Lead Opinion
Dejuan Hill
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. While we agree with Dejuan that there was a variance between
I. Factual Background
Confronted with a series of robberies of banks and pharmacies in Tulsa, Oklahoma, Tulsa police — with the FBI’s help — investigated. Law enforcement came to believe that the local Hoover Crips gang was connected to the robberies. The Tulsa Police Department has a multi-step process through which it certifies individuals as gang members and — based principally on his certification as a member of the Hoover Crips- — police identified Dejuan as a person of interest in this string of robberies.
Based on their investigation, law enforcement officials eventually came to believе that several men associated with the Hoover Crips, including Dejuan, had conspired to commit a number of these robberies. A federal grand jury returned a ten-count indictment against this group of alleged co-conspirators, charging each with conspiring between August 2009 and November 2011 to commit six robberies in violation of 18 U.S.C. § 1951(a). The grand jury indicted Dejuan as a member of this broad conspiracy and also charged him with the November 2011 robbery of Arvest Bank and — as part of that robbery- — -with using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (1) (A) (ii).
A. The Arvest Bank Robbery
The Arvest Bank robbery occurred on November 5, 2011. The government argued at trial that Dejuan and Vernon Hill robbed the bank and that Stanley Hill acted as the getaway driver.
Tulsa Police Department Officer Donnie Johnson received a call about the bank robbery soon after 8:30 a.m. Based on the movement of the GPS tracer — -but before the police determined that the GPS tracking device had stopped at 1107 E. Pine— Johnson drove his patrol car to the area by 1107 E. Pine. Police were told to be particularly vigilant regarding that house because they had Vernon pegged as a likely bank robber and they believed he resided there.
The government initially prosecuted Vernon and Stanley Hill for the Arvest Bank robbery without including Dejuan. Following a court proceeding related to the prosecution of Vernon and Stanley, Officer Johnson noticed Dejuan outside the courtroom and recognized him as the person he had seen driving away in the black Nissan from the alley behind 1107 E. Pine. During a later court proceeding in that same prosecution, Officer Johnson identified Dejuan as the driver of the black Nissan. After Officer Johnson’s in-court identification, Dejuan did not attend any further court proceedings in the case against Vernon and Stanley.
After evaluating all the evidence, the government expanded its charges to include Dejuan as a co-conspirator in the string of robberies and as the third robber in the Arvest Bank robbery. Before addressing the government’s evidence at trial in detail, we briefly summarize it here: (1) Officer Johnson saw Dejuan driving away from 1107 E. Pine, his brother’s house, minutes after the bank robbers would have arrived there; (2) Dejuan was driving a black Nissan four-door.sedan, which was the same make, color, and style as a car that belonged to Whitney Landrum, his brother Stanley’s girlfriend and the mother of Stanley’s children; (3) cell phone records showed that three cell phones— one registered to Vernon (Vernon’s phone), the other two to Whitney Land-rum — had all been located -near Whitney Landrum’s house on the morning of the bank robbery; (4). cell phone records showed that Vernon’s phone called one of Whitney Landrum’s phones (Landrum 1) from near the bank very soon before the bank robbery (the second phone registered to Whitney Landrum (Landrum 2) showed no calls after being located near Whitney Landrum’s house that morning, suggesting it had been turned off); (5) cell phone records showed that Vernon’s phone and Landrum 1 were near 1107 E. Pine very soon after the bank robbery; (6) cell phone records showed that Landrum 1 left 1107 E. Pine and headed south at the about the same time that Officer Johnson saw De-juan driving away in the black Nissan; (7) during the 30 minutes after Officer Johnson and Dejuan locked eyes as Dejuan
As briefly alluded to above, the government used the cell phone records to support its position that Dejuan and Stanley Hill had used the two phones registered to Landrum. Landrum 2, which had phone number (918) 946-1576, was active on the morning of November 5. It was located in the vicinity of 1107 E. Pine around 7 a.m. and then was located near Landrum’s address — 811 North Irvington — around 8 a.m. After that time Landrum 2 showed no activity until November 6, suggesting that it may have been turned off. The other two phones — Landrum 1, which had phone number (918) 313-3860, and Vernon’s phone, which had phone number (918) 282-9204 — were also located in the vicinity of Whitney Landrum’s address at around 7:15 a.m. on November 5 and were next used while close to Arvest Bank at 8:30 a.m. Vernon’s phone made a call to Land-rum 1 around 8:30 a.m. in the vicinity of the bank. Around this same time, an eyewitness saw two men, whose descriptions matched those of the robbers, standing outside the bank, one speaking on a phone. After this, Landrum 1 showed no activity until around 9 a.m., when cell tower information showed it in the vicinity of 1107 E. Pine. As the cell-phone tower records showed, Landrum 1 began moving south after this and exchanged at least three calls with Vernon’s phone in the next half hour. Landrum l’s movement corresponded with the period in which Officer Johnson saw Dejuan leave the area around 1107 E. Pine. The first call from Landrum 1 to Vernon’s phone occurred at 9:04 a.m., which was around the same time that Officer Johnson and Dejuan made eye contact оutside of 1107 E. Pine.
The government also tied Dejuan to the robbery with video from an Arvest Bank security camera and eyewitness descriptions of the robbers. Based on both the video and eyewitness observations, the Ar-vest Bank robbers were of similar height, with one having a light-brown complexion and the other a dark-brown complexion. Because Stanley was shorter and of a different complexion (medium-brown) than the bank robbers, the government argued that Stanley was the getaway driver.
B. The Larger Conspiracy
The evidence supporting Dejuan’s connection to the larger conspiracy focused mostly on (1) the Tulsa Police Department’s “certification” of Dejuan as a Hoover Crip and (2) Dejuan’s Hoover Crip tattoo.
C. Procedural History
Of the eight alleged co-conspirators, only Dejuan, Vernon, and Deandre Hopkins ultimately proceeded to trial together. The other five pleaded guilty. There were six other robberies discussed in depth at trial — IBC Bank, Dooley’s Pharmacy, Metro Pharmacy, CVS Pharmacy, Barnes Pharmacy, and Tulsa Municipal Employees Federal Credit Union — but no evidence directly linked Dejuan to any of these robberies. However, because Count One included all of these robberies except CVS as overt acts — and evidence of the CVS robbery was still included at trial because it allegedly involved Vernon, who was tried with Dejuan — Dejuan’s trial included evidence regarding all six robberies.
Ultimately, the jury convicted Dejuan on the three charges against him — Count One: conspiring to obstruсt, delay, and affect interstate commerce by robbery (the global conspiracy); Count Nine: obstructing, delaying, and affecting interstate commerce by robbery (Arvest Bank); and Count Ten: using, carrying, and brandishing firearms during and in relation to a crime of violence (Arvest Bank).
Dejuan raises four issues on appeal. First, he argues that there was insufficient evidence to convict him of the robbery of Arvest Bank. Second, he asserts that there was a substantially prejudicial variance between the single global conspiracy charged in the Indictment and the evidence of individual conspiracies that the government produced at trial. Third, he contends that the trial court erred either by not granting his motion for misjoinder or by failing to sever his trial from that of his co-defendants. Finally, he appeals the denial of his motion to exclude the gang evidence under Fed.R.Evid. 403.
II. Sufficiency of the Evidence
We review de novo whether the government presented sufficient evidence to sustain a conviction. United States v. Prince,
Having said this, however, a conviction must be grounded in more than a mere suspicion of guilt when viewing the evidence in its entirety. Id. at 1294. In the criminal context, this rule derives from the government’s burden to prove its case beyond a reasonable doubt. Id. at 1294-95. The government may use circumstantial evidence to fulfill this burden, and the “jury has wide latitude to determine factual issues and to draw reasonable inferences from circumstantial evidence.” Id. at 1295 (quoting United States v. McCarrick,
Here, the government relied primarily on circumstantial evidence to. tie Dejuan to the robbery of Arvest Bank,
The jury could also tell two other important things from the cell phone records introduced at trial. First, Vernon’s phone placed a call to Landrum 1 right before the Arvest robbery. The government posited that this was Vernon calling Stanley, the getaway driver, before he and Dejuan entered the bank. This assertion was corroborated by an eyewitness who testified to having seen two men whose description matched that of the robbers standing outside of the bank shortly before the robbery, one of them speaking on a cell phone. And, second, the government’s cell phone evidence suggested that the three phones at issue — Vernon's phone,' Land-rum 1, and Landrum 2 — were all located in the vicinity of Whitney Landrum’s house on the morning of the robbery. Taking all reasonable inferences in the government’s favor, the jury could believe from this evidence that Vernon, Dejuan, and Stanley were all in the same location shortly before the robbery of Arvest Bank. This evidence also allowed the jury to infer that, after leaving 1107 E. Pine, Dejuan called Vernon using the very phone that Vernon had called when standing outside of the bank before the robbery.
The evidence from inside the bank — the videotape and eyewitnesses — allowed the jury to determine that Stanley was not one of the robbers who entered the bank.’ It also allowed the jury to see — consistent with other testimony — that the second robber was about the same height and complexion as Dejuan.
How, then, could the jury move from these reasonable inferences to a supportable determination that Dejuan was the second robber? Each inference requires additional steps. First, the jury had to infer from Dejuan’s presence at 1107 E. Pine not merely that he was at his brother’s house, but that he arrived with Vernon and Stanley in the car after driving there with them from the Arvest Bank robbery. It also had to infer from the lack of a second robber’s outfit and the missing
We believe that the combination of circumstantial factors presented at trial allowed the jury to properly take these steps and determine, beyond a reasonable doubt, that Dejuan was the second robber. Understanding this conclusion requires a brief explanation of the relevant precedent regarding the use of purely circumstantial evidence. The Supreme Court long ago counseled that “[c]ircumstances altоgether inconclusive, if separately considered, may, [by] their number and joint operation ... be sufficient to constitute conclusive proof.” The Reindeer,
As noted above, no single piece of the government’s evidence alone conclusively establishes that Dejuan was the second robber. Taken together, however, we believe the combination of circumstances dispels any other reasonable conclusion. Any doubt that Dejuan was the second robber captured on video by the Arvest Bank security camera would require the presence of a fourth individual (other than Vernon, Stanley, or Dejuan) of the same height and complexion as Dejuan. This fourth individual would have had to do one of three things: (1) gotten out of the car on the way from the bank to 1107 E. Pine wearing the bank robbery clothing (a possibility that the GPS tracer’s movements makes unlikely); (2) never entered the getaway car; or (3) managed to sneak out of 1107 E. Pine unnoticed despite the presence of numerous police officers in the vicinity. Under this scenario, Dejuan would have had to be in the unlucky position of being in the house unaware when Stanley and Vernon (his brothers and fellow gang members) returned from the bank robbery, leaving shortly thereafter when Officer Johnson identified him, and unwittingly being in possession of, and using, the very same phone that Vernon called shortly before he robbed the bank.
Although this sequence of events may be conceivable, believing that it came to pass strains credulity. We must be mindful that, again, our standard does not rеquire that the government’s evidence eliminate all doubts, but merely reasonable doubts. See id. Given the sequence of events that would be required for Dejuan not to be the second robber, we hold that the government has met its burden here.
We believe that Dejuan’s strongest case regarding insufficient evidence is Summers, so we consider it in depth. In Summers, two men- — -Omar Mohammad and Curtis Frazier — robbed a Bank of America branch in Abuquerque, New Mexico.
Before the robbery, the apartment manager of Pinnacle View Apartments (located adjacent to Vista Montano Apartments) had seen three black men, none of whom she could identify, walk onto the apartment complex grounds after parking a gold Acura outside the gate. Id. Her suspicions aroused, she had maintenance men watch to see where the three men went. A maintenance worker saw the three men — one carrying a black bag — enter an apartment in the complex. Id. The apartment was rented to Adrienne McCastle, whose boyfriend — Marvin Thomas — resided at the apartment with her (although Thomas’s name was not on the lease). Id. About five to ten minutes later, the maintenance worker saw four men, including Thomas, leave the apartment and drive away in a red Ford Escape SUV. Id. The same maintenance worker saw Thomas return alone in the same Ford Escape. Id. Although this worker saw Thomas then leave the apartment a second time after around five to ten minutes, no one saw him or anyone else return to the apartment. Id.
By this time, police had contacted the apartment manager to ask if she had seen any cars matching the getaway car used in the robbery near the apartment complex. Id. Given that the description of the gold Acura matched, police started watching the apartment. Id. Although no witness saw anyone enter the apartment after Thomas’s second departure, the police later saw four black men — Thomas and Summers among them — leaving the apartment. Id. at 1292-93. The police followed and eventually apprehended these four. Id. The police found evidence in the car of the bank robbery and also found “$5,142.10 in Mr. Thomas’s pockets, including ten ‘bait bills’ ” stolen in the robbery. Id. at 1293. We concluded based on this record that there was insufficient evidence to convict Summers of conspiring to commit the bank robbery. Id. at 1292.
Equating Summers with Dejuan’s case ignores many extenuating circumstances present in Summers but absent here. In Summers, the government’s claim that a third person besides Mohammad and Frazier participated in the robbery relied mainly on one eyewitness who claimed that the gold Acura the robbers escaped in was already moving when the two robbers got into opposite sides of the car. Id. at 1296. In his initial statement to police, the witness had not mentioned that the car was moving when the two robbers reached it, explaining at trial that he later realized that was what he had seen. (Summers R., Tr. Trans, vol. 1, at 169-70.) He did not see a third person in the car and testified that one of the robbers had quickly entered the driver’s side of the moving, two-door car. (Id. at 161, 169.) In fact, his revised recollection (that perhaps there had been a third person) was based principally on a contention that the car “left very fast” for two people to have entered it, started it, and then departed. (See id. at 161.) For Summers to be the getaway driver — the government’s theory against him at trial- — -the bank robber entering the driver’s side door of the moving car would have had to smoothly climb over Summers to the backseat as the car sped from the bank, all without a hitch. Such unlikely acrobatic skills hardly squared with proof beyond a reasonable doubt. One would assume that a witness intently watching the driver’s side of the car would have
By contrast, in Dejuan’s case the government’s theory supporting three bank, robbery co-conspirators (Vernon, Stanley, and another man) relied on many pieces of evidence. These included: (1) the videotape of the robbers (specifically the robbers’ heights and complexions); (2) the lack of a second robber’s outfit at 1107 E. Pine; (3) the $311.52 missing from the money discovered at 1107 E. Pine; (4) the speed at which the GPS tracer traveled from the vicinity of the bank to 1107 E. Pine; and (5) the cell phone communications between Vernon’s phone and Land-rum 1.
Moreover, here any theory involving an unknown fourth man (beyond Vernon, De-juan, and Stanley) participating in the robbery requires many inferential leaps, leaps unnecessary in Summers. Simply put, Summers was a much weaker case than Dejuan’s. Even if one accepts the almost preposterous view that two bank robbers jumped into a moving, two-door car, nothing introduced at trial indicated that the third person driving the car was Summers. Why couldn’t Thomas have been one of the three men? Couldn’t one of the times he left the apartment have been to participate in the robbery? It seems at least as reasonable as the government’s alternative scenario. A central problem in Summers, then, was that the government’s theory involved a three-person crime but the government offered the jury four possibly culpable parties (Mohammad, Dwayne, Thomas, and Summers), two of whom (Summers and Thomas) were .equally likely to have been the third robber. Finding reasonable doubt in Dejuan’s case, by contrast, would require the jury to concoct a highly implausible scenario in which another robber besides Vernon, Stanley, and Dejuan was present at the robbery. Again, this robber would have had to have done one of the following: (1) been dropped off before the robbers returned to 1107 E. Pine (despite the speed with which they returned); (2) quickly taken $311.52 from the $86,918.52 of loot outside the bank, entered a separate car, and sped аway; ■ or (3) returned with Vernon and Stanley to 1107.E. Pine, left the house, and evaded the many police officers who were in the area.
And these two distinctions say nothing of the timing issues present in Summers that are not at issue in the case before us. Here, Officer Johnson saw Dejuan leaving a one-way alley behind his brother’s house at 1107 E. Pine minutes after the robbers would have arrived at the house. In Summers, however, there were multiple times when unidentified individuals entered and left the apartment. Summers,
The numerous factual deficiencies in the government’s case in Summers supported the court’s conclusion that the government had presented insufficient evidence to sustain Summers’s conviction. But the evidence against Dejuan is much stronger. We perceive no difficulty squaring our finding here with our precedent in Summers.
In sum, we conclude that sufficient evidence existed for the jury to convict De-juan beyond a reasonable doubt.
Dejuan argues that — contrary to Count One of the Indictment, which charged him with participating in a global conspiracy to rob banks, a credit union, and pharmacies — the government’s evidence at most showed that Dejuan was a participant in a separate, smaller conspiracy to rob Arvest Bank.
We review this question de novo. United States v. Williamson,
Even if we determine that a variance occurred, we need not reverse the district court unless we determine that the defendant was substantially prejudiced by the variance. United States v. Edwards,
Á. Variance
We agree with Dejuan that there was a variance here between the conspiracy charged in the Indictment and the crimes proved at trial. We analyze this question by considering whether there was sufficient evidence to tie Dejuan to the larger global conspiracy alleged in Count One. See id. at 1237. While we believe that there was sufficient evidence to convict Dejuan of the robbery of Arvest Bank — and of the conspiracy to rob Arvest
In fact, Duncan Herron — -the government’s cooperating witness, whose testimony the government highlighted for us when contesting Dejuan’s assertion that a variance existed — barely testified at all regarding Dejuan’s role in any larger conspiracy. Herron testified simply that he knew Dejuan and that he was unsure whether Dejuan was a Hoover Crip. While we have previously held that “gang-affiliation testimony may be relevant” where conspiracy is charged, United States v. Archuleta,
B. Prejudice
Even having determined that a variance existed, we still must decide whether the variance prejudiced Dejuan. One way it might prejudice Dejuan would be by failing to sufficiently notify him of the charges. United States v. Caldwell,
Another way the variance could have prejudiced Dejuan is by an evidentiary spillover. Dejuan points us to no specific instances of evidentiary spillover that prejudiced him, instead arguing broadly that “[t]he government’s evidence of multiple conspiracies created what is not allowed by the teaching of [Kotteakos v. United States,
i. Did the separate conspiracies affect the jury’s ability to evaluate each defendant’s individual actions?
Addressing the first consideration, the Supreme Court counseled us in Kotteakos that the greater the number of conspiracies proved and defendants tried, the higher the probability of prejudice.
Here, we are confronted with a case where three defendants were tried together and jointly charged, along with' five others, under the global conspiracy count. Due to this, we must acknowledge that the jury heard evidence at trial regarding six robberies other than Arvest Bank — none of which were alleged to directly implicate Dejuan. However, even if we were to broadly conclude that each individual robbery involved its own small conspiracy (meaning five separate conspiracies),
The dissent disputes this contention. It argues that because (1) Dejuan’s case involved more small conspiracies than Car-nagie and (2) these conspiracies involved shifting groups of people, the numerosity present here may well have rendered the jury unable to compartmentalize the evidence against Dejuan. [Dis. Op. at 1275-76.] This discussion omits the fact that— whatever the numbers present — Dejuan was only alleged to be involved in one discrete event. In such a circumstance, we believe that the jury would have no difficulty compartmentalizing evidence bearing on his guilt. Additionally, we note that the dissent fails to recognize that thirty-four people were indicted in Cama-gie, as compared to eight here.
ii. Did the variance cause the jury to misuse evidence?
The second Camagie factor asks whether the variance caused the jury to misuse evidence. Here, we consider (1) whether the evidence was so complex that it rendered the jury unable to compartmentalize Dejuan’s individual actions, (2) whether the transactions allegedly part of the
None of these considerations favors De-juan. First, the evidence here was not sufficiently intricate that the jury could not segregate Dejuan’s individual actions. The evidence consisted of, among other things, eyewitness accounts, physical evidence, and security camera footage, rather than — for example — complex testimony from a host of expert witnesses. Second, the entire charged conspiracy consisted of a string of similar robberies that the government claimed were related. The evidence presented against Dejuan thus related to transactions of the “same character” as the robbery of Arvest Bank. And, finally, Dejuan was charged and convicted of only the Arvest Bank robbery. Since De-juan was'not charged with any of the other robberies, the jury had no opportunity to show its ability to compartmentalize the evidence against him. This makes the third factor at best neutral for Dejuan. For these reasons, the second > Carnegie consideration also does not render the variance prejudicial against Dejuan.
iii. Was there sufficiently strong evidence underlying the jury’s decision?
This leaves the third Camagie factor, which considers the strength of the evidence underlying the conviction for conspiracy. This factor considers whether the prosecution presented enough evidence to convict Dejuan of the separate, smaller conspiracy of the robbery of Arvest Bank. Id. at 1243. In Dejuan’s case, undertaking this analysis seems at first both repetitive and problematic. Indeed, before going through any analysis, we believe we must first answer two key questions: (1) having already determined that there was sufficient evidence to convict Dejuan of the Arvest Bank robbery, must we analyze this evidence again in considering the third Camagie prong? and (2) if we must undertake this analysis again, do different standards undergird our review?
In the case before us, the answer to the first question must be yes. Here, the sole smaller conspiracy in which Dejuan allegedly participated was the robbery of Ar-vest Bank. While we have found that evidence sufficient to convict Dejuan of the robbery of Arvest Bank, the inquiry here is whether that evidence was sufficient to convict Dejuan of conspiring to rob Arvest Bank. This is a separate question that may yield a different answer. See United States v. Felix,
Regarding the second question, we believe that, while the considеrations that go into our review of the evidence at this stage are slightly different, both of our reviews -’of the evidence in this cáse reach the same result and require a similar standard of review. We believe that analyzing the “strength” of the evidence under the third Camagie factor requires us to take two steps: (1) we must strip away all the evidence of a larger conspiracy (here, the evidence of the other bank, credit union, and pharmacy robberies) and ask if, excluding this evidence, there was still enough evidence to convict Dejuan of conspiring to rob Arvest Bank, see Carnagie,
Since, again, the conspiracy evidence in this particular case is coterminous with the Arvest Bank robbery evidence, we are essentially reevaluating the same evidence but considering it through the lens of a conspiracy charge. But what standard must the evidence meet? While our precedent speaks of the “strength” of the evidence when considering the third Carnagie factor, see, e.g., id. at 758 (quoting United States v. Morris,
Here, we conclude that the evidence was sufficient to convict Dejuan of conspiring to rob Arvest Bank. We also believe that this evidence was not so much weaker than the other evidence introduced at trial that it led to a substantial danger of prejudicial spillover. As noted above, the government must show four things to prove a conspiracy: (1) that a defendant and at least one other person agreed to violate the law; (2) that the defendant knew at least the essential objectives of the conspiracy; (3) that the defendant knowingly and voluntarily became a part of the conspiracy; and (4) that the alleged co-conspirators were interdependent. Sells, 477 F.3d at 1235. When we take the evidence from the perspective tending to support the jury’s verdict, Harrison,
At the second step, we conclude that the evidence proving Dejuan’s role in the smaller conspiracy was strong enough to minimize the danger of prejudicial spillover. We do not come to this conclusion lightly and caution the government that this case treads the line where the potential for spillover may become too great. We express this caution principally because, while there were many pieces of direct evidence tying other co-conspirators to other crimes, much of the evidence implicating Dejuan in the Arvest Bank ■robbery was circumstantial. However, despite this difference, we ultimately conclude that the evidence implicating De-juan in the conspiracy to rob Arvest Bank was strong enough to affirm the jury’s verdict.
Moreover, we note that Dejuan did not object to the introduction of much of the evidence introduced to support the global conspiracy. Unlike the dissent, we see possible benefits (and not just possible prejudice) to Dejuan from this global-conspiracy evidence. This evidence gave De-juan a favorable avenue to try to undermine the (sufficient) evidence of his guilt in the Arvest Bank robbery. His closing argument shows how the evidence could benefit his case:
There’were about 60 witnesses that testified in this case. The word “Dejuan Hill” was almost never mentioned. It was never mentioned for a reason; because he’s not involved. He was not in any way related to the IBC Bank robbery of 2009, the Metro Pharmacy robbery, Dooley Pharmacy robbery, T. Roy Barnes robbery, CVS robbery, credit union robbery, and in no way related to the Arvest Bank robbery, none. Those are the facts. Not even the infamous Duncan Herron mentioned my client’s name. Even he couldn’t come up with a reason to talk about him.
Faced with this argument, a reasonable jury might wonder whether Dejuan was really involved in the Arvest Bank robbery considering the dearth of evidence that he was involved in the other criminal activity. We conclude that the jury convicted based on the strength of evidence proving his involvement in the Arvest Bank robbery, not on evidence of his involvement (really, wow-involvement) with other men committing other crimes.
We thus conclude that Dejuan’s claim of a prejudicial variance affords him no relief. While there was a variance between the larger conspiracy alleged in the Indictment and the smaller conspiracy proved at trial, we conclude that this variance was not prejudicial. We therefore affirm the district court.
IV. Misjoinder
As noted above, Dejuan contends that the district court erred either by not granting his motion for misjoinder under Fed.R.Crim.P. 8 or by failing to sever his trial from that of his co-defendants under Fed.R.Crim.P. 14. Dejuan’s argument regarding Rule 8 is principally based on his belief that his case did not satisfy the requirements of Rule 8(b), which pertains to the joinder of defendants:
Joinder of Defendants. The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.
Fed.R.Crim.P. 8(b). Dejuan contends that his alleged participation in only one rob
Addressing Rule 14, Dejuan contends that the court should have severed his trial to avoid potential prejudice arising from trying him together with his co-defendants Vernon and Hopkins. Dejuan’s argument principally involves Rule 14(a), which concerns a court’s right to grant relief from prejudicial joinder:
Relief. If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.
Fed.R.Crim.P. 14(a). Dejuan argues that he was prejudiced because the jury heard evidence about robberies implicating his co-defendants, but not him. This, he says, led to the possibility of “[g]uilt by association” and should have warranted severance.
While we review alleged misjoinder under Rule 8 de novo, United States v. Johnson,
Considering Rule 8 first, we find Dejuan’s arguments unavailing. Although the Indictment in this case charged six different robberies alleged to have been committed by different defendants over a more than two-year period, it also alleged that the defendants conspired and agreed with each other to commit all six of the robberies. Given the broad construction we afford Rule 8 and our preference for liberal joinder, this was sufficient to permit joinder.
We also cannot grant Dejuan relief under Rule 14. While Dejuan broadly alleges prejudice, he does not point this court to any specific instances in his trial where prejudice occurred. This broad contention is insufficient under Rule 14. See United States v. Pursley,
Further, we note that — even were De-juan able to demonstrate prejudice — this alone would still not require severance under Rule 14. Zafiro,
We therefore cannot grant Dejuan relief on either his claim under Rule 8 or his claim under Rule 14. We affirm the district court on both of these issues.
V. Gang Affiliation Evidence
Dejuan’s final argument is that the trial court erroneously denied his motion in li-mine to exclude the evidence regarding his gang affiliation. Dejuan argues that the government introduced no evidence suggesting that his gang membership was relevant to the issues presented at trial, including no evidence that gang membership was important to the formation, agreement, or purpose of the conspiracy. In addition, he contends the gang affiliation evidence was unfairly prejudicial.
We review a district court’s evidentiary determinations for an abuse of discretion. United States v. MacKay,
Dejuan’s arguments provide us with no reason to vary from these cases. Before we delve into the bases for this conclusion, however, we must acknowledge two points that support Dejuan’s contention here. First, it is true that the evidence presented at trial only established smaller conspiracies, rather than the larger, global conspiracy alleged in the Indictment. And, second, it appears based on our review of the record that the only evidence presented by the government at trial tying Dejuan to the larger conspiracy was evidence of his gang affiliation.
Having acknowledged these issues, how do we still reach the conclusion that the introduction of this evidence was not an abuse of discretion? Simply stated, both of the points we noted in favor of Dejuan are subject to hindsight bias. At the time of the district court’s decision
We believe that the danger of unfair prejudice was limited when we consider the other evidence linking Dejuan to the robbery of and conspiracy to rob Arvest Bank. The jury was not left to rely solely on Dejuan’s gang affiliation to determine that he was a member of a conspiracy to rob Arvest Bank and that he had participated in the Arvest Bank robbery. Rather, the jury was able to consider cell phone records, an eyewitness who placed Dejuan near the place where the stolen money was later found, and the similarities in physical appearance between Dejuan and one of the robbers. We believe that — at the time of the district court’s ruling — the probative value of the evidence of Dejuan’s gang affiliation was not substantially outweighed by the danger of unfair prejudice. While the evidence mаy have prejudiced Dejuan, it was not unfairly prejudicial such that it ran afoul of Rule 403. The district court’s determination was not an abuse of discretion.
VI. Conclusion
While Dejuan is correct that a variance existed between the larger conspiracy charged in the Indictment and the smaller conspiracies proved at trial, this variance did not prejudice Dejuan in a manner warranting reversal. We therefore conclude that no prejudicial variance existed and affirm the district court. We also affirm the district court as to all other issues raised in this appeal.
Notes
. Since Dejuan Hill allegedly committed the robbery of Arvest Bank with Vernon Hill and Stanley Hill, we will refer to him as Dejuan throughout the rest of this opinion for ease of identification.
. Before us, Dejuan's argument concerning misjoinder actually encompasses two related concepts: (1) that the district court erred by not granting his motion for misjoinder under Fed.R.Crim.P. 8; and (2) that the district court erred by failing to sever his trial from that of his co-defendants under Fed.R.Crim.P. 14.
. Dejuan, Vernon, and Stanley Hill are brothers.
. Police later discovered mail addressed to Vernon at 1107 E. Pine and a cell phone registered in his name to that address, confirming their suspicions.
.The government presented testimony that Whitney Landrum, Stanley Hill’s girlfriend and the mother of his children, owned a black Nissan similar to the one Officer Johnson saw Dejuan driving away from the alley behind 1107 E. Pine.
. Although not questioning Officer Johnson's identification of Dejuan as the man he saw driving the black Nissan, the dissent does question how Dejuan could have left the house at 1107 E. Pine and entered the car unseen when "law enforcement officers were present at that time establishing a perimeter around the house.” [Dis. Op. at 1283.] The location of the officers explains this well. Officer Johnson testified that all other law enforcement officers were positioned on E. Pine Street, in front of Vernon’s house, when he arrived. Unlike them, Officer Johnson parked his police car on Norfolk, which runs perpendicular to E. Pine, and from there he was likely the sole officer able to see toward the back of the house and at the egress of the alley. During the time before he saw Dejuan driving away in the black Nissan, Officer Johnson was on foot looking for the GPS tracer in a grassy area separate from but somewhat relatively nearby to Vernon’s house. Although the record is unclear whether Officer Johnson would have had a view of someone walking between the house and the Nissan, it is clear that he had an unobstructed view of the Nissan’s driver as the car left the alley.
. Dejuan’s tattoo consisted of a 27 and a set of dice. A Tulsa Police Department Officer testified at trial that the relevance of the 27 and set of dice was that "the set that he belongs to is the 27 Hoovers. He's showing his allegiance to that set.”
. See supra p. 1259-60 (summarizing the evidence the government marshalled'against De-juan).
. As we noted and rejected above, Dejuan argues that the government's evidence was insufficient even to convict him for the robbery of, and conspiracy to rob, Arvest Bank.
. To briefly summarize, these conspiracies would involve the robberies of: (1) Dooley's Pharmacy; (2) Barnes Pharmacy (uncharged but identified in the overt acts furthering the global conspiracy); (3) Metro Pharmacy; (4) Tulsa Credit Union; and (5) Arvest Bank. While there were two other robberies discussed at trial — IBC Bank and CVS Pharmacy — the government did not provide evidence of a conspiracy for either robbery. The IBC Bank robbery, which was identified as an overt act furthering the global conspiracy and charged in Count Two, involved Vernon alone and thus could not constitute a conspiracy. The government did not charge CVS Pharmacy or identify it as an overt act furthering the global conspiracy, instead only mentioning this robbery in an attempt to prove Vernon's guilt for the other robberies. We discuss both of these robberies in more depth in Vernon’s separate appeal. United States v. [Vernon] Hill,
. Belying Dejuan’s contention is the Indictment's first Manner and Means of the Conspiracy: "It was part of the conspiracy that the conspirators were and are members or affiliates with the Hoover Crips street gang.”
Concurrence Opinion
dissenting in part and concurring in part:
I join in the majority’s well-reasoned conclusion that the government failed to prove a global conspiracy, thereby creating a variance between Dejuan’s indictment and what the government ultimately proved. But I respectfully disagree with the majority’s holding that the variance did not substantially prejudice Dejuan’s right to a fair trial. In my view, by prosecuting a single global conspiracy, the government subjected Dejuan to largely irrelevant and prejudicial evidence that the jury more likely than not unfairly imputed to him. And although I agree that the relevant evidence, presented in a fair trial and when viewed in the light most favorable to the government, would be sufficient to convict Dejuan of robbing the Arvest Bank, I do not agree that this evidence was strong enough to outweigh a substantial risk of prejudicial spillover. Thus, I respectfully dissent from the decision affirming Dejuan’s convictions. I would instead reverse and remand for a new trial.
Where, as here, the government has charged a defendant with participation in a larger conspiracy but the evidence instead establishes several smaller conspiracies, the defendant is entitled to reversal if the variance prejudices his substantial rights. In turn, a variance prejudices a defendant’s substantial rights “if the evidence adduced against co-conspirators involved in separate conspiracies was more likely than not imputed to the defendant by the jury in its determination of the defendant’s guilt.” United States v. Carnagie,
I begin, as the majority does, by considering the number of individuals indicted, defendants tried, and conspiracies established at trial. The greater the number of defendants and conspiracies established at trial, the more likely it is that the jury will be unable to segregate each individual co-conspirator’s actions. United States v. Morris,
The majority, citing Camagie, concludes that because the government charged only eight individuals and tried only three defendants (Vernon, Dejuan, and Deandre Hopkins) in this case, the jury was able to compartmentalize the evidence against De-juan from that of his alleged global cocon-spirators. I disagree. Although only three defendants ultimately went to trial, the government introduced evidence regarding seven robberies and six related conspiracies.
In any event, although numbers are “vitally important” in examining the risk of prejudicial spillover, other . factors illustrate Dejuan was prejudiced by the variance. Camagie instructs that we should also consider whether the jury was confused concerning the legаl limitations on the use of certain evidence that resulted from the variance.
Under the guise of prosecuting a global conspiracy orchestrated by the Hoover Crips gang, the government subjected De-juan to a three-week trial, during which it elicited testimony from over sixty witnesses and admitted into evidence almost two-hundred exhibits. Only a small fraction of this evidence related to Dejuan or his alleged participation in the Arvest Bank robbery. See United States v. Dellosantos,
The risk of prejudice to Dejuan due to the admission of irrelevant evidence related to the global conspiracy was compounded because much of that evidence is inherently prejudicial in nature. For example, the government presented considerable gang evidence of questionable relevance to the Arvest Bank robbery, which, in my view, increased the risk that the jury imputed guilt to Dejuan based on the actions of others. See United States v. Archuleta,
This evidence included testimony from a former Hoover Crips gang member who testified about how the gang operates. Although it seems to have no relevance to the Arvest Bank robbery or the conspiracy
At one point, the government had the witness “throw up” the Hoover gang sign for the jury to see and asked him to describe the tattoos pn his own body. One tattoo depicts “NK” and “BK,” which stand for “Nеighborhood Killer” and “Blood Killer,” respectively. Another tattoo depicts a devil with the word'“Hoover” on its chest, holding a machine gun and giving the finger. But there was no evidence these tattoos matched Dejuan’s tattoos, or that any gang signs were “thrown” during the Arvest Bank robbery.
In addition, much of the gang evidence presented at trial highlighted the violent nature of the Hoover Crips gang and gang membership generally. Mr. Herron testified that he had to move from Tulsa because his house was “shot up,” allegedly by two individuals, neither of whom are claimed to have anything to .do with the Arvest Bank robbery. And although there was no suggestion that the Arvest Bank robbery was related to any gang rivalry, the government presented testimony regarding the feud between the Bloods and the Crips gangs and the attendant danger of affiliating with a rival gang. A Tulsa Police Department Officer also testified that the Hoover Crips is one of the more powerful African American gangs in Tulsa. He explained that to “gain respect,” members were “required to do criminal activities” such as “shooting at people, doing drives-bys on people’s houses on rival gang members, [or] disrespecting rival gang members in'public to try to start a fight to show your allegiance to the gang.” Another Tulsa Police Department Officer testified that he spent significant time investigating the Hoover Crips because of the “gang problem in Tulsa.” ■ This same officer also testified regarding photographs he obtained from a social media website. These photographs, along with other photographs introduced into evidence, depicted various people throwing up gang signs, holding money in their mouths, and displaying guns. Neither Dejuan, Vernon, nor Stanley, the alleged Arvest Bank robbers, is depicted in any of these photographs.
I do not dispute that the introduction of some gang evidence would be appropriate, even in the absence of a global conspiracy, to prove a smaller conspiracy alleged to involve members of the same gang. See Archuleta,
Even if some gang evidence could be relevant to the Arvest Bank robbery, the government’s presentation of evidence
The jury also heard evidence of six robberies that had no relevance to Dejuan in the absence of a global conspiracy. As with the gang evidence, I am convinсed the admission of this evidence increased the risk of prejudicial spillover. Unlike the majority, I do not consider the Arvest Bank robbery to be of the “same character” as each of the other robberies. In particular, the Arvest Bank robbery was less violent than the Tulsa Credit Union robbery, in which the robbers tore down security cameras, fired their weapons (narrowly missing one employee), and were physically violent to credit union employees. Indeed, one credit union employee testified a robber grabbed her with enough force to rip her shirt and break her necklace, dragged her through broken glass to the vault, and held a gun to her head while demanding that she give him money. In contrast, although one of the Arvest Bank robbers pointed a semiautomatic pistol at the customers and bank employees and screamed profanities while ordering them to the ground, no shots were fired and no one was physically assaulted. Thus, even if the robberies, including the Arvest Bank robbery, can be characterized as being executed in a violent takeover style, I view the Tulsa Credit Union robbery as involving a greater degree of violence. Cf. Carnagie,
Moreover, to the extent Dejuan is alleged to have played a role in the conspiracy, his role was more limited than his alleged global coconspirators or even his codefendants. By way of comparison, although Dejuan is alleged to have participated in only the Arvest Bank robbery, the government alleged Vernon participated in four and Deandre participated in three robberies. Cf. id. at 1243 (holding the risk of prejudice was minimized where the defendants were “charged with conduct of approximately equal culpability.” (internal quotation marks omitted)); Johansen, 56
I turn now to consider “the strength or weakness of the evidence underlying the jury’s conviction.” Carnagie,
I begin by addressing the majority’s analytical framework for examining the strength of the evidence. The majority engaged in a two-part inquiry: first, it determined there is sufficient evidence to convict Dejuan of the smaller conspiracy to rob the Arvest Bank; second, it “considered] whether the evidence of the [smaller] conspiracy in which Dejuan was implicated was so much weaker than the evidence introduced regarding the larger conspiracy that a substantial, prejudicial spillover must have resulted.” I agree with the first premise: the evidence tying Dejuan to the uncharged, smaller conspiracy to rob the Arvest Bank satisfied our traditional sufficiency of the evidence standards when viewed in the light most favorable to the government. But I do not agree with the majority’s second analytical step, which would require the evidence introduced with respect to the Arvest Bank robbery to be “so much weaker” than the evidence of the global conspiracy that prejudicial spillover “must” have occurred. In my view, the strength or weakness of the evidence that would support a conviction for conspiracy to rob .the Arvest Bank is merely one of the three factors we consider to determine “if the evidence adduced against co-conspirators involved in separate conspiracies was more likely than not imputed to the defendant by the jury in its determination of the defendant’s guilt.” Carnagie,
Under Harrison, we compare the amount or quantity of evidence admitted regarding the irrelevant conspiracies to
In addition to weighing the quantity of relevant versus irrelevant evidence, we may also consider the quality of that relevant evidence; i.e., whether the relevant evidence presents compelling evidence of the defendant’s guilt. See Gallegos,
Examining the strength of the evidence under this lens leaves me with the conviction that the variance was prejudicial in this case. First, as previously discussed, in an attempt to prove a global conspiracy, the government introduced an overwhelming amount of evidence that was largely irrelevant to the Arvest Bank robbery. Second, there was a relatively small amount of evidence linking Dejuan to either the Hoover Crips gang or to the Arvest Bank robbery. This significant disparity created a great risk of prejudicial
The majority has thoroughly and thoughtfully considered the sufficiency of the evidence related to Dejuan’s participation in the Arvest Bank robbery, -and I see no need to reexamine it in full. As explained, I concur in the majority’s conclusion that the evidence, when viewed in the light most favorable to the government, would be sufficient to support a verdict, entered after a fair trial, finding Dejuan guilty of robbing the Arvest Bank. It would also be sufficient to establish that he entered into a smaller conspiracy to rob the Arvest Bank. But I take this opportunity to highlight some of the weaknesses and inconsistencies in the evidence connecting Dejuan to the Arvest Bank robbery to illustrate why I do not consider the evidence strong enough to render the risk of prejudicial spillover unlikely. See Kotteakos,
As the majority recognizes, there is no direct evidence implicating Dejuan in the Arvest Bank robbery. Thus, connecting him to the robbery requires several inferential steps taken from circumstantial evidence. Although a conviction can be based on reasonable inferences drawn from circumstantial evidence, the inferences here do little more than meet the minimum requirements of sufficiency. Cf. United States v. Summers,
■ For example, the government’s theory of the case relies on the inference that three individuals were involved in the Arvest Bank robbery: Vernon and Dejuan, who physically entered the bank, and Stanley, who acted as the getaway driver. But none of the witnesses observed more than two robbers. Thus, the key piece of evidence supporting this theory is Officer Johnson’s identification of Dejuan driving on an alley leading away from 1107 E. Pine Street (the Hill residence) shortly after the robbery. The government argues the evidence of Dejuan’s presence in the alley compels the conclusion that Dejuan robbed the Arvest Bank with Vernon and Stanley and the three of them entered the house after the robbery. Even if we assume Officer Johnson’s identification of De-juan — which occurred three-and-a-half months after Officer Johnson’s two-second observation of the individual in the Nissan — is reliable, the strength of this evidence is limited by the timeline established
It is apparent the government did not have confidence in the second possible conclusion — that an individual involved in the Arvest Bank robbery left the house undetected — because it initially tried only Vernon and Stanley for the robbery. And during that trial, the prosecutor told the jury: “I submit to you the testimony has been unrefuted that no one came or went to [the house] other than these two defendants.... No one else. The testimony was unrefuted.” United States v. [Vernon] Hill,
The majority concludes the lack of direct evidence that Dejuan was involved in the robbery is overcome by his presence in the alley, coupled with the cell phone records for Landrum 1 and Landrum 2. According to the majority, these cell phone records establish that there were three people involved in the robbery and that one of those people was Dejuan. The theory works like this: Stanley and Dejuan both had access to Landrum 1 and Landrum 2. These two phones, along with Vernon’s phone, were all in the same location (the government suggests at Ms. Landrum’s house) shortly before the robbery, indicating that the users of these phones met up before the robbery. Then, immediately before the robbery, Landrum 2 was turned off, which the government implies indicates that one of the robbers (presumably Dejuan) turned the phone off during the commission of the robbery. In addition, Vernon’s cell phone called Landrum 1 immediately before the robbery, from which the government infers Vernon called the getaway driver (presumed to be Stanley), who was then in possession of Landrum 1. The government offered no direct evidence that either Stanley or Dejuan used Landrum 1 or 2 on the morning of the Arvest Bank robbery. But the majority concludes Dejuan can be linked to Landrum 1 because Landrum 1 called Vernon’s cell phone at about the time Officer Johnson saw Dejuan turn out of the alley and proceed in a southern
First, the location of the cell phones was imprecise. Although the involvement of a particular cell tower indicates a general location of the cell phone user, the user could be anywhere within a multiple-block area. And the cell phone records do not reflect who used a particular phone or what was said in any particular conversation. Thus, it is possible that sоmeone other than Dejuan or Stanley could have been using either cell phone at any given time, and for purposes related or unrelated to the robbery. Indeed, even the government seemed confused about what can be inferred from the cell phone records.
At trial, the government first argued that one of the robbers who entered the bank (presumably Dejuan) must have used Landrum 2 because it was turned off during the robbery. The government next asserted Vernon used his own cell phone and that his call prior to the robbery was to contact a getaway driver (presumably Stanley), who used Landrum 1. But if De-juan was the second robber who actually entered the Arvest Bank as the government argued, that would put him in possession of Landrum 2 — the phone turned off immediately before the robbery — not Landrum 1, the phone used by the getaway driver. However, the cell phone that called Vernon’s cell phone while traveling south at about the time Officer. Johnson saw Dejuan in the Nissan is Landrum 1. Thus, in addition to inferring all of the other facts linking Dejuan to the robbery, we must also infer that he entered the house briefly, obtained Landrum 1 from Stanley, exited the home without being observed by any of the police officers surrounding it, and then called Vernon on Landrum 1 to warn him of the police presence. While this may be true, it requires considerable effort by the jury to fill in the significant gaps in the evidence. In my opinion, this rendered the evidence weak enough that the glut of irrelevant and prejudicial evidence about the nonexistent global conspiracy more likely than not improperly influenced the jury’s verdict.
The government and the majority also rely on evidence of the physical description of the two robbers who entered the bank to place Dejuan in the bank and to exclude Stanley as the second robber. In particular, the government contends the testimony concerning the relative- skin tone and height of the suspects is compelling evidence supporting the conclusion that De-juan robbed the Arvest Bank. I am not convinced. First, if the eyewitness, testimony and surveillance footagе so clearly eliminated Stanley as a suspect, it seems odd that the government first prosecuted, albeit unsuccessfully, Stanley as the second robber who entered the bank with Vernon. See United States v. [Stanley ] Hill,
The evidence that Dejuan matches the height of the second robber while Stanley does not is also problematic. It is based exclusively on an FBI agent’s comparison of the height of the teller counter with the agent’s assumptions about the height of the second robber, based on the.surveillance video’s recording of the second robber jumping over the counter. Based on this comparison, the agent estimated the second robber’s height between 5'8" and 5'11" tall. The same agent opined that 'Stanley is 5'6" to 5'7" tall. Even if we accept the accuracy of these estimates, Stanley is within one inch of the height range estimated for the robber. In my view, this is not a great enough discrepancy that he can be excluded as the second robber based on his height. Nor can De-juan be strongly implicated as the second robber based on the fact that he is taller than Stanley.
But even if Stanley could be eliminated as one of the robbers who entered the bank based on his height or skin tone, it does not identify the second robber as Dejuan. Many African-American men undoubtedly have “darker” skin and stand between 5'8" and 5'11" tall. And some of the men who meet both of those criteria may also be members of the Hoover Crips gang or have other connections to Vernon and/or Stanley. Indeed, Vernon was accused of conspiring to rob the Metro and CVS pharmacies with multiple people who may fit the general description. Therefore, even if it can be reasonably inferred that a third person participated in ’ the Arvest Bank robbery, the height or skin tone evidence does not strongly identify Dejuan as that person.
Finally, the strength of the evidence related to the robbers’ respective identity based on their skin tone and height is debatable because the government posited inconsistent theories at trial regarding the roles that the lighter-skinned or darker-skinned robber played during the robbery. During the Arvest Bank robbery, one of the robbers stayed in the lobby holding the victims at gunpoint while the other robber jumped over the teller counter to collect the cash. The one eyewitness who claimed he could distinguish between the robbers based on their relative skin tones testified the darker skin-toned robber (allegedly Dejuan) jumped behind the teller counter while the lighter skinned-toned individual (allegedly Vernon) stayed on the other side controlling the victims. The government made much of this fact in opening arguments, stating the evidence would show that Vernon held the victims at gunpoint while “Dejuan Hill mounts the- teller coun
Finally, I address the fact that law enforcement officers searching the Hill residence located only one set of clothing worn by the robbers. The majority adopts the government’s current theory that the absence of a second set of clothing in the Hill residence strongly indicates Dejuan was wearing the second set when he drove away. But here too, the evidence is weaker than the government acknowledges. Although law enforcement officers found one hoodie, one ski mask, and one pair of black pants- in the house, officers also found two pairs of black gloves and numerous generic gray and black tee shirts matching the description of the clothes worn by the second robber. Thus, the government’s characterization of this evidence as establishing that the officers executing the search warrant found only one set of robber’s clothing is generous.
In summary, I would conclude the prejudicial evidence admitted under the guise of prosecuting a global conspiracy and the weakness of the evidence connecting De-juan to the Arvest Bank robbery indicate the variance substantially prejudiced De-juan’s right to a fair trial. As a result, I would remand to the district court for a new trial.
. The record makes clear that there was evidence of six smaller conspiracies, not five as the majority suggests. As the majority notes, the government established evidence of seven robberies, including the (1) IBC Bank; (2) Dooley Pharmacy; (3) Barnes Pharmacy; (4) Metro Pharmacy; (5) Tulsa Credit Union; (6) Arvest Bank; and (7) CVS Pharmacy (neither charged nor identified as an overt act furthering the global conspiracy but offered as prior acts evidence). However, all of these robberies — with the exception of the IBC Bank—
. Specifically, the government alleged that Marquis Devers and Kenneth Hopkins robbed the Dooley Pharmacy; Deandre Hopkins and two unknown others robbed the Barnes Pharmacy; Vernon, Mr. Devers, Deandre, Chris Lewis, Dontáyne Tiger, and Duncan Herron robbed the Metro Pharmacy; Vernon, Mr. Devers, and Mr. Lewis robbed the CVS Pharmacy;. Mr. Lewis, Deandre, Mr. Devers, Mr. Tiger, James Miller, and Duncan' Herron robbed the Tulsa Credit Union; and Vernon, Dejuan, and Stanley robbed the Arvest Bank.
. The confusion of the jury is highlighted by the fact that the government’s evidence actually refuted the existence of a global conspiracy. For example, the evidence established that the alleged global coconspirators are all members of different sets of the Hoover Crips gang. Yet the government’s witness, a former Hoover Crips gang member, testified that each set operates within itself, and there is no individual at the top who has control over multiple sets. He also explained that if the members of a particular set committed a robbery, they would be unlikely to share that money with anyone outside their set or to give it to someone who might be higher in the
. The majority concludes that the risk of prejudice from this largely irrelevant evidence, must not have been great because "Dejuan did not object to the introduction of much of the evidence introduced to support the global conspiracy." But Dejuan did object to the use of evidence related to the global conspiracy in which he played no role. Before trial, he argued that he should not be joined with the other defendants under Federal Rule of Criminal Procedure 8 because he was not a part of the global conspiracy (a point on which Dejuan was ultimately correct). He also argued that even if joinder was proper, the court should sever his trial because the evidence related to the global conspiracy would be unfairly prejudicial. The court rejected his. arguments. Once it did so, all evidence related to the global conspiracy was relevant and admissible in the joint trial, making further objection futile. It is for precisely this reason that we must be "vigilant” in determining whether the government’s decision to charge a global conspiracy, which it fails to prove at trial, has prejudiced a defendant. See United States v. Evans,
. The majority concedes there was an overwhelming amount of evidence admitted that had little relevance to Dejuan, but contends the admission of this evidence actually bene-fitted Dejuan by allowing him to compare his behavior to that of more culpable defendants. Specifically, the majority claims "a reasonable jury might wonder whether Dejuan was really involved in the Arvest Bank robbery considering the dearth of evidence that he was involved in the other criminal activity. ” It is true that Dejuan tried to minimize the impact of the prejudicial evidence by accurately arguing in closing that the government had put on very little evidence tying him to the global conspiracy or the Arvest Bank robbery. But I do not agree this weighs against a finding of prejudice. Despite the dearth of evidence admitted to prove a global conspiracy, the jury found one existed and that Dejuan participated in it. Thus, notwithstanding counsel’s best efforts, the jury was obviously ' confused in a manner that prejudiced Dejuan.
. There was no evidence introduced at trial regarding Dejuan’s actual height, although he was present and could be observed by the jury. Information in the record indicates that Dejuan is 5'10" tall.
. The compelling nature of this evidence is also undermined by the fact that when prosecuting Stanley for robbing the Arvest Bank, the government considered the clothing found in the home to be consistent with their theory that only Vernon and Stanley had participated in the Arvest Bank robbery. See United States v. [Vernon] Hill,