United States v. Clay

• Decision Date: 10 January 2012
• Docket Number: No. 09–5568.,09–5568.
• Citation: 667 F.3d 689
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Gary CLAY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

667 F.3d 689

UNITED STATES of America, Plaintiff–Appellee,

v.Gary CLAY, Defendant–Appellant.

No. 09–5568.

United States Court of Appeals, Sixth Circuit.

Argued: July 21, 2011.Decided and Filed: Jan. 10, 2012.

ARGUED: Christopher P. Keleher, Querrey & Harrow, Ltd., Chicago, Illinois, for Appellant. Scott A. Winne, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee. ON BRIEF: Christopher P. Keleher, Querrey & Harrow, Ltd., Chicago, Illinois, M. Keith Davis, Austin, Davis & Mitchell, Dunlap, Tennessee, for Appellant. Zachary C. Bolitho, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.Before: MOORE and KETHLEDGE, Circuit Judges; MARBLEY, District Judge.^*MARBLEY, D.J., delivered the opinion of the court, in which MOORE, J., joined. KETHLEDGE, J. (pp. 702 – 05), delivered a separate dissenting opinion.

OPINION

ALGENON L. MARBLEY, District Judge.

Defendant–Appellant Gary Clay appeals his convictions of carjacking and brandishing a firearm, contending that the district court erred in admitting evidence of prior bad acts, in denying his Rule 29 motion for acquittal, and in denying his motion for a downward variance at sentencing. Because the district court erred in admitting evidence of prior bad acts and the errors were not harmless, we REVERSE Clay's convictions and REMAND for a new trial.

I. BACKGROUND

In 2007, Kathryn White worked for the Internal Revenue Service in Chattanooga, Tennessee. When she arrived at work the morning of November 1, an African American male approached her as she exited her white 2003 Pontiac Grand Prix. The man pointed a silver semi-automatic handgun at her and ordered her out of the car. A co-worker, Ramona Means, pulled into the parking lot a few minutes later. When the man saw Means, he turned and pointed the gun at her car. He looked back and forth between White and Means, and threatened to “put a cap in [Means]” if White did not start her car. White complied, and the man drove away in the Grand Prix.

The FBI assigned Officer Matthew Hennessee to the case. He soon learned that about an hour after the car was stolen someone attempted to use White's stolen Bank of America and Conoco Phillips card at a First Tennessee Bank ATM. The Bank's surveillance video showed that a unshaven, African American man wearing a red and white patterned shirt and a hooded jacket had attempted to use the cards. Officer Hennessee obtained still photos from the ATM video, compared them to Gary Clay's driver's license photo, and determined that they were the same person.

After days of searching, officers located the Grand Prix in the parking lot of the East Lake Courts housing complex. They conducted surveillance on the vehicle and determined the apartment with which the car was associated. They went to that apartment and were met by two women, Miranda Abernathy and Valerie Hancock. Clay was in the apartment and arrested without incident.

Hancock, the lessee, consented to a search of the apartment. Officers located several items, including the keys to the Grand Prix and items reported stolen in a recent robbery. Inside the Grand Prix, officers found a compact disc containing pictures of Clay with friends and family. In several of the pictures, he was wearing a red and white patterned shirt.

Officer Hennessee traced the items reported stolen to a robbery of two vehicles in a Cricket Communications parking lot. The first vehicle belonged to Steve Moser. A handgun, handgun case, and Motorola cell phone were missing from his truck after the break-in. While police found the case in bushes near the lot, they never recovered the gun. The second vehicle belonged to Ronald Archey. A checkbook and portable DVD player were missing from his car. The police located these two items in the apartment where they found Clay. A surveillance video from the lot showed an African American man wearing a red and white patterned shirt breaking into the cars and walking away with the handgun case. The red and white shirt was similar to the shirt on the compact disc found in the Grand Prix and the shirt worn in the video from the First Tennessee Bank.

A grand jury charged Clay with carjacking in violation of 18 U.S.C. § 2119 and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The case proceeded to trial, and the district court made two pre-trial evidentiary rulings that are at issue in this appeal. First, Clay sought to exclude evidence of an assault he had committed against Karissa Marshall in 2006. The district court admitted Marshall's testimony under Rule 404(b) to show Clay's specific intent, but prevented the government from informing the jury that Clay had been convicted of assaulting Marshall. The court also agreed to provide a limiting instruction before Marshall's testimony.¹ Second, Clay sought to exclude any evidence relating to the theft of Moser's handgun from his truck. The district court admitted evidence of the uncharged theft under both the res gestae doctrine and 404(b), and issued a limiting instruction prior to the evidence's introduction. ²

At trial, Officer Hennessee testified about his investigation. Abernathy, who lived in the apartment, testified that she saw Clay with a semi-automatic handgun during the general time period of the offense. She also testified that she saw Clay driving a Pontiac Grand Prix during this same time period, and when shown a picture of White's car, stated, “[t]hat's the car he drove.” Means, a parking lot witness, could not positively identify the suspect. White died in a car accident before the trial. There is no indication in the record that she made any prior identifications. At the close of the government's case, Clay made a Rule 29 motion. The district court denied the motion.

Clay did not testify, but he presented four witnesses. Gail Evans, an IRS employee who was also in the parking lot that morning, testified that she had previously described the carjacker as 5'8?, clean shaven, and of medium complexion. A day after the carjacking, she reviewed a photographic lineup, which included Clay. She identified an individual that she was 50% sure was the person she saw during the carjacking. It was not Clay. Evans also testified that a week before trial, she was shown a photograph of two men standing next to each other: Clay and his friend Adarius Smith. She identified Smith, who is 5'8?, as the carjacker.

The evidence established that Clay was between 6'1? and 6'2?. Clay's brother, Gregory Clay, testified that Clay is right-handed, has two tattoos, and always wears a mustache. On cross-examination, he was shown letters that Clay had written from jail to Jessica Starkey, the mother of his child. In the letters, Clay asked Ms. Starkey to construct an alibi for him and to blame the carjacking on Adarius Smith.

The jury found Clay guilty on both counts. The court sentenced him to 360 months of imprisonment.

II. LAW AND ANALYSIS

A. Standard of Review

A district court determines the admissibility of evidence under Rule 404(b) pursuant to a three-step process.

First, the district court must decide whether there is sufficient evidence that the other act in question actually occurred. Second, if so, the district court must decide whether the evidence of the other act is probative of a material issue other than character. Third, if the evidence is probative of a material issue other than character, the district court must decide whether the probative value of the evidence is substantially outweighed by its potential prejudicial effect.

United States v. Jenkins, 345 F.3d 928, 937 (6th Cir.2003) (citing United States v. Haywood, 280 F.3d 715, 719–20 (6th Cir.2002)).

We typically review a district court's evidentiary rulings for an abuse of discretion. General Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); United States v. Ganier, 468 F.3d 920, 925 (6th Cir.2006). Because the district court uses a multi-step analysis in determining whether to admit Rule 404(b) evidence, however, we also utilize a three-step process in reviewing these determinations. First, we review for clear error the factual determination that other acts occurred. Second, we review de novo the legal determination that the acts were admissible for a permissible 404(b) purpose. Third, we review for abuse of discretion the determination that the probative value of the evidence is not substantially outweighed by unfair prejudicial impact. United States v. Hardy, 228 F.3d 745, 750 (6th Cir.2000).

Finally, this Court reviews de novo a district court's denial of a Rule 29 motion for judgment of acquittal based on the insufficiency of the evidence. United States v. Humphrey, 279 F.3d 372, 378 (6th Cir.2002). The Court must construe the evidence in the light most favorable to the government, and then determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Hofstatter, 8 F.3d 316, 324 (6th Cir.1993), cert. denied, 510 U.S. 1131, 114 S.Ct. 1101, 127 L.Ed.2d 413 (1994). A defendant “bears a very heavy burden” in a sufficiency of the evidence challenge. United States v. Davis, 397 F.3d 340, 344 (6th Cir.2005) (internal citations omitted).

B. Other Act: Assault

Federal Rule of Evidence 404(b) allows the government to introduce evidence of “other crimes, wrongs, or acts” committed by the defendant so long as the evidence is not used merely to show propensity and if it “bears upon a relevant issue in the case.” Hardy, 228 F.3d at 750. The Rule contains a non-exhaustive list of possible purposes: “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). Such evidence “is not admissible to prove the character of a person in order to show action in conformity therewith.” Id.

Clay...