U.S. v. Burwell

• Decision Date: 22 July 2011
• Docket Number: 06–3083,06–3077,06–3071,06–3073,06–3084.,Nos. 06–3070,s. 06–3070
• Citation: 642 F.3d 1062,395 U.S.App.D.C. 241,85 Fed. R. Evid. Serv. 264
• Parties: UNITED STATES of America, Appelleev.Bryan BURWELL, Aaron Perkins, Malvin Palmer, Carlos Aguiar, Miguel Morrow, and Lionel Stoddard, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

642 F.3d 1062

395 U.S.App.D.C. 241

85 Fed. R. Evid. Serv. 264

UNITED STATES of America, Appellee

v.Bryan BURWELL, Aaron Perkins, Malvin Palmer, Carlos Aguiar, Miguel Morrow, and Lionel Stoddard, Appellants.

Nos. 06–3070

06–3071

06–3073

06–3077

06–3083

06–3084.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 17, 2011.Decided April 29, 2011.Rehearing En Banc Denied July 22, 2011.

Appeals from the United States District Court for the District of Columbia (No. 04cr00355–05).Robert S. Becker, appointed by the court, argued the issues Other–Crimes Evidence, Bias Cross–Examination Evidence, and Sufficiency of Machine-Gun Evidence. William Francis Xavier Becker, appointed by the court, argued the issue Motion to Sever. With them on the briefs were Mary E. Davis, Allen H. Orenberg, and David B. Smith, appointed by the court, A.J. Kramer, Federal Public Defender, and W. Gregory Spencer, Assistant Federal Public Defender.Stratton C. Strand, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, Roy W. McLeese III, Daniel P. Butler, and Stephanie C. Brenowitz, Assistant U.S. Attorneys.Before: HENDERSON, TATEL and BROWN, Circuit Judges.Opinion for the Court by Circuit Judge BROWN.BROWN, Circuit Judge:

The relatively routine legal questions presented by this appeal arise from quite an unusual set of facts. Appellants are modern-day bank robbers whose old-school tactics—more reminiscent of the brashness of John Dillinger than the subtlety of Willie Sutton—included subduing innocent bystanders with gratuitous gunplay, pistol whipping a victim, and peppering a pursuing police car with bullets. When the aftermath of their final robbery was captured on film by a TV station's news camera crew, the robbers were apprehended a few weeks later, convicted by jury of numerous crimes, and sentenced to various terms of imprisonment. They now assert assorted infirmities in both the trial and their sentences. We affirm.

I

Because “brevity is the soul of wit,” ¹ we offer only an abbreviated version of the essential facts underlying this appeal. The six Appellants, along with co-conspirators-turned-government-witnesses Nourredine Chtaini and Omar Holmes, indulged in a violent crime spree throughout the District of Columbia metro area that lasted for nearly a year and a half. Appellants, who began by cultivating and selling marijuana, evolved into a ring that committed armed bank robberies, using stolen vehicles to travel to the targeted banks and make their escapes. By the summer of 2004, the robbers had developed a signature style. The gang wore bullet-proof vests, masks, and gloves, and relied on superior fire power, preferring to use military weapons like AK–47s instead of handguns because they surmised the metropolitan police “wouldn't respond” when Appellants “robb[ed] banks with assault weapons.” (Tr. 5/10/05PM at 3950). The gang made use of several stolen vehicles, strategically placed along the get-away-route, for each robbery. The robbers would serially abandon the vehicles, often torching them in an attempt to destroy any forensic evidence that might be left behind.

After their apprehension, a grand jury issued a twenty-count indictment charging Appellants with racketeering conspiracy, armed-bank-robbery conspiracy,² four armed bank robberies, two assaults with intent to kill, and various weapons crimes. Following a lengthy trial, a jury convicted each defendant of RICO conspiracy under 18 U.S.C. § 1962(d) and conspiracy to commit armed bank robbery under 18 U.S.C. § 371. Each defendant was also convicted for his individual participation in specific bank robberies and of various firearms offenses. Additionally, Miguel Morrow was convicted of assault with intent to kill while armed pursuant to D.C.Code §§ 22–401, – 1805, – 4502, but Morrow and Lionel Stoddard were acquitted of a separate assault with intent to kill charge.

At sentencing, the district court prescribed life imprisonment for Morrow. As for the other defendants, Stoddard received 725 months' imprisonment; Carlos Aguiar, 720 months' imprisonment; Bryan Burwell, 495 months' imprisonment; Aaron Perkins, 417 months' imprisonment; and Malvin Palmer, 512 months' imprisonment. The court also sentenced each defendant to a term of supervised release and ordered the defendants to pay restitution, jointly and severally. The defendants now appeal, alleging an assortment of errors in both their trial and sentencing proceedings.

II

Although Appellants raised numerous issues on appeal, only two of those arguments have arguable merit. We limit our discussion accordingly.

A

During the trial, the government sought and gained admission of a hoard of “other crimes” evidence. The Appellants now argue the admission of this evidence was in error, both because it was offered for an impermissible purpose and because its probative value was substantially outweighed by its prejudicial effect. We disagree.

Federal Rule of Evidence 404(b) provides: “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.” Nonetheless, such evidence is expressly permitted “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. We have described Rule 404(b) as “a rule of inclusion rather than exclusion.” United States v. Bowie, 232 F.3d 923, 929 (D.C.Cir.2000). Even if admissible under Rule 404(b), however, that evidence is subject to Rule 403's balancing test: evidence is admissible unless its probative value is substantially outweighed by its prejudicial effect. Fed.R.Evid. 403. We review the admission of other crimes evidence for abuse of discretion. United States v. Douglas, 482 F.3d 591, 596 (D.C.Cir.2007). But “because the trial court is in the best position to perform the subjective balancing required by Rule 403,” we review its Rule 403 rulings “only for grave abuse.” Id. (quotation marks and alteration omitted).

We must first confront Appellants' argument that before permitting the government to introduce other crimes evidence, the district court had “to rule preliminarily that the jury could reasonably find ... by a preponderance of the evidence” that Appellants committed the uncharged acts. Appellants' Opening Br. at 18. Appellants are correct that when the government seeks to introduce evidence that a defendant committed another crime, that evidence is only relevant, and hence potentially admissible, if a reasonable jury could find by a preponderance of the evidence that the defendant, and not someone else, was responsible for the crime. See Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988); see also Fed.R.Evid. 104(b). Because district courts have broad “discretion in controlling the order of proof at trial,” however, they may conditionally admit evidence of other crimes subject to the requirement that the government later introduce sufficient evidence for the jury reasonably to find that the defendant committed those crimes. Huddleston, 485 U.S. at 690, 108 S.Ct. 1496; see also Fed.R.Evid. 104(b) (providing that “[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact,” the court may admit the evidence “subject to[ ] the introduction of evidence sufficient to support a finding of the fulfillment of the condition”). We thus reject Appellants' suggestion that the district court abused its discretion by permitting the government to introduce other crimes evidence without reaching a preliminary determination as to whether the government had presented sufficient evidence to support a finding that defendants committed the uncharged acts. Appellants made no objection on conditional relevancy grounds, and thus, the district court's failure to make an explicit sufficiency determination on its own initiative did not constitute plain error. See Huddleston, 485 U.S. at 690 n. 7, 108 S.Ct. 1496 (“It is, of course, not the responsibility of the judge sua sponte to insure that the foundation evidence is offered....” (internal quotation marks omitted)).

The evidence admitted under Rule 404(b) ³ falls into three broad categories: evidence of Appellants' commission of three carjackings; evidence of Appellants' theft of forty cars; and evidence of Appellants' use of false names, as well as their marijuana cultivation and distribution. The district court admitted the evidence of the carjackings, false names, and marijuana cultivation and distribution for a variety of purposes, including the theory that it demonstrated Appellants' modus operandi and identities. We agree with Appellants that admission for either of those purposes was improper.

Although not listed in Rule 404(b)'s nonexclusive list of proper purposes, modus operandi evidence is normally admitted pursuant to the identity exception. See United States v. Carr, 373 F.3d 1350, 1353 (D.C.Cir.2004); United States v. Crowder, 87 F.3d 1405, 1413 (D.C.Cir.1996), rev'd on other grounds, 519 U.S. 1087, 117 S.Ct. 760, 136 L.Ed.2d 708 (1997). But evidence of modus operandi must be unique; “the Government must establish not only that the extrinsic act bears some peculiar or striking similarity to the charged crimes, but also that it is the defendant's trademark, so unusual and distinctive as to be like a signature.” ⁴ Crowder, 87 F.3d at 1413 (quotation marks omitted). The Appellants' use of violence and weapons is, unfortunately, not so unique to crimes in the District of Columbia that it constitutes appropriate modus operandi evidence.

Nor was their use of guns and violence so distinctive that it demonstrated Appellants' identity. To be relevant to identity, the other crimes must share similar characteristics with the charged acts. United States v. Lawson, 410 F.3d 735, 741 (D.C.Cir.2005) (admitting other crimes evidence to...