U.S. v. Oberle, 96-2275

• Decision Date: 25 February 1998
• Docket Number: No. 96-2275,96-2275
• Citation: 136 F.3d 1414
• Parties: 48 Fed. R. Evid. Serv. 1175 UNITED STATES of America, Plaintiff-Appellee, v. Frank Anthony OBERLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1414

136 F.3d 1414

48 Fed. R. Evid. Serv. 1175

UNITED STATES of America, Plaintiff-Appellee, v. Frank Anthony OBERLE, Defendant-Appellant.

No. 96-2275.

United States Court of Appeals, Tenth Circuit.

Feb. 25, 1998.

John V. Butcher, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.

Tara C. Neda, Assistant United States Attorney, Albuquerque, NM (John J. Kelly, United States Attorney for the District of

New Mexico, with her on the briefs), for Plaintiff-Appellee.

Before ANDERSON, EBEL and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

Frank Oberle appeals his conviction for bank robbery and his resulting sentence. He contends that the district court erred in admitting evidence regarding his prior criminal history and in refusing to admit testimony that supported his defense; that the prosecutor committed misconduct by arguing that he was a professional bank robber; that the jury was instructed incorrectly; and that he was unconstitutionally sentenced to life imprisonment under the federal "Three Strikes" law, 18 U.S.C. § 3559(c) (1994). We affirm.

BACKGROUND

Between November 1995 and February 1996 four Albuquerque banks were robbed late on Friday afternoons by a man wearing a ski mask who carried a gun in his left hand and a bag in his right, asked for $20, $50 and $100 bills, and left after warning witnesses that there was a bomb at the door. After the fourth robbery a witness reported the robber's license plate number to police. The owner of the car told police he had loaned his car to Frank Oberle ("Oberle"). After investigation, Oberle was charged with one count of armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) & (d) and 18 U.S.C. § 2. The charge related to the last bank robbery, which took place February 23, 1996.

Oberle was tried before a jury. He did not testify. However, Christopher Jensen ("Jensen"), who drove the getaway car, testified against Oberle pursuant to a plea agreement. He identified Oberle as the robber who entered the banks and described how Oberle prepared for the robberies. Oberle's brother, Gary Oberle ("Gary"), testified under a grant of immunity for the bank robberies. Gary said that he saw Oberle and Jensen counting the robbery proceeds and that he overheard Oberle talking about robbing banks. He further testified about his own expenses and recent purchases, which greatly exceeded his monthly income, but claimed that Oberle had helped him financially. Gary also admitted to having a heroin addiction and being in a methadone treatment program.

During trial the government sought to introduce a letter written by Oberle to Gary while Oberle was in jail awaiting trial. The letter stated, "Just tell her I'm going back to prison on a violation. Don't tell her that I have a new case" (emphasis in original). Oberle objected to the admission of this evidence under Federal Rules of Evidence 404, 403, and 609. The court allowed the admission of the evidence as a party's admission under Federal Rule of Evidence 801(d).

Also during trial an FBI agent testified that when he interviewed Oberle, Oberle had stated that he was surprised that the FBI had not come to him earlier because "the bank robberies were his MO," meaning modus operandi. Oberle objected and moved for a mistrial on the grounds that the jury had effectively been informed that Oberle had previously been convicted of bank robbery. The district court overruled Oberle's objection and denied his motion for a mistrial. During opening statement and closing argument the prosecutor referred to Oberle as a seasoned bank robber and a professional who showed knowledge of the justice system. Oberle objected to only one of these references.

Oberle's theory of defense was that there was one robber of all four banks, and it was his brother Gary. As part of his defense, Oberle sought to introduce evidence from a methadone treatment clinic of the drug treatment Gary had received to show that Gary had a motive to commit robbery because he had an extensive heroin addiction and to undermine Gary's credibility regarding his claims to have stopped using drugs. After the drug treatment clinic moved to quash Oberle's subpoena to it, the district court found that Oberle had not yet shown good cause for introducing the clinic's records, which were confidential under 42 U.S.C. § 290dd-2(a) (1992). The court left open the possibility of introducing the records, depending on Gary's testimony, but ultimately denied Oberle's motion to admit them. The At the close of trial, Oberle objected to the court's instruction directing jurors not to be concerned about the guilt of any person other than Oberle, because it contradicted the defense theory that Gary was the guilty party. He also objected to the court's aiding and abetting instruction, because, he asserted, first the instruction contradicted the government's theory of liability, and second the particular instruction did not adequately inform jurors that Oberle could not be guilty of aiding and abetting merely by associating with the robbers.

court also quashed a subpoena issued to Oberle's probation officer, who was to testify in Oberle's defense that Oberle never showed signs of drug use, that he had been employed at the relevant times, and that he could reasonably have expected to be put back in prison for a parole violation if he picked up a new charge even if he were acquitted of the new charge. That would explain why his statement about "Just tell her I'm going back to prison on a violation" was not necessarily an admission of guilt on the new charge of bank robbery.

The jury found Oberle guilty. At sentencing the district found that Oberle was subject to mandatory life imprisonment under the "Three Strikes" law, 18 U.S.C. § 3559(c) (1994), because he had previously been convicted of at least two serious violent felonies. Based on the government's presentation of certified copies of the judgments of conviction, the district court rejected Oberle's argument and found that Oberle had two prior bank robbery convictions and two prior aggravated robbery convictions. Oberle was sentenced to life imprisonment, and now appeals his conviction and sentence.

DISCUSSION

A. Admission of Evidence

Oberle appeals the district court's decision to allow the admission of Oberle's letter to Gary, in which Oberle wrote "Just tell her I'm going back to prison on a violation. Don't tell her I have a new case." He also objects to the introduction of his statement to the FBI agent that "the bank robberies were his MO."

We review the district court's decision to admit evidence for an abuse of discretion. See United States v. Segien, 114 F.3d 1014, 1022 (10th Cir.1997), petition for cert. filed (U.S. Aug. 26, 1997)(No. 97-6568). Although the statements are party admissions under Rule 801(d) and thus not hearsay, they must nevertheless also be analyzed for admissibility under Rule 404(b) because they reveal or suggest prior criminal conduct. See United States v. Maden, 114 F.3d 155, 157 (10th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 226, 139 L.Ed.2d 158 (1997). Under Rule 404(b), we examine whether:

(1) the prosecution offered the evidence for a proper purpose under Rule 404(b); (2) the evidence is relevant under Fed.R.Evid. 401; (3) the evidence's probative value is not substantially outweighed by its potential for unfair prejudice under Fed.R.Evid. 403; and (4) the district court, upon request, gave a proper instruction limiting the jury's consideration of the evidence to the purpose for which it was admitted.

Segien, 114 F.3d at 1022-23.

1. Statement about going back to prison

Oberle contends that his statement "Just tell her I'm going back to prison on a violation. Don't tell her that I have a new case," was erroneously allowed as evidence of his prior criminal record. The government, on the other hand, argues that this statement is an acknowledgment of guilt of the charged offense because it is a prediction by Oberle that he will ultimately be found guilty and sent to prison on his "new case."

This statement is quite equivocal. Although it could be read as the government suggests, it is not a clear admission of guilt of the charged bank robbery. Because a natural reading of the statement is not particularly inculpatory on the crime charged and because the statement effectively informs the jury that Oberle has been in prison previously, it may have been an abuse of discretion to conclude that the statement's probative value outweighed its prejudice, as required by the Rule 404(b) analysis. However, even if the court erred in allowing the

statement, such error does not require reversal in light of the substantial evidence against Oberle and the limiting instruction given to the jury in the final jury instructions. See United States v. Birch, 39 F.3d 1089, 1094-95 (10th Cir.1994) (harmless error where record "reveals substantial evidence of defendant's guilt"); see also United States v. Olivo, 80 F.3d 1466, 1469 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 265, 136 L.Ed.2d 189 (1996) (error would be harmless where considerable evidence linked defendant to crime and court "cautioned the jury" about the limited purpose of the evidence). Further, the jury was made aware of Oberle's prior history of robbing banks through the admission of his "MO" statement, and, as discussed below, the admission of that statement was not erroneous. Consequently, we do not believe that the statement had a "substantial influence" on the outcome of the case. See United States v. Flanagan, 34 F.3d 949, 955 (10th Cir.1994).

2. Statement about Oberle's MO

Over Oberle's objection, the district court admitted the FBI agent's testimony that Oberle acknowledged to him that "the robberies were his MO." Oberle argues the statement was "unadulterated propensity evidence" that "was relevant for no proper purpose." Where a district court fails to "precisely articulate the purpose of this...