U.S. v. Foutz

• Decision Date: 16 August 1976
• Docket Number: No. 75-2152,75-2152
• Citation: 540 F.2d 733
• Parties: UNITED STATES of America, Appellee, v. Pembrick Edward FOUTZ, Jr., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 733

540 F.2d 733

UNITED STATES of America, Appellee, v.Pembrick Edward FOUTZ, Jr., Appellant.

No. 75-2152.

United States Court of Appeals Fourth Circuit.

Argued May 6, 1976.

Decided Aug. 16, 1976.

Peter D. Ward(court-appointed counsel), Asst. Federal Public Defender, Baltimore, Md. (Charles G. Bernstein, Federal Public Defender, Baltimore, Md., on brief), for appellant.

Steven Kellough, law student (Jervis S. Finney, U. S. Atty., and Robert A. Rohrbaugh, Asst. U. S. Atty., Baltimore, Md., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, WINTER and WIDENER, Circuit Judges.

WINTER, Circuit Judge:

Pembrick Edward Foutz, Jr. was convicted by a jury of twice robbing the Kensington, Maryland, branch of the Bank of Bethesda, in violation of 18 U.S.C. §§ 2and2113(a), (b), (d), and (f).Although the two robberies took place two and one-half months apart, Foutz was tried for both offenses in one proceeding; his motion for relief from prejudicial joinder under Fed.R.Crim.P. 14 was denied by the district court.On appeal, Foutz argues that the district judge abused his discretion by not granting a severance.He claims that prejudice arose from the fact that the same jury heard evidence of both crimes, whereas had he been tried separately for each robbery, evidence of one offense would not have been admissible at the trial for the other.We agree, and reverse and remand for new, separate trials for each robbery.

I.

On December 30, 1974, a lone black male, armed with a handgun, robbed the Bank of Bethesda at Kensington, Maryland.He entered through the front door, vaulted the tellers' counter at teller position number two, and took money from two tellers' drawers.He left through the same door and walked up a side street.The robber wore a turtleneck sweater pulled up over his mouth and a beret-type hat.Two bank employees testified that Foutz appeared similar to the robber.No fingerprints of Foutz were found at the scene, and the photographs taken by the bank surveillance camera were apparently not helpful in identification.The defense presented as an alibi witness a Washington police cadet who testified with considerable certainty and specificity that Foutz was with her in Washington at the time of the robbery.

On March 13, 1975, the same bank was robbed by a group of three black males.They entered by the front door.One robber, allegedly Foutz, stood near the door holding a handgun on the bank employees.He wore a wide-brimmed hat and may have had on a turtleneck sweater.The other two robbers vaulted the tellers' counter near position number two and took money from several tellers' drawers.All three robbers then escaped down the same side street used by the lone gunman in the previous robbery.There they were observed entering an automobile which was shown to be registered to Foutz.Two bank employees testified that Foutz resembled the robber who stood near the door and held the gun.So far as the record reveals, no fingerprints were found, and apparently the surveillance photographs did not depict the robber alleged to be Foutz.The defense presented an alibi witness who was unable to account for Foutz' whereabouts at the time of the robbery.

Foutz was charged with both robberies in one indictment, as permitted by Fed.R.Crim.P. 8(a), since the offenses were of the "same or similar character."He then made a timely motion for a severance under Rule 14, alleging that he would be prejudiced by a joint trial.The motion was denied.The jury returned a verdict of guilty of both robberies.A motion for a new trial on the grounds of prejudicial joinder was denied.Foutz was sentenced to twenty-five years, imprisonment for each offense, the sentences to run concurrently.

II.

Rule 14 provides that a severance may be granted "(i)f it appears that a defendant or the government is prejudiced by a joinder of offenses . . . ."The granting of a severance under Rule 14 is committed to the discretion of the district court.United States v. Catena, 500 F.2d 1319, 1326(3 Cir.), cert. denied, 419 U.S. 1047, 95 S.Ct. 621, 42 L.Ed.2d 641(1974);United States v. Clayton, 450 F.2d 16, 18(1 Cir.1971), cert. denied, 405 U.S. 975, 92 S.Ct. 1200, 31 L.Ed.2d 250(1972);United States v. Adams, 434 F.2d 756, 758(2 Cir.1970).In this case, we believe it was an abuse of that discretion not to grant a severance.

We begin our analysis with Rule 8 which permits joinder under three circumstances: (1) if the offenses "are of the same or similar character"; (2) if they"are based on the same act or transaction"; or (3) if they are based "on two or more acts or transactions connected together or constituting parts of a common scheme or plan."In the instant case, joinder was initially permissible only because the offenses were of the same or similar character.When two or more offenses are joined for trial solely on this theory, three sources of prejudice are possible which may justify the granting of a severance under Rule 14: (1) the jury may confuse and cumulate the evidence, and convict the defendant of one or both crimes when it would not convict him of either if it could keep the evidence properly segregated; ¹(2)the defendant may be confounded in presenting defenses, as where he desires to assert his privilege against self-incrimination with respect to one crime but not the other; ² or (3) the jury may conclude that the defendant is guilty of one crime and then find him guilty of the other because of his criminal disposition.As we view the record, we are concerned here with the latter form of prejudice.

While to the layman's mind a defendant's criminal disposition is logically relevant to his guilt or innocence of a specific crime, the law regards the inference from general to specific criminality so weak, and the danger of prejudice so great, that it attempts to prevent conviction on account of a defendant's bad character.Thus, evidence of "other crimes" which is relevant only to prove a criminal disposition is universally acknowledged to be inadmissible.Fed.R.Ev. 404(b);United States v. Woods, 484 F.2d 127, 133(4 Cir.1973), cert. denied, 415 U.S. 979, 94 S.Ct. 1566, 39 L.Ed.2d 875(1974);Bradley v. United States, 140 U.S.App.D.C. 7, 433 F.2d 1113, 1117-18(1969);McCormick on Evidence § 190 at 447(Clearyed. 1972).

One inevitable consequence of a joint trial is that the jury will be aware of evidence of one crime while considering the defendant's guilt or innocence of another.If the rationale of the "other crimes" rule is correct, it would seem that some degree of prejudice is necessarily created by permitting the jury to hear evidence of both crimes.SeeDrew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85, 89-90(1964);8 Moore's Federal Practice P 8.05(2)at 8-22 and P 14.03 at 14-7 to 14-8;1 Wright, Federal Practice and Procedure§ 143 at 317-18; Note, Joint and Single Trials Under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L.J. 553, 556-58 (1965).

Although the law does not allow consideration of other crimes as evidence of a defendant's criminal disposition, evidence of other crimes is admissible for certain other purposes because its probative value is then thought to outweigh its prejudicial effect.In those instances where evidence of one crime is admissible at a separate trial for another, it follows that a defendant will not suffer any additional prejudice if the two offenses are tried together.³SeeUnited States v. Bragan, 499 F.2d 1376, 1380(4 Cir.1974);United States v. Williamson, 482 F.2d 508, 511(5 Cir.1973);Bradley v. United States, 433 F.2d at 1118;Drew v. United States, 331 F.2d at 90;8 Moore's Federal PracticeP 14.03 at 14-8.2;1 Wright, Federal Practice and Procedure§ 222 at 439.

When offenses are joined under Rule 8 on the ground that they"are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan," it is manifest that evidence of one offense would ordinarily be admissible at a separate trial for the other.When offenses are joined because they"are of the same or similar character," however, admissibility at separate trials is not so clear.

In this case, the government argues that evidence of one bank robbery would have been admissible at a trial for the other in order to prove the identity of the perpetrator, under the so-called "handiwork" or "signature" exception to the other crimes rule.Under this exception, if the prosecution can produce evidence tending to show that the defendant committed the "other crime," and if that crime was committed in a manner so similar to that of the offense for which the defendant is being tried that it is highly probable that the same person committed both crimes, then evidence of the "other crime" is admissible to prove that the defendant committed the offense with which he is charged.SeeUnited States v. Woods, 484 F.2d at 133-34;McCormick, supra, § 190 at 449.The government's proof, especially that showing the use of Foutz' automobile by the robbers, tended to identify Foutz as one of the perpetrators of the second robbery.Thus, if the two robberies were committed in a sufficiently similar manner, evidence of the second robbery would have been admissible at a separate trial for the first, and untoward prejudice could not inhere in joinder.

We do not think that the two robberies were so similar as to warrant the inference that they were perpetrated by the same individual.The same bank was robbed twice; beyond this, the differences between the crimes are more striking than the similarities, and such similarities as do exist "all fit into an obvious tactical pattern which would suggest itself to almost anyone disposed to commit a depredation of this sort."Drew v. United States, 331 F.2d at 93(robbery of two High's ice cream stores by negroes wearing sunglasses);seeUnited States v. Carter, ...