U.S. v. Mathis

• Decision Date: 30 August 2001
• Docket Number: No. 99-5940,99-5940
• Parties: (3rd Cir. 2001) UNITED STATES OF AMERICA, Appellee v. KEITH MATHIS, Appellant
• Court: U.S. Court of Appeals — Third Circuit

Page 321

264 F.3d 321 (3rd Cir. 2001)

UNITED STATES OF AMERICA, Appellee v. KEITH MATHIS, Appellant

No. 99-5940

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued June 1, 2000

Filed August 30, 2001

On Appeal from the United States District Court for the District of New Jersey District Judge: Honorable Alfred J. Lechner, Jr. (No. 98-CR-656-2) [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Robert J. Cleary, Esq. George S. Leone, Esq. Phillip H. Kwon, (argued) United States Attorney Assistant United States Attorney 970 Broad Street Room 700 Newark, NJ 07102, Counsel for Appellee United States of America

Mark A. Berman, (argued) Peter J. Torcicollo, Gibbons, Del Deo, Dolan, Griffinger & Vecchione One Riverfront Plaza Newark, NJ 07102, Counsel for Appellant

Before: SCIRICA and NYGAARD, Circuit Judges and POLLAK,^* District Judge

OPINION OF THE COURT

POLLAK, District Judge:

This appeal concerns three challenges to Keith Mathis's conviction for bank robbery and conspiracy to commit bank robbery. First, Mr. Mathis claims that the District Court wrongly admitted into evidence testimony describing his involvement in previous, uncharged bank robberies. Second, Mr. Mathis asserts that the District Court erred in admitting evidence that his picture was selected from a photographic array, because the array was unconstitutionally suggestive. Third, Mr. Mathis argues that the District Court wrongly excluded expert testimony that called into question eyewitness testimony identifying Mr. Mathis as he fled from the robbery. As described herein, we disagree with Mr. Mathis's first and second arguments on their merits; with respect to the third, we hold that the District Court erred in part, but we find it highly improbable that such error affected the jury's decision. Thus, we affirm Mr. Mathis's conviction.

I. Background

On October 20, 1998, a grand jury indicted Mr. Mathis, Steven Gantt, and Jeffrey Seaberry on one count of bank robbery, in violation of 18 U.S.C. SS 2113(a) and 2, and one count of conspiracy to commit bank robbery, in violation of 18 U.S.C. S 371. The indictment charged the three men with conspiring, from October 11 to October 14, 1998, to rob the Sun National Bank in Maple Shade, New Jersey, and with successfully robbing that bank on October 14, 1998. Mr. Mathis pled not guilty to both counts, and his trial commenced on January 19, 1999.

At Mr. Mathis's trial, two witnesses testified that they saw, from an adjoining office building, three masked men with guns run into, and then out of, Sun National Bank. These witnesses testified that the three masked men drove away in a dark-colored Jeep. Also, several Sun National Bank employees testified that, when the three were inside the bank, one stood near the door holding two guns, while the other two jumped over the bank counter and took money from tellers' drawers. Video footage taken by the bank's security cameras confirmed the basic details of these accounts.

The prosecution's primary witnesses were Sergeant Gary Gubbei and one of Mr. Mathis's alleged co-conspirators, Mr. Gantt. Sergeant Gubbei testified that, on the morning of October 14, he responded to a radio dispatch describing the robbery and the getaway vehicle. Soon thereafter, Sergeant Gubbei spotted a black Jeep Cherokee with an African-American driver in the opposing lane of traffic; Sergeant Gubbei turned and gave chase. After a period of pursuit, the Jeep left the highway and drove onto a grass median, where the vehicle apparently stalled and coasted to a halt. Three men exited the Jeep while it was still moving--the driver first, then a forward passenger, then a rear passenger--and escaped over a guardrail on the highway's far side. The forward passenger, while stumbling over the guardrail, dropped a black bag containing money. The rear passenger carried a gun in his right hand as he exited the Jeep and held the weapon near his head, pointing toward the sky. The rear passenger momentarily looked back at Sergeant Gubbei before running away, and Sergeant Gubbei testified at trial that he was able, based on that brief view, to identify the fleeing man as Mr. Mathis. Sergeant Gubbei also testified that, at 1:00 p.m. on October 15, he selected Mr. Mathis's picture from an eight-picture photographic array as depicting one of the Jeep's occupants.

Mr. Gantt, who pled guilty in this case, testified that he and Mr. Mathis jointly robbed a total of twelve banks, including the Sun National Bank, and that seven of these robberies, including that of the Sun National Bank, also involved Mr. Seaberry. Mr. Gantt further testified that these seven robberies shared other characteristics: The robbers covered their faces with masks; the robbed banks were located near Camden, New Jersey; and Mr. Mathis often stood as an armed guard, while Mr. Gantt and Mr. Seaberry vaulted the counters and stole cash from the drawers.

In describing the Sun National Bank robbery, Mr. Gantt testified that Mr. Mathis, Mr. Seaberry, and he parked a Jeep at the rear of the bank's parking lot, donned face masks, ran alongside the bank, and entered through the front of the building. Mr. Gantt stated that he and Mr. Seaberry jumped over the tellers' counters and placed money from the drawers in a bag they were carrying, while Mr. Mathis stood guard with two pistols. The three then returned to the Jeep. Mr. Seaberry drove, Mr. Gantt rode in the forward passenger's seat, and Mr. Mathis rode in the rear passenger's seat. Mr. Gantt testified that, as the Jeep tried to evade a pursuing police cruiser (apparently driven by Sergeant Gubbei), Mr. Seaberry tried to drive over the highway's grass divider, causing the Jeep's engine to stall, and the three men exited while the vehicle was still rolling forward. Mr. Gantt stated that he and Mr. Mathis jumped over the highway guardrail and, without Mr. Seaberry, escaped after stealing a nearby delivery truck. At trial, Detective Jeff Hoch testified that he arrested Mr. Seaberry near an apartment complex beside the highway.

II. Grounds for Appeal

A. Evidence of Uncharged Robberies

At trial, the government moved in limine to admit into evidence testimony from Mr. Gantt concerning eleven robberies that he and Mr. Mathis had jointly undertaken prior to the Sun National Bank robbery. The government first addressed the testimony's admissibility under Federal Rule of Evidence 404(b), which states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .

Fed. R. Evid. 404(b). According to the government, the disputed evidence was admissible, inter alia, to show Mr. Mathis's familiarity with Mr. Gantt and Mr. Seaberry prior to the charged offense and to show the group's modus operandi for robbing banks. In response, Mr. Mathis conceded that Rule 404(b) was satisfied, but he claimed that Mr. Gantt's testimony presented a risk of unfair prejudice that substantially outweighed its probative value and was therefore barred by Rule 403, which provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Fed. R. Evid. 403.

The District Court admitted Mr. Gantt's testimony into evidence, holding, as a preliminary matter, that Rule 404(b) was satisfied because the testimony's description of uncharged acts was linked to charged conduct by "[t]he same general area, the same general time period, the intent entering into the conspiracy, the background of this, the familiarity [of] one with the other, the agreement among everyone and the knowledge with regard to how to carry out bank robberies." With respect to Rule 403, the District Court acknowledged that there was "prejudice in this evidence," but it also found that the evidence "possess[ed] great probative value." Mr. Mathis's defense was one of mistaken identity, and the District Court found that "[t]his evidence from a co-defendant links him directly to the crime, directly with the evidence of the police officer who will testify. . . . I find it is not unfairly prejudicial looking at what the Government must prove, what is available to the Government and who is going to be offering the testimony." When Mr. Gantt completed his testimony regarding the uncharged robberies, the District Court read a jury instruction (whose substance is not challenged) limiting use of the testimony to showing "defendant's knowledge of the crime of bank robbery and . . . his familiarity with the other alleged co-conspirators" and to showing "that the robbery of Sun National Bank was part of a scheme or plan in which the defendant participated." The District Court stressed that the jury could consider such evidence "only for [those] limited purposes . . . [and] to use the evidence for any other purpose would be improper and violative of your oath."

We review a district court's decision to admit or exclude evidence for abuse of discretion, and such discretion is construed especially broadly in the context of Rule 403. E.g., Hurley v. Atl. Police Dep't, 174 F.3d 95, 110 (3d Cir. 1999). On appeal, Mr. Mathis claims that Rule 403 should have barred the contested portion of Mr. Gantt's testimony because "evidence relating to so many other uncharged bank robberies" inevitably prejudiced the jury "by demonstrating that Mathis had a propensity to rob banks." Appellant's Br. at 28. He also claims that such testimony was not significantly probative because the government "could establish Mathis' identity, or his association to Gantt . . . by Sergeant Gubbei's eyewitness...