U.S. v. Fortenberry, 91-7209
| Decision Date | 10 September 1992 |
| Docket Number | No. 91-7209,91-7209 |
| Citation | 971 F.2d 717 |
| Parties | 36 Fed. R. Evid. Serv. 726 UNITED STATES of America, Plaintiff-Appellee, v. Charles Eugene FORTENBERRY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
David Arendall, Birmingham, Ala., for defendant-appellant.
Frank W. Donaldson, U.S. Atty., John E. Ott, Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before DUBINA, Circuit Judge, HILL, and CLARK *, Senior Circuit Judges.
Charles Eugene Fortenberry ("Fortenberry") appeals his convictions and sentences on two counts of unlawful possession of a firearm under 18 U.S.C. § 922(g) 1 and one count of obstructing justice under 18 U.S.C. § 1512(b)(3) 2. For the reasons which follow, we affirm.
In December of 1988, the Piedmont, Alabama, police suspected Fortenberry in the double murder of Jimmy Isaac ("Isaac") and Jack Williams ("Williams"). Pursuant to a properly obtained warrant, authorities searched Fortenberry's apartment for the suspected murder weapon, a Mossberg 500 12-gauge shotgun. No shotgun was found; however, during the search, officers discovered a .22 caliber Westpoint semi-automatic rifle. Because Fortenberry was a convicted felon, officers seized the rifle as evidence of a crime. Fortenberry was neither arrested nor questioned. Thereafter, authorities uncovered further evidence linking Fortenberry to the double murder and the suspected murder weapon. The murder weapon itself was never recovered.
A federal grand jury indicted Fortenberry for unlawful possession of a Mossberg 500 12-gauge shotgun (Count Two) and unlawful possession of a Westpoint .22 caliber semi-automatic rifle (Count Three) in violation of 18 U.S.C. § 922(g). 3 The indictment also charged Fortenberry with obstructing justice (Count Four) in violation of 18 U.S.C. § 1512(b)(3).
Before trial, the government notified Fortenberry of its intent to introduce, pursuant to Federal Rules of Evidence 404(b), 4 evidence of Fortenberry's participation in the murders to establish Count Two, the illegal possession of the shotgun used to commit the murders. Fortenberry moved in limine to suppress evidence linking him to the double murder as unduly prejudicial under Federal Rules of Evidence 403. 5 He further moved to suppress evidence of three prior felony convictions. Fortenberry also filed objections to the probation officer's sentencing guidelines' calculations. The district court denied Fortenberry's motion in limine and withheld ruling on Fortenberry's objections to the guidelines' calculations until sentencing. 6
At trial, the government presented numerous witnesses linking Fortenberry to the double murder and the murder weapon itself. Primary among them was Fortenberry's codefendant, Clyde Ray Davis ("Davis"). A summary of Davis' testimony proves instructive. Davis, Fortenberry, and Williams planned to murder Isaac. 7 On the night of the murder, the three conspirators went to Davis' house and retrieved a Mossberg 500 12-gauge shotgun. Williams left in his van to pick up Isaac and take him to Hank's Cemetery (the "cemetery"), the intended location of the murder. Fortenberry and Davis left separately in Davis' truck, taking the Mossberg shotgun with them. En route to the cemetery, the truck broke down. Davis and Fortenberry asked two strangers for a ride back to Davis' house, which one of the strangers provided. From there, Davis and Fortenberry drove another car to the cemetery where they awaited the arrival of Williams and Isaac. When Williams' van appeared, Fortenberry left the car with the Mossberg shotgun. Davis stayed behind. Fortenberry later returned with the shotgun and told Davis, "it's done with." Davis and Fortenberry then returned to Davis' house. There, Fortenberry told Davis that he had killed Williams too. Davis' testimony concluded with his description of his attempts to hide the murder weapon. He stated that he ultimately threw it into a creek. 8
On cross examination, Davis testified that he was a four-time convicted felon; that he had lied about his criminal record to buy the murder weapon; that, initially, he had lied to the police about his and Fortenberry's involvement in the double murder; that he probably had told the police forty-seven times in a statement that neither he nor Fortenberry had anything to do with the murders; that he had told his family that he had nothing to do with the murders; and that, initially, he falsely told the police that he had sold the suspected murder weapon at an auction.
The government presented further evidence linking Fortenberry to the murders and the murder weapon. Corey Pike ("Pike") testified that, on the night of the murders, two men approached him and a friend. At least one carried a gun. The men stated that their truck had broken down and asked for a ride home. Pike testified that his friend drove the men home. The friend, Shane Mullock, was unavailable to testify.
Jerry Morgan testified that in the fall of 1988 he saw two guns in Fortenberry's house, a .22 rifle and a 12-gauge shotgun. He further testified that on two occasions after the murders, Fortenberry admitted killing Isaac and Williams.
Robert Gerald Smith ("Smith") testified that before the double murder, Fortenberry had asked for help assaulting Isaac. Smith declined to help. Smith also testified that the day following the murders, Fortenberry admitted killing Isaac and Williams. Several other witnesses--Peggy Morgan, Ted Randall Smith, and Pam Foley--testified that Fortenberry admitted killing Isaac and Williams.
Before admitting the foregoing evidence as to Count Two, the district court cautioned the jury that Fortenberry was not on trial for murder but for possessing firearms only. The district court explained that the murder evidence was admissible solely for the jury to determine whether it created an inference that Fortenberry possessed the shotgun in question.
Additional evidence established that Fortenberry had several prior felony convictions and that the firearms which were the subject of the indictment had been transported in interstate commerce.
The jury returned a verdict of guilty on all counts. 9 The district court sentenced Fortenberry to ten years' imprisonment on each count, with each sentence to run consecutively for a total of thirty years. This appeal followed.
Fortenberry raises the following four issues on appeal: (1) whether the district court erred in failing to grant his motion in limine; (2) whether the evidence supported the jury's guilty verdict; (3) whether the district court erred in failing to suppress evidence of certain statements Fortenberry made as to Count Three; and (4) whether the district court properly sentenced Fortenberry pursuant to the United States Sentencing Guidelines (the "sentencing guidelines" or "guidelines"). Our review of the record persuades us that Fortenberry's arguments concerning issues (2) and (3) are meritless and can be affirmed without opinion. However, we are compelled to address issues (1) and (4).
Fortenberry argues that certain evidence linking him to the murder of Isaac and Williams should have been suppressed as violative of Federal Rules of Evidence 403. Specifically, he argues that evidence of the double murder used at trial to establish his illegal possession of a firearm irreparably prejudiced his case before the jury. The government argues that the murder evidence was inextricably intertwined with evidence of the charged offense and, moreover, not unduly prejudicial. We review a district court's evidentiary rulings for abuse of discretion. United States v. Lehder-Rivas, 955 F.2d 1510, 1515 (11th Cir.1992)
Generally, evidence of other crimes committed outside of those charged is not admissible. Fed.R.Evid. 404. However, other crimes evidence may be admissible if it is inextricably intertwined with the evidence regarding the charged offense. United States v. Gomez, 927 F.2d 1530, 1535 (11th Cir.1991); United States v. Weeks, 716 F.2d 830, 832 (11th Cir.1983). Such intrinsic evidence may be excluded nonetheless if its probative value "is substantially outweighed by the danger of unfair prejudice." Fed.R.Evid. 403. In United States v. Norton, 867 F.2d 1354 (11th Cir.), cert. denied, 493 U.S. 871, 110 S.Ct. 200, 107 L.Ed.2d 154 (1989), we stated:
[T]he court's discretion to exclude evidence under Rule 403 is narrowly circumscribed. "Rule 403 is an extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concededly probative evidence."... The balance under the Rule, therefore, should be struck in favor of admissibility.
Id. at 1361 (quoting United States v. Betancourt, 734 F.2d 750, 757 (11th Cir.), cert. denied, 469 U.S. 1021, 105 S.Ct. 440, 83 L.Ed.2d 365 (1984)).
We agree with the district court that the proffered evidence of Fortenberry's participation in the double murder of Williams and Isaac was inextricably intertwined with evidence of his firearm possession. This evidence was an essential part of the chain of events explaining the context, motive, and set-up of the possession charge and was necessary to complete the story of the crime for the jury. United States v. Herre, 930 F.2d 836, 837-38 (11th Cir.1991). The evidence explained Davis' presence with Fortenberry on the day Fortenberry possessed the shotgun. It also explained the context of how and why Fortenberry acquired possession of the shotgun. In short, the murder evidence was an integral part of the circumstances surrounding Fortenberry's illegal possession of the shotgun, and was reasonably necessary to complete the story of the crime. See United States v. Foster, 889 F.2d 1049, 1053 (11th Cir.1989); United States v. Martin, 794 F.2d 1531, 1532-33 (11th Cir....
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