
Myles from the trial of Brooks and Marks, with appropriate
Speedy Trial Act findings. Brooks and Marks were tried
beginning May 19, 1998, and convicted on May 29, 1998.
Marks was sentenced to 1875 months, and Brooks was
sentenced to 2722 months. The court later corrected their
sentences under United States v. Sims, 975 F.2d 1225 (6th
Cir. 1992), and reduced them by 480 months to 1395 months
and 2242 months respectively.
On July 6, 1998, the morning of trial, Aguon moved to
suppress the testimony of witnesses who testified pursuant to
plea agreements, which the court denied. Aguon also moved
to suppress his post-plea statements to the FBI claiming that
they were not voluntary. After taking testimony, the court
denied the motion. The jury convicted Aguon on all counts.
The district court sentenced Aguon to 438 months.

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6 United States v.
Marks, et al.
Nos. 98-6044/6048/6216
II. DISCUSSION
A. Suppression of Post-plea Incriminating Statements.
Defendants contend that their post-plea statements should
have been excluded. This Court reviews factual findings
about a confession for clear error, but reviews the ultimate
question of voluntariness de novo. See United States v.
Wrice, 954 F.2d 406, 410-11 (6th Cir. 1992).
Federal Rule of Criminal Procedure 11(e)(6) treats the
inadmissibility of pleas, plea discussions, and related
statements:
Except as otherwise provided in this paragraph, evidence
of the following is not, in any civil or criminal
proceeding, admissible against the defendant who made
the plea or was a participant in the plea discussions:
(A) a plea of guilty which was later withdrawn;
(B) a plea of nolo contendere;
(C) any statement made in the course of any proceedings
under this rule regarding either of the foregoing pleas; or
(D) any statement made in the course of plea discussions
with an attorney for the government which do not result
in a plea of guilty or which result in a plea of guilty later
withdrawn.
Fed. R. Crim. P. 11(e)(6).
After Defendants entered their plea agreements, FBI
Special Agent Wight spoke to the Defendants with their
defense counsel either present or informed of the interview.
The court cautioned Defendants about the possible admission
of their post-plea statements when they moved to withdraw
their pleas.
Nos. 98-6044/6048/6216 United States v.
Marks, et al.
11
and that the district court erred by not instructing the jury that
they were permitted—but not required—to find that banks
located in Louisville are also located in the Western District
of Kentucky, it is difficult to imagine any error that would be
more clearly harmless beyond a reasonable doubt.
The Government also established through the testimony of
bank employees in both trials that the banks were federally
insured. In Aguon’s trial, the Government also submitted
certificates of insurance for the banks from the Federal
Deposit Insurance Corporation (“FDIC”). At trial, none of the
Defendants challenged the federally insured status of the
banks.
This Court has held similar evidence as sufficient proof of
a bank being federally insured. See United States v. Wood,
780 F.2d 555, 556-57 (6th Cir. 1986) (holding that the
unrebutted testimony of a bank security officer was
sufficient). See also United States v. Harris, 165 F.3d 1062,
1066 (6th Cir. 1999); United States v. Rowan, 518 F.2d 685,
692-93 (6th Cir. 1975). Considering this evidence in the light
most favorable to the Government, we find that there was
sufficient evidence for the jury to find beyond a reasonable
doubt that the robbed banks were federally insured.
Accordingly, we reject this claim of error.
D. Severance. Defendants Brooks and Marks claim that
their joinder was prejudicial to their defenses. To prevail on
a claim of misjoinder, a defendant must show compelling,
specific, and actual prejudice from the misjoinder of
defendants or offenses. See United States v. Sherlin, 67 F.3d
1208, 1215 (6th Cir. 1995); United States v. Epley, 52 F.3d
571, 578 (6th Cir. 1995); United States v. Medina, 992 F.2d
573, 587 (6th Cir. 1993). This Court reviews denial of
severance motions for abuse of discretion. See Zafiro v.
United States, 506 U.S. 534, 541 (1993); Sherlin, 67 F.3d at
1215. A motion to sever must be renewed at the close of
evidence to be preserved for appeal. See United States v.

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10 United States v.
Marks, et al.
Nos. 98-6044/6048/6216
508 U.S. at 137. The Sixth Circuit has upheld similar
mandatory minimum sentences involving firearms. See, e.g.,
United States v. Duerson, 25 F.3d 376 (6th Cir. 1994) (157
months for robbery with short barrel shotgun). Accordingly,
we find that Brooks’ and Marks’ sentences did not violate the
Eighth Amendment.
C. Proof of Venue and Federal Insurance. Defendants
claim that the Government did not prove the elements of
venue and the federally insured status of the robbed banks.
Brooks and Marks moved for acquittal at the close of proofs
arguing that the Government failed to prove the venue
element. Aguon, however, did not raise this issue at the close
of the Government’s proof and thus failed to preserve it for
appellate review. See United States v. English, 925 F.2d 154,
156 (6th Cir. 1991).
Brooks and Marks argue that even though the jury was
presented with evidence that the robbed banks were located
in Louisville, Jefferson County, Kentucky, no witness ever
specifically testified that the banks were located in the
Western District of Kentucky. The district court took judicial
notice that Louisville is part of the Western District of
Kentucky. Brooks and Marks argue that this was improper
because Rule 201(g) of the Federal Rules of Evidence
requires district courts in criminal cases to instruct the jury
“that it may, but is not required to, accept as conclusive any
fact judicially noticed.”
We are not persuaded. For one thing, 28 U.S.C. § 97(b)
specifically provides that “[t]he Western District [of
Kentucky] comprises the counties of . . . Jefferson . . . [and]
Court for the Western District shall be held at . . .
Louisville. . . .”. Thus, we seriously doubt whether
Louisville’s presence in the Western District of Kentucky is
a “fact” of which the court needed to take judicial notice. But
even if it were an issue of fact, it is certainly not one about
which jurors could rationally disagree. Therefore, even
assuming for the sake of argument that it was an issue of fact,
Nos. 98-6044/6048/6216 United States v.
Marks, et al.
7
In this case, the district court found that (1) Defendants’
admissions, which the Government wanted to admit, were
made after Defendants’ plea agreements had been finalized
and entered, and (2) the plea negotiations did not extend
beyond their signing and filing. The court concluded that
Federal Rule of Criminal Procedure 11(e)(6) did not apply
because the statements were not made during the plea
discussions.
Defendants rely on United States v. Brooks, 536 F.2d 1137
(6th Cir. 1976), and United States v. Herman, 544 F.2d 791
(5th Cir. 1977), for the proposition that statements made to
law enforcement officers pursuant to a plea agreement then in
effect are statements “made in the course of plea discussions.”
Their reliance is misplaced. Congress amended Rule 11(e)(6)
in 1979; it did so in part to abrogate decisions such as Brooks
and Herman, because they manifested what Congress thought
was a too-broad view of the plea negotiation process. See
United States v. Sebetich, 776 F.2d 412, 421 (3d Cir. 1985)
(“Prior to its amendment, the rule provided for the exclusion
of ‘statements made in connection with, and relevant to, any
of the foregoing pleas or offers.’ . . . Some courts construed
this rule liberally. . . . The legislative history of the 1979
amendments manifests congressional disapproval of broad
judicial constructions of the previous language, and the
revision of the rule appears to have been designed specifically
to avoid the result in Herman and other cases reaching similar
results.”). The Third Circuit in Sebetich specifically
identified Brooks as one of the “other cases reaching similar
results.” Id. Rule 11(e)(6)(D) now renders inadmissible only
statements that were “made in the course of plea discussions
with an attorney for the government . . . .” FED . R. C RIM. P.
11(e)(6)(D) (emphasis added). FBI agents cannot negotiate
plea agreements with defendants, so statements that
defendants make to them are not “made in the course of plea
discussions.” See Sebetich, 776 F.2d at 422 (rejecting the
arguments that self-incriminating statements made to a local
police chief were protected by Rule 11(e)(6) because, among
other reasons, the police chief was not an “attorney for the

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8 United States v.
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Nos. 98-6044/6048/6216
government.”). In any event, statements made after a plea
agreement is finalized are not “made in the course of plea
discussions.” See United States v. Watkins, 85 F.3d 498, 500
(10th Cir. 1996); United States v. Lloyd, 43 F.3d 1183, 1186
(8th Cir. 1994); United States v. Davis, 617 F.2d 677, 685
(D.C. Cir. 1979) (“Excluding testimony made after—and
pursuant to—the agreement would not serve the purpose of
encouraging compromise”).
Defendants made their statements to the FBI agent after
they negotiated their plea agreements and pleaded guilty.
Accordingly, Federal Rule of Criminal Procedure 11(e)(6)
does not apply, and their statements were admissible.
Nevertheless, even if Rule 11(e)(6) applied, admission of the
statements was harmless error. See Fed. R. Crim. P. 52(a);
Milton v. Wainwright, 407 U.S. 371, 377-78 (1972). There
was testimony from other participants in the robberies that
Defendants robbed the banks and also other circumstantial
evidence that would support Defendants’ conviction.
Defendants did not show that, in the absence of their
confessions, the evidence was insufficient.
Aguon also claims he entered the plea agreement and gave
a confession because he was coerced. Generally, voluntary
statements are admissible. See Miranda v. Arizona, 384 U.S.
436, 478 (1966). The test for voluntariness is whether the
confession was the product of free and rational choice. See
United States v. Murphy, 763 F.2d 202, 205 (6th Cir.1985).
If a defendant was subject to objectively coercive activity that
overcame his free will, a defendant's statement cannot be used
against him. See United States v. Rigsby, 943 F.2d 631, 635
(6th Cir. 1991). Determining the voluntariness of a statement
requires an analysis of the totality of all the circumstances.
See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973);
McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.1988); 18
U.S.C. § 3501(b).
In the present case, the district court held a suppression
hearing on the morning of trial and received testimony from
Nos. 98-6044/6048/6216 United States v.
Marks, et al.
9
Aguon, his girlfriend, and Special Agent Wight. The post-
plea statements were made in the presence of or with the
knowledge of Defendants’ attorneys. The district court did
not believe Aguon’s testimony that he was coerced because of
the alleged threatened prosecution. Accordingly, the court
found that Aguon’s statements were not coerced. We find
that Aguon has not shown that the district court’s factual
findings were clearly erroneous. Accordingly, we affirm the
ruling of the district court that admitted Defendants’ post-plea
incriminating statements.
B. Length of Sentences. Defendants Brooks and Marks
claim that the length of their sentences amounts to cruel and
unusual punishment. Brooks and Marks essentially challenge
the proportionality of the mandatory sentencing provision. A
constitutional challenge to a sentence is a question of law and
reviewed de novo. See United States v. Lloyd, 10 F.3d 1197,
1220 (6th Cir. 1993).
Title 18 U.S.C. § 924(c) requires enhanced consecutive
sentencing for its violation. See Deal v. United States, 508
U.S. 129, 132-133 (1993). The Supreme Court has
determined that strict proportionality between a crime and its
punishment is not required. See Harmelin v. United States,
501 U.S. 957, 959-960 (1991) (upholding Michigan's penalty
of life imprisonment without parole for possession of more
than 650 grams of cocaine). The Sixth Circuit has adopted
the “narrow proportionality principle” of Harmelin. See
United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991).
Consequently, only an extreme disparity between crime and
sentence offends the Eighth Amendment. See id.
In this case, no disparity exists between the multiple crimes
and the sentence in the cases of Brooks and Marks. Brooks
committed nine armed bank robberies within six months.
Marks participated in six of the robberies. In a case involving
similar facts, the Supreme Court held that a 105-year sentence
following conviction of six armed robberies with attendant
convictions under 18 U.S.C. § 924(c) is not unjust. See Deal,

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