U.S. v. Lewis

• Decision Date: 02 September 1986
• Docket Number: No. 85-5045,85-5045
• Citation: 787 F.2d 1318
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory LEWIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1318

787 F.2d 1318

UNITED STATES of America, Plaintiff-Appellee, v. Gregory LEWIS, Defendant-Appellant.

No. 85-5045.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 2, 1985.

Decided April 18, 1986.

As Amended on Denial of Rehearing and Rehearing En Banc

Sept. 2, 1986. ^*

Richard Romero, Nora Manella, Asst. U.S. Attys., Los Angeles, Cal., for plaintiff-appellee.

Janet I. Levine, Michelson & Levine, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before FLETCHER, PREGERSON, and CANBY, Circuit Judges.

FLETCHER, Circuit Judge:

Gregory Lewis appeals from his conviction for conspiracy, 18 U.S.C. Sec. 371 (1982), bank larceny and killing to avoid apprehension for bank larceny, 18 U.S.C. Sec. 2113(b), (d), (e) (1982) and for being a felon in receipt of a firearm, 18 U.S.C. Sec. 922(h) (1982). The charges arose out of a robbery at a Los Angeles Savings & Loan and the murder of the owner of the getaway vehicle. Lewis challenges the trial court's denial of his motions to sever the receipt of firearm counts, to strike the killing charge because Sec. 2113(e) did not apply to the facts of the case and for a mistrial. We reverse the conviction for killing to avoid apprehension due to manifest prejudice from the failure to sever the felon in receipt counts, and affirm the other convictions.

I. INTERPRETATION OF 18 U.S.C. Sec. 2113(e)

Lewis claims that 18 U.S.C. Sec. 2113(e) does not apply to the killing because it took place several hours before the robbery. ¹ Apparently the getaway vehicle was secured early in the morning on the day the bank was robbed. Its owner was found in an alley, killed by three .22 caliber bullets from two different guns.

The controlling words of the statute are "avoiding or attempting to avoid apprehension for the commission of such offense [a bank larceny in this case]." We held in United States v. Jackson, 756 F.2d 703 (9th Cir.1985), that the statute does apply to the killing in this case. Kevin Jackson, one of Lewis's co-conspirators, was convicted of the same bank larceny and acquitted of the same murder that are at issue here. On appeal, Jackson argued that the murder charge was improper under the statute, and that its joinder prejudiced his robbery trial. We found joinder proper. 756 F.2d at 705-06. We rejected the argument that a murder hours before a robbery could not have been committed while attempting to avoid apprehension and held that "the test is not the time and place of the murder, but its relation to the robbery." Id. at 706. Because the "purpose of using another person's vehicle is to avoid or attempt to avoid apprehension," the murder occurred "in connection with" the robbery. Id.

II. SEVERANCE OF WEAPONS COUNTS

Lewis does not dispute the propriety of joinder of the gun counts to the other charges under Fed.R.Crim.P. 8(a); one of the guns in question was used in the bank robbery by a co-conspirator. However, he claims that his motion for severance under Rule 14 was improperly denied. ² We review for abuse of discretion. ³ See The defendant has the burden of proving that the joint trial was manifestly prejudicial. Irvine, 756 F.2d at 712; United States v. Bronco, 597 F.2d 1300, 1302 (9th Cir.1979). The prejudice must have been of such magnitude that the defendant's right to a fair trial was abridged. DiCesare, 765 F.2d at 898.

                United States v. DiCesare, 765 F.2d 890, 898 (9th Cir.), modified on other grounds, 777 F.2d 543 (9th Cir.1985);  United States v. Irvine, 756 F.2d 708, 712 (9th Cir.1985) (per curiam).  The test is whether joinder was so prejudicial that the trial judge was compelled to exercise his discretion to sever.    United States v. Nolan, 700 F.2d 479, 482 (9th Cir.), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983);  United States v. Ragghianti, 527 F.2d 586, 587 (9th Cir.1975)
                

Lewis asserts that he was prejudiced because evidence of his prior felony conviction would not have been admissible in a trial on the larceny and killing counts since he would not have taken the stand. He claims that evidence of the conviction and of his lying under oath when acquiring one of the guns was manifestly prejudicial because the evidence against him on the other counts, particularly the killing charge, was not overwhelming. Without the proof of his past criminal history, he suggests the jury might not have convicted him of the other counts.

There is "a high risk of undue prejudice whenever ... joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible." United States v. Daniels, 770 F.2d 1111, 1116 (D.C.Cir.1985). The government is prohibited from introducing evidence of a defendant's prior crimes to show that the defendant has a bad character and is therefore likely to have committed the crime with which he is charged. Fed.R.Evid. 404(b); United States v. McKoy, 771 F.2d 1207, 1213 (9th Cir.1985). The use of other crimes evidence is not looked on favorably and its use must be narrowly circumscribed and limited. United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir.1985).

Our reluctance to sanction the use of evidence of other crimes stems from the underlying premise of our criminal justice system, that the defendant must be tried for what he did, not for who he is. Under our system, an individual may be convicted only for the offense of which he is charged and not for other unrelated criminal acts which he may have committed. Therefore, the guilt or innocence of the accused must be established by evidence relevant to the particular offense being tried, not by showing that the defendant has engaged in other acts of wrongdoing.

Id. Accord Daniels, 770 F.2d at 1116. The danger that a jury will infer present guilt from prior convictions cannot be ignored by the court in deciding whether to sever a charge that necessitates the introduction of other crimes evidence. See Daniels, 770 F.2d at 1118; see also United States v. Pietras, 501 F.2d 182, 185 n. 1 (8th Cir.) (district court granted motion for severance on this ground), cert. denied, 419 U.S. 1071, 95 S.Ct. 660, 42 L.Ed.2d 668 (1974). The government does not contend that evidence of Lewis's prior conviction would have been admissible on the larceny, conspiracy and killing counts absent the joinder. Cf. Irvine, 756 F.2d at 712 (no prejudice where bulk of evidence admissible absent joinder); United States v. Kenny, 645 F.2d 1323, 1345 (9th Cir.) (same), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981).

Courts have used two different approaches to severance where the admission of evidence of prior crimes would be inadmissible on some of the counts. In United States v. Busic, 587 F.2d 577 (3d Cir.1978), rev'd on other grounds, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980), the Third Circuit stated,

in ruling on a pre-trial motion to sever the district court should determine whether evidence of the prior convictions would be independently admissible on the other counts. If it is determined that the convictions would not be admissible on the other counts--that were these counts to be tried alone the jury would not hear this evidence--then severance should be granted.

Id. at 585 (footnote omitted).

Other circuits have not adopted a per se rule, ⁴ but instead examine the record for undue prejudice on a case-by-case basis. See Daniels, 770 F.2d at 1118; United States v. Valentine, 706 F.2d 282, 290 (10th Cir.1983); Panzavecchia v. Wainwright, 658 F.2d 337, 341-42 (5th Cir.1981). We agree that a per se rule is inappropriate but recognize that there is "a high risk of undue prejudice whenever, as in this case, joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible." Daniels, 770 F.2d at 1116. [U.S. v. Daniels, 770 F.2d 1111 (D.C.Cir.1985)]. It is much more difficult for jurors to compartmentalize damaging information about one defendant derived from joined counts, see Ragghianti, 527 F.2d at 587, than it is to compartmentalize evidence against separate defendants joined for trial. Studies have shown that joinder of counts tends to prejudice jurors' perceptions of the defendant and of the strength of the evidence on both sides of the case. See Tanford, Penrod & Collins, Decision Making in Joined Criminal Trials: The Influence of Charge Similarity, Evidence Similarity, and Limiting Instructions, 9 Law and Human Behavior 319, 331-35 (1985); Bordens & Horowitz, Joinder of Criminal Offenses: A Review of the Legal and Psychological Literature, 9 Law and Human Behavior 339, 343, 347-51 1985).

We disagree with Lewis's contention that the evidence on the larceny count was not overwhelming. It showed that he was present at the planning meetings, his gun was used inside the bank, his effects were found in the get-away van, and he abandoned his apartment and moved to Mexico under an assumed name. Evans, one of the other robbers, testified convincingly and graphically as to Lewis's participation in the bank robbery.

We agree, however, that the evidence is sparse on the killing charge. We know that during the planning for the robbery, Lewis was present at a meeting where there was a conversation that suggested that the robbers might have to "take someone out" to obtain a getaway vehicle. Whether he heard the remark is not known; there was testimony that he was not a participant in the conversation. There was evidence that Lewis supplied weapons and ammunition for the conspiracy. We know that the body of the owner of the getaway vehicle was shot with three .22 caliber bullets from two different guns. Twenty-two-caliber bullets were found in Lewis's apartment and in the van, but his gun was not used for the killing. There was evidence that the bullets may have come from the same box as...