United States v. Clay, 667 F.3d 689

United States v. Clay

667 F.3d 689

6th Cir.

2012

Check Treatment

Docket

*3 nessee to the case. He soon learned that KETHLEDGE, and MOORE Before: an hour after car was stolen about MARBLEY, District Judges; Circuit attempted someone to use White’s stolen Judge.* Phillips Bank of America and card Conoco at a First Tennessee Bank ATM. The MARBLEY, D.J., opinion delivered the surveillance showed that Bank’s video a J., court, MOORE, joined. in which unshaven, African wearing American man KETHLEDGE, 702-05), (pp. J. delivered patterned a red and white shirt and a dissenting opinion. separate a jacket attempted to use hooded OPINION cards. Officer Hennessee obtained still video, compared from the photos ATM MARBLEY, L. District ALGENON Clay’s Gary photo, them to license driver’s Judge. they and determined that were the same Defendant-Appellant Gary Clay appeals person. his and brandish- convictions days searching, After officers located firearm, ing contending that the district a Prix in parking lot of the Grand admitting prior in evidence of court erred complex. Lake Courts housing They East acts, denying bad in his Rule 29 motion for the vehicle conducted surveillance on denying acquittal, and in his motion for apartment with which determined at sentencing. variance Be- downward They car was associated. went to that admitting cause the district erred women, apartment and were met two bad acts and the errors Abernathy Miranda and Valerie Hancock. harmless, were REVERSE apartment in the Clay was arrested REMAND a new trial. convictions and incident. without I. BACKGROUND Hancock, lessee, consented to a 2007, Kathryn apartment. of the Officers located White worked search items, keys to Chattanooga, including Internal Revenue Service several she at Prix and stolen reported Tennessee. When arrived work Grand items Prix, robbery. Ameri- the Grand morning of November an African recent Inside her approached compact containing can as she exited her officers found disc male family. man with friends and pictures white 2003 Pontiac Grand Prix. The pictures, of the pointed wearing a silver semi-automatic In several he was patterned out A white her ordered her of the car. eo- a red and shirt. Ohio, sitting by Algenon Marbley, designation. L.

*The Honorable Judge for District States District the Southern agreed Officer Hennessee traced the items re- The court also to provide limiting ported robbery stolen to a of two vehicles instruction before Marshall’s testimony.1 parking a Cricket Communications lot. Second, Clay sought to any exclude evi- belonged to Steve Moser. first vehicle relating dence to the theft of Moser’s case, A handgun, handgun and Motorola handgun from his truck. The district court phone missing cell were from his truck admitted evidence of the uncharged theft police after the break-in. While found the gestae under both the res doctrine and lot, they case in bushes near the never 404(b), and issued a limiting instruction gun. recovered the The second vehicle prior to the evidence’s introduction.2 belonged Archey. A Ronald checkbook *4 trial, At Officer Hennessee testified portable and player missing DVD were investigation. about his Abernathy, who from his car. police The located these two in apartment, lived testified that she apartment items in the they where found Clay saw with a semi-automatic handgun Clay. A surveillance video from the lot during general period time of- showed an African American wearing man fense. She also Clay testified that she saw patterned a red and white breaking shirt driving a Pontiac Prix during Grand this walking away into the cars and with the period, same time and pic- when shown a handgun case. The red and white shirt car, stated, ture of White’s the car “[t]hat’s shirt was similar to compact on the Means, witness, he parking drove.” lot disc in found the Grand Prix and the shirt positively identify could not suspect. worn in the video from the First Tennes- White died in a car accident before the see Bank. trial. There is no indication in the record grand jury A charged Clay carjack- any that she made identifications. ing in § violation of 18 U.S.C. 2119 and case, At the close of government’s Clay brandishing a firearm during a crime of made a Rule 29 motion. The district court violence in violation of 18 U.S.C. denied the motion. 924(e)(l)(A)(ii). § proceeded The case trial, Clay testify, did not presented but he and the district court pre- made two Evans, four witnesses. trial Gail an rulings that are at IRS em- issue First, ployee appeal. who was also in Clay sought parking lot that to exclude morning, evidence of an assault he testified that she previously had committed had against carjacker 5'8", described the Karissa Marshall as clean sha- ven, district court admitted Marshall’s and of medium complexion. day testimo- A 404(b) ny under Clay’s Rule to show after spe- carjacking, she photo- reviewed a intent, cific prevented but graphic lineup, which Clay. included She from informing jury that had identified an individual that she was 50% been assaulting convicted of Marshall. sure was the she saw 1. The jury district court instructed pose showing might how have ob- testimony light, Marshall's you was "to shed handgun, tained the as well as to show testimony believe any light, her sheds on preparation The court further requisite whether [the defendant] had the in- explained was not on trial tent to cause death or serious harm in stealing anything else from connection with the November 2007 inci- truck, only carjacking, but and so dent, not the incident that Ms. Marshall is jury was not to consider the evidence for going testify about.” propensity, only but to consider it for the purposes limited described. 2. district court instructed the the video was pur- admitted for the limited 136, 141, Clay. It also Evans S.Ct. 139 L.Ed.2d 508 was trial, (1997); Ganier, that week before she testified (6th Cir.2006). standing of two Because the dis- photograph men shown multi-step analysis trict court uses a his friend to each other: next Smith, determining whether to admit identified who Adarius Smith. She evidence, however, 5'8", we also three- carjacker. utilize a step reviewing these process determina- Clay was The evidence established that First, we for clear tions. review error the brother, 6'1" and 6'2". between factual determination other acts oc- Clay, right- that Clay testified Gregory Second, curred. we review de novo the tattoos, handed, always has two wears legal determination that the acts were ad- cross-examination, On he was a mustache. permissible missible for a purpose. letters from shown written Third, we review abuse of discretion Starkey, the of his jail to Jessica mother the determination that the value letters, Clay In the Ms. Star- child. asked substantially of the evidence is not out- construct an alibi for him and to key to by unfair weighed prejudicial impact. on blame the Adarius Smith. *5 745, v. Hardy, United States 228 750 F.3d guilty found on both (6th Cir.2000). counts. The court sentenced him to 360 imprisonment. months of Finally, this Court reviews de novo a district court’s denial of a Rule 29 motion II. AND LAW ANALYSIS judgment acquittal on the based insufficiency A. Standard of Review of the evidence. United 372, 279 Humphrey, States v. F.3d 378 A district determines the admissi- (6th The Court must construe 404(b) pursu- under Rule bility evidence light evidence most favorable to a three-step process. ant government, and then determine First, court must decide district any trier of whether rational fact could whether there is sufficient evidence have found essential elements of the actually oc- question the other act in beyond crime a reasonable doubt. Jack Second, so, if curred. the district court 307, 319, Virginia, son v. 443 U.S. 99 S.Ct. must decide the evidence of the whether 2781, (1979); 61 L.Ed.2d 560 act is of a issue probative material 316, (6th Hofstatter, 8 F.3d Cir. Third, other than character. if the evi- 1993), denied, 1131,114 510 U.S. S.Ct. cotí probative of a issue dence material (1994). 1101, 127 L.Ed.2d 413 A defen character, other than the district court heavy very “bears burden” dant must decide whether the value sufficiency of challenge. substantially out- of the evidence is Davis, 340, States v. United by weighed potential prejudicial ef- (6th Cir.2005) (internal omitted). citations fect. Jenkins, 928, F.3d B. Act: Other Assault (6th Cir.2003) (citing United States v. 715, (6th Haywood, 280 F.3d 719-20 Cir. Federal of Evidence allows 2002)). to introduce crimes, wrongs, court’s or acts” committed typically review district “other We long evidentiary rulings by for an of discre- the defendant so abuse Joiner, merely if propensity to show tion. General Elec. Co. v. 522 U.S. not used minations, upon “bears a relevant issue in the this court reviews de novo the Hardy, case.” 228 F.3d at 750. The Rule court’s conclusions of law.” United States McDaniel, 540, contains a non-exhaustive list possible Cir. 2005). “motive, intent, purposes: opportunity, The court in McDaniel confirmed preparation, plan, knowledge, identity, or that “this standard is consistent with the Supreme absence of mistake or accident.” Fed. Court’s admonition in General 404(b). Joiner, R.Evid. Such evidence “is Elec. not ad- Co. v. 118 S.Ct. (1997) missible to the character of a 139 L.Ed.2d 508 that we review in order action in conformity to show decisions for an abuse of dis cretion, therewith.” Id. because it is an abuse of discretion to make errors of law or clear errors of Clay argues that the district court erred factual determination.” Id. admitting the evidence of Septem- ber Indeed, 2006 assault of Karissa Marshall pur- this Circuit has been consistent 404(b). trial, suant to Rule At in adopting Marshall interpretation McDaniel’s See, testified when she was a car Geisen, driv- Joiner. e.g., United States v. cert, Clay pulled alongside en her as she was Cir.2010), de- — walking nied, to a stop -, bus and asked her she U.S. 131 S.Ct. (2011) resisted, wanted a ride. When she the L.Ed.2d 772 (reviewing the district got car, her, grabbed driver out of the legal court’s determinations de novo and hit her in the gun. face with a error, The blow its factual decisions for clear holding unconscious, knocked her and she told “that these two standards of review are jury, thought “I I going to die that not in conflict as ‘it is an abuse of discre- *6 day.” tion to make errors of law or clear errors

of factual determination’ in evidentiary rul- 1. Sufficient Evidence That McDaniel); ings”) (citing United States v. Other Acts Occurred Martinez, (6th 301, Cir.2009) 588 F.3d 309 (following approach McDaniel’s First, “re- we must review for clear error the viewing de novo the court’s conclusions of district court’s determination that there is law,” reasoning that the extent “[t]o “sufficient support evidence to finding by district court’s admission of the Boswell the defendant committed” video law, constitutes an error of such States, the assault. Huddleston v. United discretion”); error is an abuse of United 681, 685, 1496, 485 U.S. 108 S.Ct. 99 Baker, (6th 513, States v. 458 F.3d (1988). 517 L.Ed.2d 771 The assault of Mar- Cir.2006) (adopting interpreta- McDaniel’s shall is undisputed, so no discussion is tion of by Joiner “pointing] out that these needed as to step one.

two standards of review are not in fact Purpose Permissible inconsistent because ‘it is an abuse of dis- cretion to make errors of law or clear Second, we review de novo whether ”) (cita- errors of factual determination.’ the evidence was admitted for a proper omitted). tions 404(b) purpose. It is well-established that this determination is a question of law. The dissent urges us apply instead to an See Ayoub, 532, United States v. 498 F.3d abuse of discretion standard in deference cert, (6th Cir.2007), denied, 548 555 U.S. to the district court. The dissent grounds 830, 37, (2008). 129 S.Ct. 172 L.Ed.2d 49 position its in a reading of Joiner that has This Circuit has position taken the that “in not adopted been in this Circuit is in reviewing a trial evidentiary court’s deter- derogation of McDaniel and progeny. its sary taking to of bootstraps complete then this insular the car.” The dissent Joiner, Holloway (quoting Id. at United relying of on United States reading States, 1, 11-12, Jenkins, holding U.S. S.Ct. which cites Joiner’s (1999)). to satisfy L.Ed.2d 1 In order subject to evidentiary rulings “all are requirement, the government sought this not review” but does abuse-of-discretion to to use assault Marshall show that of review the trial discuss standard specific had the intent to cause seri- legal proper determination of the court’s bodily harm or death to ous White. (6th 593 F.3d purpose, Cir.2010), Trepel Exp. v. Roadway matter, ap- As a threshold we have Joiner, Inc., hearsay which held after proved the admission of acts evi- evidentiary rulings must be reviewed specific dence to show intent certain 194 F.3d an abuse of discretion. circumstances. See United States v. John- cert, cases, however, son, The dissent’s 1186,1192 Cir.1994), denied, to McDaniel line of apposite are 115 S.Ct. First, (1995) simply (holding cases. Jackson recites Join- L.Ed.2d 792 that “where upon government, general er’s abuse discretion standard there thrust ei- determinations, by evidentiary which ther virtue of defense raised by virtue defendant or elements of Secondly, we. McDaniel follows so do charged, duty the crime affirmative simply Trepel took McDaniel over where underlying prohibited act by clarifying that left off abuse intent, specific was done with a criminal determina- discretion review may other acts be un- introduced which commands is not incon- tions Joiner 404(b)”). frequently, der Rule Most abiding duty the court’s sistent with drug involving admit cases questions of novo. McDan- review law de possession offenses such as with intent to iel, supra. The dissent distribute, conspiracy distribute or split precedent in our wishes create charged when the offenses are identical. one It is unneces- where need exist. See, Love, e.g., Fed. dis- sary address remainder *7 (6th Cir.2007) (defen- 511, Appx. 515-20 arguments they predicated are on sent’s prior drug dant’s convictions to admissible heightened grants it deference to in a participate conspiracy show intent to court’s district decisions pleaded had to guilty where defendant standard of This the erroneous review. engaging conspiracy in a to distribute co- Court, accordingly, reviews district Conteh, caine); United States v. 234 Fed. 404(b) a proper court’s determination of (6th Cir.2007) 374, (finding Appx. 384-85 purpose novo. de of testimony no error in the admission statute, carjacking federal 18 bank fraud about defendant’s Colorado 2119, § requires to U.S.C. prosecution scheme Ohio bank prove specific that a defendant had the Johnson, scheme); fraud 27 F.3d at 1192- bodily to intent cause serious harm (finding no error in the of admission death when he or she took the victim’s car. possession other acts of with intent to Fekete, 471, 535 F.3d prosecution distribute in a the same (6th Cir.2008). words, Pierce, offense); gov other United States v. 16 F.3d (6th “prove beyond (Table), ernment must reasonable 1993 WL *3 Cir.1993) would have at no in the (finding doubt that defendant error admis- seriously past to harm or kill of to show intent of attempted least sion to prosecution attempt if that neces- the driver action been sexual abuse White; they merely commit abuse when victim was the to show sexual the criminal same); Cracky, Clay. States v. character of United United See States v. Cir.1986) (6th Bell, Cir.2008) error in (finding no (holding of evidence of admission conversations that Rule evidence is pro- prior relating only about acts to counterfeit bills of intent prior bative “when the [acts] prosecution possession part of counterfeit were of the same scheme or involved money delivery money). operandi present counterfeit a similar modus as the offense”). may act prior While a be rele- consider, however, yet We to have vant in other to specif- circumstances show whether bad acts are to prior admissible carjacking, ic intent in a the assault of specific bodily show intent to cause serious permissi- Marshall not admissible for a in carjacking harm or death case. Other 404(b) purpose ble in this case. The dis- may prior circuits have found that acts be admitting trict court erred in the evidence. specific admissible to to show intent cause carjack- harm or serious death in a Prejudicial/Probative Balancing circumstances, ing case in narrow such as The district court admitted the evidence when prior nearly acts occur simulta- the assault purpose. for an improper neously charged with the or when offense 404(b) analysis Our does not have pro- to they involve the same victim. See United ceed, but in firmly order to establish that Rodriguez-Berrios, F.3d occurred, error we continue to the final (1st Cir.2009) (evidence 63-64 about step. stalking carjacking abuse and victim specific admissible show intent in step The third analy- offense); requires v. Bas- States sis us to determine whether the ham, Cir.2009) prejudicial unfair impact (threats of substantially violence made crime outweighs value. spree were admissible to specific show in- Evidence acts undoubtedly bad tent to kill or to harm powerful cause serious on impact juror’s has a mind. victim carjacking, which dur- explained, occurred As have previously “[w]hen ing spree). introduced, prior acts evidence regard- purpose, less of stated the likelihood is cases, on Relying govern these very great jurors will use the ment argues that the assault is admissible precisely purpose may it specific intent because shows suggest not be considered: develop could intent cause defendant is a person, bad a convicted *8 serious harm to strangers innocent ‘ criminal, and that if “did it he before he who resist Considering his demands. both ’” probably did it again.” United States v. the case and purposes law of Rule Johnson, (6th 1186,1193 Cir.1994), 404(b), sweeps broadly this too and risks cert, denied, 115 S.Ct. eroding very the Rule’s purpose. It (1995). 130 L.Ed.2d 792 While a limiting perches perilously proving close to specific instruction can minimize prejudicial by showing intent propensity, sug as it acts, of impact prior criminal it is not “a gests person that a who engages bad panacea prejudice sure-fire result- behavior likely toward another is to do so ing from needless of admission such evi- again. The two offenses at issue—assault Haywood, dence.” F.3d at 724. and carjacking too unrelated and too —are far apart probative in time to be of wheth This of probative evidence was slim er Clay specific evaluation, had the intent to do harm In making value. this we con- ”) charged (quoting crime’ are alternate sources whether there sider Haywood, F.3d Amaya-Manzanares, facts. See proving the same of (1st Cir.2004) (Torruella, 723; J., dissenting)); also United States v. F.3d at see Merriweather, Ordover, Balancing Cir. see also Abraham P. 1996) (“One prej- balancing Presumptions factor in unfair Guilt and Inno- 101(b), 608(b) 609(a), against value under Rule cence: Rules and probative udice (1989). availability Emory means of 403 is the L.J. 175-78 Here, case, differing about Means testified this nature of the proof.”). suggested verbal threats and use was perpetrator’s crimes a re- Thus, the evi- gun during carjacking. peatedly violent offender. This created necessary not jury of the assault was to risk that the used dence serious the ev- Clay had intent. specific precisely show that idence for reasons it was counseled not to: was a bad contrast, By extremely this evidence was Thus, society. and threat to unfair; prejudice must be prejudicial. prejudicial impact unfair of the evidence “paint[ it must do more than the defen- ] substantially outweighed its slim proba- light.” in a bad United States v. dant tive value. Sanders, 449, 453 case, In this the evidence the assault is As the evidence of the assault was charged permissible purpose so unrelated to offense that it admissible for a much risk jury creates too of a that the unfair im- prejudicial and its generalize prior examples pact outweighed value, from probative will bad its goes beyond It elements of find character. that the district court erred admit- government’s ting proof essential case the evidence. making lure the may into its Uncharged Act: C. Prior guilt

determination of or innocence on Handgun Theft proof unrelated argues district erred discretionary, Balancing highly in admitting evidence of the theft of the great thus the district court “is afforded handgun from Moser’s car. The court ad- Bell, deference.” 516 F.3d at 445. De- gestae mitted the evidence under the res deference, spite this substantial the dis- exception under Rule show trict court abused discretion ad- preparation and mitting the evidence of assault. As supra, explained 1. Res Gestae charged particularly of- necessary recognized fense. Nor is it We have admissibili ty evidence, specific gestae, background intent harm White. res contrast, By prejudicial unfair im- limited circumstances when the evidence “inextricably As that is pact high. em- includes conduct inter shown, pirical charged have evidence of twined” with the offense. studies *9 (6th 745, prior Hardy, bad acts influences factfinders even States v. 748 gives limiting exception when a instruc- this is an the While rule 404(b), Hardy, id. at tion. See United States Rule see does (6th 404(b) Cir.2011) (Cole, J., party by allow introduc a to evade evidence, ing any and all other act see dissenting) (stating “empirical stud- Buentello, Fed.Appx. ‘juries prior ies confirm that treat bad United States v. Cir.2011) (6th (noting “the probative as of the highly acts evidence 404(b) Rule prompted are rate and distinct offense that is not essen- concerns real, rely very party may and a on tial providing intelligi- [the a “coherent and a gestae] exception res as backdoor to ble description charged the offense.” goals”). principle The con- circumvent § on McCormick Evidence “temporal ed.2006). tains as to severe limitations relationship, proximity, spatial causal or government The relies on two cases among connections” the other acts and the prior which involving acts a charged Hardy, offense. 228 F.3d at 749. gun pursuant were admitted the res general categories Examples may gestae exception to show that the defen- satisfy requirements these include evi- dant had access to a in the gun charged a prelude charged dence that “is to the cases, offense. In both of these there was offense, directly probative is the no dispute weap- that the defendant the offense, charged from arises the same on were same. See United States v. offense, charged events forms an Brown, Fed.Appx. Cir. integral part testimony, of a witness’s or 2001) curiam) that, (per (holding pros- a completes story charged of the of- ecution for firearm possession of a a fense.” Id. felon, convicted assault defendant’s with Here, Clay charged evening the firearm the the charged was with car before jacking necessary “complete and firearm offense was brandishing during a story carjacking. and in relation to the that Brown possessed order Mitchell, counts, gun”); on government convict both United States v. (10th Cir.1980) that, (holding to establish that did in fact prosecution Eyewitness possession brandish a firearm. an testimony unregis- firearm, tered carjacker established used a evidence of an armed silver rob- bery semi-automatic committed with handgun during the inci the firearm was ad- missible). witness, words, dent. Another In other Abernathy, there testi was fied that she saw confirmed link between semi-auto act and day Here, matic the charged gun either of or offense. day has never carjacking. before the been found and no link such exists. Thus, argues that the the trial court uncharged evidence of abused its discretion necessary theft complete admitting was evidence of the theft un- story der explain gestae exception. the offense and how the res ob handgun. tained the 2. Rule argument

This logically flawed. Having determined that the video could There no firmly evidence that estab- not have been admitted ges- under res lishes a relationship carjack- between tae exception, we now examine whether it ing and the theft. gun stolen from was properly admitted recovered, Moser’s car was never purposes showing preparation nothing weapon confirms that stolen As explained swpra, the gun Abernathy Clay, saw with or the analysis requires three-part test. gun used Without same, confirmation that the is the gun a. That Sufficient Evidence car theft is neither a prelude to the Other Acts Occurred offense, charged nor of it. It First, does not arise from the same events as must determine whether there *10 fact, in carjacking; completely sepa- is a is support finding “sufficient evidence to a handgun Clay then that used that that defendant committed” infer jury the the jury carjacking. act. Huddleston v. United the Even the reaches the other 1496, States, conclusion, 108 S.Ct. there no the first evidence (1988). government the 99 L.Ed.2d that enable them reach sec- would any merit this factor does not argues guns that ond. The fact that both were silver dispute there is no that discussion because enough. is not Guns do not come a wide from Moser’s handgun the was stolen colors. This variety piling inference days carjacking. before the truck three exactly upon calling inference is the us; the issue is This is not the issue before kind of determination that Rule propensity occurred but wheth- not whether theft to prevent. was intended See Hud- Clay evidence that er there is sufficient dleston, 485 U.S. at 108 S.Ct. 1496 Clay the act. was never committed may that (noting [not] “the Government are charged There two offense. litany jury potentially a parade past that link him to the pieces of evidence that been prejudicial similar acts have es- One, the video shows crime. surveillance to the tablished or connected defendant patterned a in a and white that man red innuendo”). only by unsubstantiated cars, police recovered shirt robbed Thus, of the theft was not red and wearing similar photos of properly prepara- as evidence of admitted Two, items stolen patterned white shirt. tion. apart- in the Archey’s from car were found identity, next Turning in. links ment was located These are acts allows the introduction evi- best, and even more tenuous tenuous at identity, “provided they dence to show are dispute parties whether the because similarity’ with ‘of sufficient distinctive Archey’s car admissible. evidence from charges pat- in the indictment to ‘create however, one, step purposes For the ” tern modus operandi.’ United States clearly in finding did err district court not (6th Cir.2010) Allen, 518, 524 reasonably could conclude that jury that (quoting Perry, from the car. handgun stole the Cir.2006)). government 404(b) Purpose b. Permissible argues relating to the handgun theft shows that Second, must wheth we determine theft, responsible for the which turn relating theft of the er carjacking. that he committed the shows handgun proper pur was offered argument This contains the same flaw as Look poses preparation argument preparation: about there is first, we ing preparation have allowed no evidence stolen from admission of other acts evidence to Moser’s truck was used items show how the defendant obtained Thus, evidence from theft of hand- offense. See United charged used in the gun help identity does not establish the Hembree, Fed.Appx. carjacker. sug- While the Hembree, approved In 404(b) gests patterned the red and white the admission of evidence both offenses and shows shirt connects a stolen car driving that the defendant was responsible, that the same man was with- case, however, In that when arrested. Id. evidentiary link or out a substantiated car was the car it was clear the stolen mass-produced Here, methodology, shared gov used the offense. a unique identity. shirt does establish ernment asked the infer car, sum, the crimes are so similar that handgun from Moser’s stole the *11 700 prejudicial mo- Rule its im-

they pattern or distinctive and because establish value, 438 648 operandi. Perry, pact outweighed probative See F.3d at we dus admission (affirming of other acts evidence find that the district court erred in admit- “signature”); a distinctive ting that established the evidence of the theft of the hand- Johnson, oth- (noting 27 1194 that F.3d gun. if perpe- is admissible the

er acts evidence D. Harmless Error employed operan- “the same modus trator Accordingly, operation”). method of di or Although the district court erred properly of the theft was not the evidence admitting the of assault evidence the identity. of admitted evidence of handgun, rulings theft “ probable are ‘harmless unless it more Prejudicial/Probative Balancing c. materially than not that the error affected ” The erred in district court admit Childs, the verdict.’ United States handgun of ting evidence of theft (6th Cir.2008) (quoting F.3d Unit purposes establishing prepara Daniel, ed States v. F.3d tion and anal Court’s (6th Cir.1998)). words, In other er “[a]n ysis to proceed, does not have but in order say, ror is harmless one can unless with occurred, firmly that establish error fair assurance that the error materially step. will continue with the final affected defendant’s substantial part, rights judgment was analysis For the most here substantial —that analysis ly swayed by the preceding mirrors the of the as- error.” United States v. (6th Cir.2001). assault, Murphy, sault. As with the evidence F.3d handgun the theft was of limited Our focus is not “with whether there was Additionally, probative value. was there sufficient evidence on which defen [the other, prejudicial, less evidence admitted dant] could have been without convicted trial possession of,” that of a complained the evidence rather but Abernathy gun. testified she saw “question is whether there is a reason handgun with before the possibility able com the evidence government’s occurred. If goal was to plained might have contributed that Clay show had obtained a DeSantis, conviction.” United States v. offense, the charged successfully (6th Cir.1998) (internal before it omitted). goal Abernathy’s achieved that testi- quotations particular, the ad mony. mission of evidence of acts is bad “ ‘harmless error’ the record evidence of prejudicial impact guilt any is overwhelming, eliminating fair high. great was was a There risk that the assurance that the conviction was substan suggested re- was a tially swayed by the error.” United States peatedly violent offender. This in- risk (6th Cir.2011). Hardy, possibility jury creased that the used precisely the evidence for the reasons case, proba In this is a high there to: counseled not was a bad bility wrongly that the admitted evidence Thus, society. and a threat to assault and the theft contributed prejudicial impact of the evidence substan- explained supra, conviction. As tially outweighed its slim probative value. value, evidence was limited layered upon

As the theft was not but it coincidence coincidence pursuant to gestae suggest admissible the res doc- to the was a or for a permissible purpose posed trine violent man who a threat to the

701 support Clay’s convictions for substantially existed to it This made community. 2009, 14, January carjacking and the convict jury that the would likely more during carjack- that brandishing firearm charged of him, the not on the evidence light that the ing, taking when evidence offense, Clay was a the that but on belief government. most favorable to See limiting instructions dangerous man. The (“The govern- at 324 Hofstatter, 8 F.3d mitigate poten- to these insufficient were of all rea- ment is entitled to the benefit instructing jury use By tial risks. that can be drawn from sonable inferences as back- gun of the theft evidence.”). evidence, and intent preparation, ground, implicitly approved district court 18 Clay To of convict was in the gun stolen used idea that the 2119, government § had U.S.C. absolutely no evi- carjacking. Yet there “(1) he: with intent cause prove that of in the dence record. (2) harm, took a death or serious (3) vehicle, transport- had motor that been of the admissible evidence While some ed, or in interstate or shipped, received carjacking, it was Clay to the connected (4) commerce, from the foreign the risks overwhelming. Thus far from (5) another; force and vio- presence evi- use inadmissible that would Fekete, 535 F.3d at lence of intimidation.” were even improper purpose dence for an brandishing 476. To convict Bell, None F.3d at 448. greater. See during to a crime of firearm and relation positively identified of the witnesses violence, that one witness identi- carjacker, he a firearm brandished the perpetrator. man as fied another U.S.C. charged may connect While the evidence 924(c)(l)(A)(ii). § itself, car none of ATM cards parking lot actually places it him the sufficiency In evi weighing the “ repeated offense occurred. The where the all Clay, we ‘must consider against dence mass-produced red and reference to the by the trial of the evidence admitted more, shirt, does patterned without white court,’ that regardless of whether evidence sum, we are not not establish erroneously.” v. McDaniel was admitted in this case the errors persuaded — 672, Brown, U.S.-, 130 S.Ct. impact was substan- were harmless. The (2010) (quoting Lockhart L.Ed.2d tial, thus, we is entitled find Nelson, 109 S.Ct. U.S. to a new trial. (1988)). This somewhat 102 L.Ed.2d 265 applies because standard counter-intuitive Sufficiency the Evidence E. for court’s reversal insuffi ‘appellate “[a]n in effect deter ciency district court’s de evidence review the We government’s case for ac mination nial of Rule motion defendant’s lacking so against the defendant was on insufficient evidence de quittal based judg court have entered F.3d at 378. De trial should Humphrey, novo. ” (citation omitted). Id. acquittal.’ ment identified non-harm spite having already ” “ reversal, analogy complete,’ there supra, To ‘make necessitating less errors fore, adjudge sufficiency insufficiency-of- must the Sixth Circuit considers before the “even a remand is same claims the-evidence defendant’s denied trial Patter district when necessary because of error.” (quoting Lock Haskins, acquittal. Id. motion son 285). hart, 42,109 More- case, S.Ct. In this sufficient over, insufficiency goods, “because reversal session of put stolen but does not Furthermore, to a equivalent judgment the evidence is of him the lot. did not *13 acquittal, such a reversal bars a retrial.” fit the description witnesses’ of the car- States, (citing jacker Id. Burks v. 437 U.S. him identify United and none could as the (1978)). 1, 18, S.Ct. perpetrator. L.Ed.2d evidence, however, The lack of Including challenged the direct evidence require length, above at at does the verdict be over- gov- discussed trial the that, turned. presented Clay, See United States v. ernment evidence inter 173,176 alia, Cir.2003); attempted use Ms. White’s Stone, (6th Cir.1984) bank one cards hour after her car was (“[Circumstantial inside; stolen the evidence can with cards Ms. White’s alone sus- guilty so, tain a Grand Prix was found verdict and that to do Clay’s later at resi- dence; circumstantial days carjacking Clay ten the evidence need not after remove every possession hypothesis except was found in reasonable keys of the to Ms. that of Callan, Prix; guilt.”); compact White’s Grand Fed. discs were Cir.2001) Appx. (noting found inside the Prix pictures Grand with generally of law wearing same “the the shirt he was makes no distinction when on between direct and wearing caught circumstantial evi- tape surveillance dence”) attempting cards; (unpublished opinion). to use Relying Ms. White’s bank on evidence, Abernathy Ms. the saw with a circumstantial the semi-auto- could matic have determined that around the time of the was the man in carjacking; parking lot. Ms. Means testified that carjacker pointed a semi-automatic sum, totality In pre- the evidence handgun at both her and Ms. Fi- White. sented, circumstantial, both direct and nally, Clay jail wrote letters from asking sufficient to allow “rational fact-finder” Starkey Ms. an construct alibi for him to infer that Clay had stolen Ms. WTiite’s to suggest man another committed Prix, Grand used a gun accomplish Jackson, theft. is all necessary S.Ct. That that is

The central thrust argument uphold sufficiency sup- for acquittal argues He porting jury’s of Clay convictions government presented insufficient evi- carjacking, and brandishing a firearm dur- carj dence that he was the acker. As the and in ing relation to a court crime violence. district noted in denying Clay’s mo- trial, tion new “particu- evidence III. CONCLUSION larly respect with to the issue of identifica- reasons, For foregoing tion—was circumstantial and we that at least RE- some Appellant’s Government’s VERSE RE- par- convictions and evidence— ticularly light with MAND for a respect testimony to the new trial. conclusion, eyewitnesses we conflicting.” do consider the two There —was any remaining assignments does not seem to be direct error. places Clay in parking lot where KETHLEDGE, Judge, Circuit the carjacking occurred. All of the evi- dissenting. dence that connects to the offense— cards, the ATM video Every presents location of trial its own field of keys, maneuver, the Grand Prix compact and the rising up issues differ- disc in the Grand puts Clay pos- places ent on the terrain. Some issues Prix — in this case determine what just certiorari heights, others are commanding reach arrayed appellate apply an should rise; have standard some gentle side, reviewing” have evidence decision densely each others on there). dis- layout, categori- the Court did so more thin. Whatever And than ground better knows the of discretion “[AJbuse trict court terms: cal understanding comes from do. Its of a district we standard of review proper in head- lines, we are back front whereas evidentiary rulings.” Id. at court’s great thus defer a tent. And quarters should follow that 118 S.Ct. 512. We judgment as to court’s *14 to the district deal here; I think we are directive clear piece of evidence particular whether just that know as simply wrong say to another, issue, in- or or aligns one certain as the district court whether well on field at all. belong the stead does proper pur- evidence is admissible in of all the issues and evidence pose light Clay’s majority manages the But here trial. I would defer to the district at the de novo afar. It reviews trial from 404(b), here and affirm. whether, the court’s decisions Rule question Clay’s admitted evidence district court The district court admitted evidence I be- for proper purposes. crimes that, days carjacking, before the three an of re- lieve that is incorrect standard in a park- into a truck pickup broke long- has a Although our court view. “shiny” ing lot and stole stainless steel regarding conflict standing intra-circuit handgun. nickel semiautomatic brushed review for ev- appropriate standard of the security-camera included This evidence 404(b), the under Rule identiary decisions footage showing an African-American man standard, submit, I is the deferen- correct wearing distinctively patterned red-and- every evi- apply that we other tial one Clay is shirt that matches the shirt white v. ruling. United States dentiary See in wearing photos police in later found (6th Cir.2010) Jenkins, 593 F.3d included a his home. The evidence also Joiner, (citing v. 522 U.S. Elec. Co. Gen. player DVD that were sto- checkbook and 136, 141, L.Ed.2d 508 118 S.Ct. lot, parking in len from a car the same Allen, (1997)); v. Clay’s in police likewise found (6th Cir.2010) (noting 524 n. home. has the three-ti- “repudiated this circuit court admitted this evidence district of review for ered standard because, against when viewed back- Joiner); of’ light Unit- determinations case, it in the drop F.3d Haywood, ed States identify as who helped Cir.2002) (rejecting precisely Kathryn days three after carjacked White majority that the em- standard of review See Fed. parking in the lot. the thefts today); Roadway Exp. Trepel ploys (providing that evidence R.Evid. (6th Cir.1999) Inc., 708, 716-17 for ... may be “admissible other crimes Joiner). very (citing Indeed the reason an identity”). Specifically, eyewitness granted certiorari why Supreme Court “shiny” carjacking testified (which usually thought as a Joiner from the gun that stole case) stainless steel straight Rule 702 set like” the “silver truck pickup “look[ed] departure from “tradi- Eleventh Circuit’s carjacker gun that semi-automatic” review” in re- tional ‘abuse-of-discretiori (Tr. 112.) days three later. there. brandished versing the decision shirt 512; And the red-and-white see id. at 118 S.Ct. also (‘We pickup ap- into the breaking while 138-39, granted wore S.Ct. earjacker the shirt pears identical to is walked to work. He her to into get asked wearing yet security-camera another car with him. She declined. ATM, from an about photograph alongside one continued drive her and or- —this hour carjacking, showing an after the dered her to stop. comply, She did earjacker trying began to use White’s credit got instead run. He out of Eventually cards. Hence this evidence was his car and her. chased he her, carjacker’s identity. caught her, of the toup grabbed Such was the and threat- district court’s of the evi- anything.” view issues and ened to kill her if she “s[aid] (Tr. 147.) Clay dence first-hand. pistol-whipped then girl striking jaw her fled. — —and majority disagrees, reviewing says de It nothing issue novo. “con- The district court admitted this evidence shiny proof firms” that the park- intent “to cause death or ing-lot video was silver carjack- one used in the serious harm” later, cax-jackingthree days ing, offense, and that the which is an element of the see *15 produced” § red-and-white shirt is “mass proof U.S.C. which is a 404(b). and so unique cannot “establish a peimissible purpose identi- under Rule 698, 700.) ty.” Op. (Maj. But Specifically, the test pis- the court found that the for whether this tol-whipping episode evidence was admissible sufficiently was anal- identity prove to is not whether it ogous confirms to the to support one an earjacker; Clay rather, that was the Clay inference that intended to harm Ka- merely thryn test whether the evidence “tends White or Ramona Means if White (The to make it more probable” that he was. comply did not his with demands. Bonds, See United States v. government proof F.3d on point needed (6th Cir.1993) (quotation Clay marks and not physically because did in fact omitted). woman; citation Even con- majority haxrn complied either White with demands.) that the supports cedes dis- his episodes, Clay both was trict finding Clay court’s that is the gun, approached armed with a a female stealing shown on gun parking-lot stranger, and made a demand. When the improbability video. And the that girl two did not with comply his demand in the dif- wearing the same distinctive episode, Clay up first followed with serious ferent men— guns shirt and possessing bodily that “look[ed] harm. episode Proof the first like” the same one—committed these thus supported Clay an that inference only days crimes three and two miles thing would have done the same had White apart, does to proba- “tend[ ] make it more complied not with his demand in the sec- ble” was the criminal in both. ond. Thus,

Id. the district court not did abuse majority disagrees, again conclud- in finding its discretion evidence of the ing de novo that the two offenses “too are parking-lot thefts prove admissible to unrelated and far apart too time” to Clay’s identity earjacker. I And do support that path inference. But the to think anywhere this evidence was near that conclusion through leads mire of inadmissible under Rule 403. yet conflict, another intra-circuit in which separately The district up court admitted are sunk to the axles here. Specifi- testimony cally, pistol-whipped majority a teen- cites United States age girl a year before the On proposition Bell for the that evidence of occasion, gun only was armed with a prior prior crimes is admissible up and drove alongside girl “part as she crime was of the same scheme or four determina- 516 no less than operandi.” modus a similar involved (6th Cir.2008). majority would reverse But Bell’s tions on which 432, 443 F.3d court.) It reasons that admissibility of the district prior- for rule narrow had evidence of government prior is “inconsistent crimes evidence namely, his to White intent: threat shoot therefore not control- precedent But to to prove Means. “intent cause Hardy, 643 F.3d ling.” States Jenkins, harm[,]” (6th Cir.2011); as re- death serious see also (“Our enough § hard it was not precedents quired are at 485 made government prove The test point”). on this reconcile government a threat. The had to and elsewhere such admissibility this circuit bluffing was not when he permissive: prove whether been more long has actually he intended to shoot crimes is made it—that conduct in the defendant’s women if an infer- one of those WThitedid hand “sufficiently support analogous given do her car. And the nature intended to over ence” that defendant what similar later. See United something —be- doubt, Benton, no less—the yond reasonable ugly was matter what functionally proof going be no That is test pistol-whipping evi- form took. The here. applied district court undoubtedly prejudicial, but dence Thus, LeCroy, in United States v. is fair. It was here. prejudice sometimes (11th Cir.2006), upheld *16 police admission of evidence court not abuse dis- The district did saying in car respectfully the defendant’s case. I dissent. found notes cretion this kill peo to “rob ears and planned that he as evidence “rape pillage” rob

ple” harm intended to cause he 926; years later. Id. Benton, F.2d at 1467-68