United States v. Patrick Davis, 724 F.3d 949

Davis was indicted on four bank-robbery counts (18 U.S.C. § 2113(a)) and two related counts for intimidating a witness and discharging a firearm in furtherance of that intimidation; alleged pattern: similar robberies near Milwaukee with surveillance photos and a tip identifying Davis.
After the fourth robbery an anonymous tip linked Davis and his mother’s white Cadillac to the crimes; Davis later surrendered to the FBI, was released, then arrested after police linked ballistics from shots fired into a witness’s vehicle to a Glock found on Davis.
Superseding indictment charged Counts 1–4 (bank robberies), Count 5 (witness intimidation under §1512(a)(2)(C) tied to the bank-robbery investigation), and Count 6 (§924(c) firearm discharge during the Count 5 offense).
Davis moved pretrial to sever Counts 5–6 from Counts 1–4 under Fed. R. Crim. P. 8(a) and, alternatively, under Rule 14; the magistrate and district court denied severance.
Parties disputed jury-instruction language: government proposed pattern instruction using "should"; Davis sought "must" for the acquittal direction. District court ultimately used "must" in both paragraphs and instructed jurors to consider each count separately.
Jury convicted Davis on three bank-robbery counts (Counts 2–4) and acquitted him on Count 1 and on Counts 5–6; Davis appealed, challenging the jury wording and the joinder/severance rulings.

Issue	Davis's Argument	Government's Argument	Held
Whether replacing "should" with "must" in the burden-of-proof jury instruction (first paragraph) was erroneous	"Must" improperly forecloses jury nullification and eliminates jury's inherent power to acquit	Pattern language is appropriate; wording does not change substantive burden	No reversible error; no prejudice from using "must"; instruction fairly stated law
Whether Counts 5–6 (witness intimidation/firearm) were misjoined under Rule 8(a)	Counts are unrelated to the bank robberies; no common scheme	Indictment alleges the intimidation was meant to hinder reporting of the bank robberies; counts are part of same scheme	Properly joined under Rule 8(a) as part of a common scheme or plan
Whether Counts 5–6 should have been severed under Rule 14(a) due to prejudice	Introduction of violent-acts and firearm evidence caused spillover prejudice on bank-robbery counts	Limiting instructions and separate-count verdicts mitigate prejudice; evidence was probative and tied to scope of scheme	No abuse of discretion in denying severance; no actual prejudice shown
Whether any misjoinder or instruction error requires reversal of convictions	(cumulative) Errors tainted verdicts and denied fair trial	Jury acquitted on some counts, asked for clarification, and followed limiting instructions; no prejudice	Affirmed convictions; errors, if any, were harmless

United States v. Quintero, 618 F.3d 746 (7th Cir.) (standard for reviewing jury instructions)
United States v. Perez, 86 F.3d 735 (7th Cir. 1996) (jury nullification is a fact, not a right)
United States v. Anderson, 716 F.2d 446 (7th Cir. 1983) (instructions may not sanction nullification)
United States v. Kerley, 838 F.2d 932 (7th Cir. 1988) (no substantive difference between "should" and "must" in instruction context)
United States v. Ross, 510 F.3d 702 (7th Cir. 2007) (de novo review of preserved Rule 8(a) misjoinder claims)
United States v. Berg, 714 F.3d 490 (7th Cir. 2013) (Rule 8(a) construed broadly for judicial efficiency; limiting instructions mitigate prejudice)
Zafiro v. United States, 506 U.S. 534 (1993) (Rule 14 severance standard; limiting instructions as remedy)
United States v. Lane, 474 U.S. 438 (1986) (misjoinder reversal requires substantial and injurious effect)
Richardson v. Marsh, 481 U.S. 200 (1987) (juries are presumed to follow limiting instructions)