U.S. v. Route, 96-10297

Citation104 F.3d 59
Decision Date13 January 1997
Docket NumberNo. 96-10297,96-10297
Parties46 Fed. R. Evid. Serv. 442 UNITED STATES of America, Plaintiff-Appellee, v. Michael Wayne ROUTE, Defendant-Appellant. Summary Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Christopher Allen Curtis, Assistant U.S. Attorney, Office of U.S. Attorneys, Dallas, TX, for plaintiff-appellee.

Laurance L. Priddy, Fort Worth, TX, for defendant-appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before SMITH, DUHE and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Michael Route appeals his conviction of thirteen counts of bank fraud in violation of 18 U.S.C. § 1344. Finding no error, we affirm.

I.

Route was charged with participating in a scheme to defraud various businesses and financial institutions. Route and Eddie Crossley conspired to draft checks payable in the name of Paul Beaty, a fictitious individual in whose name Route and Crossley had obtained a Texas driver's license, which checks were then given to Marvin Fullwood. Fullwood, having obtained a bank account in Beaty's name, would then cash the checks and give a certain percentage of the proceeds to Route and Crossley.

After Crossley and Fullwood cooperated with authorities in exchange for leniency, the government proceeded to trial against Route. A jury convicted Route on all thirteen counts, and the court sentenced him to thirteen concurrent ninety-six-month terms of imprisonment and thirteen concurrent five-year terms of supervised release, restitution in the amount of $74,490, and a special assessment of $650.

II.
A.

Route contends first that the district court erred in failing to grant his pretrial motion to suppress evidence seized during the execution of an arrest warrant at his residence. We review the district court's factual findings for clear error and its conclusions of law de novo. See United States v. Rico, 51 F.3d 495 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 220, 133 L.Ed.2d 150 (1995).

It is uncontested that the police obtained a valid arrest warrant for both Route and Crossley to be executed at Route's residence. 1 When the police arrived at the residence, they found Route backing his car out of the driveway and arrested him immediately. Route testified at the suppression hearing that, after he refused to consent to a search of his home, Detective Faber took the house keys from his pocket and proceeded to enter the house.

While in the house, Faber observed computer equipment and other items that he believed had been used in the commission of the bank fraud. After receiving a search warrant based in large part upon the observations made during his search of the house, Faber returned to Route's house and seized the computer equipment and other accessories.

Faber testified at the suppression hearing that, after Route had refused to consent to a house search and after Route insisted that he did not know of Crossley's whereabouts, Faber proceeded to walk around the perimeter of the house in search of Crossley. According to Faber, as he was walking around the house, he heard the television inside the residence and thus suspected that Crossley might be inside. After Route again refused permission to search the house for Crossley, Faber entered the house, whereupon he did not find Crossley but did happen upon the computer equipment and other criminal accessories.

A valid arrest warrant carries with it the implicit but limited authority to enter the residence of the person named in the warrant in order to execute the warrant, where there is "reason to believe" that the suspect is within. See Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388-89, 63 L.Ed.2d 639 (1980); United States v. Woods, 560 F.2d 660, 665 (5th Cir.1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1452, 55 L.Ed.2d 497 (1978). As distinct from the "probable cause" standard that governs the initial issuance of the arrest warrant and that must be determined by a magistrate, we have defined previously the "reason to believe" standard to " 'allow[ ] the officer, who has already been to the magistrate to secure an arrest warrant, to determine that the suspect is probably within certain premises without an additional trip to the magistrate and without exigent circumstances.' " Woods, 560 F.2d at 665 (quoting United States v. Cravero, 545 F.2d 406, 421 (5th Cir.1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977)). 2

All but one of the other circuits that have considered the question are in accord, relying upon the "reasonable belief" standard as opposed to a probable cause standard. 3 To the extent that this court has not already done so in Woods, we adopt today the "reasonable belief" standard of the Second, Third, Eighth, and Eleventh Circuits.

There is no clear error in the district court's determination that Faber had a reasonable belief that Crossley resided at 1520 Mims and was within the residence at the time of entry. As noted above, Faber had confirmed via Crossley's credit card applications, water and electricity bills, car registration, and receipt of mail that Crossley at least was representing to others that he was residing at 1520 Mims. Whether Crossley was in fact residing at 1520 Mims, which appears to have been the case, is irrelevant to our conclusion that Faber had done sufficient due diligence to form a reasonable belief of Crossley's residence there.

Faber also testified at the suppression hearing that when he arrived at 1520 Mims, although Route was leaving the residence, Faber could hear the television inside the house and noticed another vehicle remaining in the driveway. In light of Faber's reasonable belief that Crossley resided at 1520 Mims, we agree with the district court that Faber's observations were sufficient to form a reasonable belief that Crossley was in fact in the residence at the time of the warrant.

B.

Route next argues that the district court erred in admitting evidence of other fraudulent activity under FED.R.EVID. 404(b). The government had sought to introduce evidence of Route's 1980 conviction for possession of a stolen check and his 1990 conviction for bank fraud, for which conviction he was on supervised release at the time of his arrest for the present charges. The district court excluded the 1980 conviction for staleness but allowed the government to introduce the 1990 conviction. To prevent the jury from hearing of the conviction, Route agreed to stipulate that in 1989 he and another individual had devised and executed a scheme to defraud a financial institution by opening several bank accounts using false social security numbers and by depositing stolen checks into the accounts and then withdrawing the cash.

We review the admission of extrinsic acts evidence for abuse of discretion. See United States v. Broussard, 80 F.3d 1025, 1039 (5th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 264, 136 L.Ed.2d 189 (1996). We use a two-part test to determine whether evidence is admissible properly under 404(b): (1) whether the evidence is relevant to an issue other than the defendant's character and (2) whether the evidence possesses probative value that is not outweighed substantially by the danger of unfair prejudice and is otherwise admissible under Rule 403. See United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979).

We agree with the district court that evidence of the 1990 conviction was relevant to an issue other than Route's character--namely, intent and knowledge. In the instant trial, Route defended himself by arguing that, although blank checks identical to those used in the scheme were found in his home and although the printer matching the print found on the tainted checks was also found there, Crossley had used his home and computer equipment without his knowledge. Evidence of a similar scheme in which Route opened bank accounts under false names and deposited stolen checks in the accounts (within five years of the instant scheme) was indeed relevant to Route's instant intent and knowledge.

Furthermore, the probative value of Route's extrinsic acts evidence was not outweighed substantially by the danger of unfair prejudice. Notwithstanding Route's protestations to the contrary, the events were neither too remote nor too dissimilar. See, e.g., Broussard, 80 F.3d at 1040 (noting that rule 404 does not bar per se the introduction of a ten-year-old conviction). Moreover, any prejudice Route suffered was mitigated by the admission of his stipulated involvement in the scheme (as opposed to his actual conviction) and by the limiting instruction to the jury regarding the proof of other criminal conduct. See, e.g., United States v. Devine, 934 F.2d 1325, 1346 (5th Cir.1991).

C.

Route next contends that the district court erred by terminating prematurely his cross-examination of Fullwood, the chief government witness. On cross-examination, Route asked Fullwood whether Crossley had hid in Fullwood's dormitory room for the two days following Route's arrest. The district court noted correctly that the question was beyond the scope of Fullwood's direct examination and instructed Route to restrict properly his examination.

A district court possesses wide latitude to impose reasonable limits on cross examination, subject to the Confrontation Clause of the Sixth Amendment. See United States v. Cooks, 52 F.3d 101, 103 (5th Cir.1995). We review the restriction of the scope of cross-examination for abuse of discretion. See United States v. Stewart, 93 F.3d 189, 193 (5th Cir.1996). Even where the district court abuses its discretion, we will not order a new trial unless the harm is plainly prejudicial. See Cooks, 52 F.3d at 104.

The district court did not abuse its discretion. The court correctly instructed Route that his cross-examination of Fullwood was limited by the scope of the government's direct examination,...

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