423 F. App'x 873
11th Cir.2011Background
- Gay was convicted by a Northern District of Georgia jury of robbery of United States property under 18 U.S.C. § 2114(a) and sentenced to 120 months in prison.
- At the robbery, a postal employee (Spratling) was robbed of a gray Bank of America bag containing about $850; description noted a tall African-American male with specific features.
- A witness (Greenway) followed the robber in a vehicle and provided details of the getaway car, described as a pre-1997 Honda Accord with tinted windows.
- Federal agents used a photo array; Spratling identified Gay’s photograph as the robber with certainty.
- Gay was on parole; during a 2009 search, authorities recovered a gray bank bag and $3,000 cash at Gay’s residence and in his Mercedes.
- Gay appeals on evidentiary rulings and jury instructions, arguing improper admission of 404(b) evidence, pretrial identification, and failure to instruct on a lesser included offense; the district court’s rulings are challenged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of 404(b) evidence | Gay contends Norrington's robbery-crew testimony and parolee status, plus prior convictions, were unduly prejudicial | Proffered evidence is inextricably intertwined or sufficiently probative to prove identity and context | Admissible; not reversible error |
| Admissibility of parolee status evidence | Parole status is prejudicial and improper | Parole status logically explains police knowledge and supports context | Admissible; within 404(b) framework |
| Pretrial identification reliability | Photo-array identification was unduly suggestive | Procedure was not unduly suggestive; identification reliable | Not unduly suggestive; identification admissible |
| Lesser-included-offense instruction | Court should have instructed on a lesser included offense given misidentification defense | No abuse; misidentification defense would not support a lesser charge | Refusal to give instruction proper; no reversal |
Key Cases Cited
- United States v. Jimenez, 224 F.3d 1243 (11th Cir. 2000) (inextricably intertwined vs extrinsic evidence balancing test)
- United States v. Ellisor, 522 F.3d 1255 (11th Cir. 2008) (three-part 404(b) admissibility test)
- United States v. Mitchell, 666 F.2d 1385 (11th Cir. 1982) (considerations for probative value vs unfair prejudice)
- United States v. LeCroy, 441 F.3d 914 (11th Cir. 2006) (time gap and incarceration reduce probative value of prior acts)
- United States v. Lampley, 68 F.3d 1296 (11th Cir. 1995) (admission of Rule 404(b) evidence with time gap considerations)
- United States v. Brown, 441 F.3d 1330 (11th Cir. 2006) (limits and review of voir dire and discovery-related rulings)
- Cikora v. Dugger, 840 F.2d 893 (11th Cir. 1988) (two-step analysis for eyewitness identification procedures)