UNITED STATES OF AMERICA, APPELLEE v. BRYAN BURWELL, AARON PERKINS, MALVIN PALMER, CARLOS AGUIAR, MIGUEL MORROW, AND LIONEL STODDARD, APPELLANTS
No. 06-3070
Unitеd States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 17, 2011 Decided April 29, 2011
Consolidated with 06-3071, 06-3073, 06-3077, 06-3083, 06-3084
Appeals from the United States District Court for the District of Columbia (No. 04cr00355-05)
Stratton C. Strand, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, Roy W. McLeese III, Daniel P. Butler, and Stephanie C. Brenowitz, Assistant U.S. Attorneys.
Before: HENDERSON, TATEL and BROWN, Circuit Judges.
Opinion for the Court by Circuit Judge BROWN.
BROWN, Circuit Judge: The relatively routine legal questions presented by this appeal arise from quite an unusual set of facts. Appellants are modern-day bank robbers whose old-school tactics—more reminiscent of the brashness of John Dillinger than the subtlety of Willie Sutton—included subduing innocent bystanders with gratuitous gunplay, pistol whipping a victim, and peppering a pursuing police car with bullets. When the aftermath of their final robbery was cаptured on film by a TV station‘s news camera crew, the robbers were apprehended a few weeks later, convicted by jury of numerous crimes, and sentenced to various terms of imprisonment. They now assert assorted infirmities in both the trial and their sentences. We affirm.
I
Because “brevity is the soul of wit,”1 we offer only an abbreviated version of the essential facts underlying this appeal. The six Appellants, along with co-conspirators-turned-government-witnesses Nourredine Chtaini and Omar Holmes, indulged in a violent crime spree throughout the District of Columbia metro area that lasted for nearly a year and a half. Appellants, who began by cultivating and selling marijuana, evolved into a ring that committed armed bank robberies, using stolen vehicles to travel to the targeted banks and make their escapes. By the summer of 2004, the robbers had developed
After their apprehension, a grand jury issued a twenty-count indictment charging Appellants with racketeering conspiracy, armed-bank-robbery conspiracy,2 four armed bank robberies, two assaults with intent to kill, and various weapons crimes. Following a lengthy trial, a jury convicted eaсh defendant of RICO conspiracy under
At sentencing, the district court prescribed life imprisonment for Morrow. As for the other defendants, Stoddard received 725 months’ imprisonment; Carlos Aguiar, 720 months’ imprisonment; Bryan Burwell, 495 months’ imprisonment; Aaron Perkins, 417 months’ imprisonment; and Malvin Palmer, 512 months’ imprisonment. The court also sentenced each defendant to a term of supervised release and ordered the defendants to pay restitution, jointly and severally. The defendants now appeal, alleging an assortment of errors in both their trial and sentencing proceedings.
II
Although Appellants raised numerous issues on appeal, only two of those arguments have arguable merit. We limit our discussion accordingly.
A
During the trial, the government sought and gained admission of a hoard of “other crimes” evidence. The Appellants now argue the admission of this evidence was in error, both because it was offered for an impermissible purpose and becausе its probative value was substantially outweighed by its prejudicial effect. We disagree.
We must first confront Appellants’ argument that before permitting the government to introduce other crimes evidence, the district court had “to rule preliminarily that the jury could reasonably find . . . by a preponderance of the evidence” that Appellants committed the uncharged acts. Appellants’ Opening Br. at 18. Appellants are correct that when the government seeks to introduce evidence that a defendant committed another crime, that evidence is only relevant, and hence potentially admissible, if a reasonable jury could find by a preponderance of the evidence that the defendant, and not someone else, was responsible for the crime. See Huddleston v. United States, 485 U.S. 681, 690 (1988); see also
The evidence admitted under Rule 404(b)3 falls into three broad categories: evidence of Appellants’ commission of three carjackings; evidence of Appellants’ theft of forty cars; and evidence of Appellants’ use of false names, as well as their marijuana cultivation and distribution. The district court admitted the evidence of the carjackings, false names, and marijuana cultivation and distribution for a variety of purposes, including the theory that it demonstrаted Appellants’ modus operandi and identities. We agree with Appellants that admission for either of those purposes was improper.
Although not listed in Rule 404(b)‘s nonexclusive list of proper purposes, modus operandi evidence is normally admitted pursuant to the identity exception. See United States v. Carr, 373 F.3d 1350, 1353 (D.C. Cir. 2004); United States v. Crowder, 87 F.3d 1405, 1413 (D.C. Cir. 1996), rev‘d on other grounds, 519 U.S. 1087 (1997). But evidence of modus operandi must be unique; “the Government must establish not only that the extrinsic act bears some peculiar or striking similarity to the charged crimes, but also that it is the defendant‘s trademark, so unusual and distinctive as to be like a signature.”4 Crowder, 87 F.3d at 1413 (quotation marks omitted). The Appellants’ use of violence and weapons is, unfortunately, not so unique to crimes in the District of Columbia that it constitutes appropriate modus operandi evidence.
Nor was their use of guns and violence so distinctive that it demonstrated Appellаnts’ identity. To be relevant to identity, the other crimes must share similar characteristics with the charged acts. United States v. Lawson, 410 F.3d 735, 741 (D.C. Cir. 2005) (admitting other crimes evidence to prove identity in a charged robbery when, during both the charged and uncharged robberies, there were two robbers—one tall and one short, the tall robber wielded a distinctive gun, the short robber collected the money, and the tall robber wore the same clothing). As with modus opеrandi, the naked use of violence and weapons, without more, does not rise to the level of similarity necessary to make the other crimes evidence relevant to identity.
But just because evidence is inadmissible for one purpose does not mean it is inadmissible for another. See, e.g.,
The one рiece of evidence that gives us pause is the admission of the “Silver Spring” carjacking. This carjacking incident involved Appellant Morrow, and co-conspirators Chtaini and Holmes. In November 2003, while driving around near Silver Spring, the trio decided to steal a Mercedes S5 because Morrow‘s brother and chop-shop owner, Romell Morrow, had informed them he would pay top dollar for a car of that mоdel. The men encountered one S5, but chivalrously decided against stealing it because it contained a female passenger. When they encountered a second S5, this one being driven by a man, they decided to follow it. The car reached a back road in Silver Spring, at which point Chtaini, who was driving, lightly struck the car‘s bumper so the driver would pull over. The three men exited their car wearing masks and carrying guns. They subdued thе driver and jumped into the S5, only to find the driver‘s two grandchildren in the backseat. The men removed the five-year-old boy and two-year-old girl from the S5 “in a gentle way,” and then drove away leaving their old car behind. (Tr. 5/23/05AM at 5223).
In determining this evidence was admissible under Rule 403, the district court‘s explanation is somewhat terse. In fact, it does not even mention explicitly the possible prejudice arising from the sympathetic nature of the viсtims. Morrow, 2005 WL 3159572, at *18. Arguably, the fact that Morrow forcibly stole a car from a grandfather and his two young grandchildren could have struck the jurors as particularly egregious. The district court should have considered this in its Rule 403 analysis. Nonetheless, we do not think the district court‘s Rule 403 conclusion amounted to grave error. The prejudice resulting from the carjacking evidence is slight when compared to the evidence of the violent aсts for which Appellants were indicted.6 Cf. Mahdi, 598 F.3d at 892. Moreover, the district court gave numerous and careful limiting instructions, which we think cure any potential prejudice. United States v. Perholtz, 842 F.2d 343, 361 (D.C. Cir. 1988) (“[I]t is the law, pure and simple, that jury instructions can sufficiently protect a defendant‘s interest in being free from undue prejudice.” (quoting United States v. Daniels, 770 F.2d 1111, 1120 (D.C. Cir. 1985) (Starr, J., concurring))).
The district court did not abuse its discretion in admitting other acts evidence.
B
Appellant Burwell argues the government presented insufficient evidence to support his conviction under
Burwell‘s § 924 conviction arose out of his participation in the June 12, 2004 robbery of Industrial Bank. Because the gun he used was a machinegun, Burwell received the thirty-year sentence, in addition to his other sentences. He asserts two arguments on appeal. First, Burwell contends the government рresented insufficient evidence that he carried the AK-47 with two handles (the machinegun attributed to him) during the Industrial Bank robbery. Second, he argues that even if the government satisfied its burden of proof as to his weapon, the government failed to show he knew the gun was capable of firing automatically.
Burwell‘s first contention is an attempt to reargue the facts. Chtaini testified Burwell carried the two-handled AK-47 during the Industrial Bank robbery. Granted, this testimony arguably conflicts with that of the bank manager. The bank manager, who admittedly “did not know much about guns,” (Tr: 4/21/05PM at 1916) testified that the man who asked her for the keys to the vault was carrying the two-handled AK-47, and Chtaini testified that it was he and Morrow who went to the vault area. If true, then Burwell could not have been carrying the AK-47 with two handles. Nonetheless, it is not our responsibility on appeal to resolve factual discrepancies. That task falls in the first instance to the jury. Green v. United States, 289 F.2d 765, 766 (D.C. Cir. 1961) (per curiam) (“In our jurisprudence the credibility of witnesses and the derivation of the truth from oral testimony are reposed in the hearer of the witnesses.” (citation omitted)). Where, as here, it was entirely reasonable for the jury to have credited Chtaini‘s testimony over the bank manager‘s, that assessment is beyond reproach. See Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 561 (D.C. Cir. 1993) (explaining where the jury acts reasonably, “[r]esolving [factual] discrepancies . . . is quintessentially a matter for the jury“). Because Chtaini was intimately involved in the planning and execution of the robbery, the jury reasonably could have credited his testimony over the bank manager‘s, especially as the manager was under duress and observed the weapons only briefly in comparison to Chtaini.
Burwell‘s second argument fails on the law. We have squarely held that a dеfendant need not know the weapon he is carrying is a machinegun for a § 924(c)(1) conviction to stand. United States v. Harris, 959 F.2d 246, 257–59 (D.C. Cir. 1992). In United States v. Harris, we considered whether the government must prove the defendant knowingly possessed a machinegun to sustain convictions under
Burwell insists that Harris has been undermined by two subsequent Supreme Court cases, Staples v. United States, 511 U.S. 600 (1994) and United States v. O‘Brien, 130 S. Ct. 2169 (2010). Staples, however, merely held that to obtain a conviction under
Burwell also relies on the Court‘s recent decision in United States v. O‘Brien, where the Supreme Court held that, under
Nor does O‘Brien‘s characterization of the machinegun provision as an offense element trigger the “presumption in favor of mens rea.” Harris, 959 F.2d at 258. This presumption applies with the most force to “statutory elements that criminalize otherwise innocent conduct.” United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994). Unlike with
C
We have fully considered the rest of Appellants’ arguments and find them to be without merit. Appellants’ arguments contesting the admission of bias/cross-examination evidence, the denial of their severance motion, the exclusion of extrinsic evidence, the objections sustained during their closing arguments, the sufficiency of the evidence supporting their cоnvictions, and the consecutive nature of their sentences are rejected.
III
For the reasons stated, the convictions and sentences are
Affirmed.