*1 suрervise sit courts do not federal the administration prisons, state Id., to the States.” interest of acute at-, at 2540. 96 S.Ct.
-U.S. pronounce- latest of these light Court, judgment of
ments is affirmed. court
district
AFFIRMED. America, Appellee, STATES
UNITED FOUTZ, Jr., Appellant. Edward
Pembrick
No. 75-2152. Appeals, Court
Fourth Circuit. 6,May 1976.
Argued 16, 1976. Aug.
Decided
employees testified that appeared Foutz robber. No fingerprints scene, were found and the by the photographs taken bank surveillance apparently helpful camera were in iden- *3 presented The an ali- tification. defense as counsel], [court-appointed Ward D. Peter Washington police a cadet who bi witness Defender, Baltimore, Public Federal Asst. certainty testified with considerable and Bernstein, Federal Public Md.'(Charles G. specificity that Foutz was with her Md., brief), Baltimore, ap- on for Defender, Washington the time robbery. pellant. 13, 1975, the On March same bank was (Jervis Kellough, law student S. Steven by group robbed a of three black males. Robert A. Rohr- Atty., and Finney, U. S. They by the front entered door. One rob- Baltimore, Md., Atty., on Asst. U. S. baugh, ber, Foutz, allegedly stood near door brief), appellee. for holding handgun employees. a bank He wore may a wide-brimmed hat and HAYNSWORTH, Judge, Chief Before had on a turtleneck sweater. The other WIDENER, Judges. Circuit and WINTER two vaulted the robbers tellers’ counter WINTER, Judge: position Circuit near number two money and took from several tellers’ drawers. All three Foutz, Jr. was convict- Edward Pembrick escaped robbers then down the same side robbing Kensing- of by jury a twice ed by gunman pre- street used the lone in the ton, of Bank of Maryland, branch robbery. vious There were observed Bethesda, of 18 U.S.C. 2 and in violation §§ entering an automobile was shown to Although (b), (d), (f). the two 2113(a), registered employ- be to Foutz. Two bank place two and onе-half took robberies ees that Foutz testified resembled the rob- was tried for both apart, Foutz months ber who near the stood door and held the his proceeding; in one motion for offenses reveals, gun. the record So far as no fin- joinder under prejudicial Fed.R. from relief found, gerprints apparently were by the district court. 14 was denied Crim.P. photographs depict surveillance did not that appeal, argues Foutz district On robber be alleged to Foutz. The defense by granting his abused discretion judge presented an alibi witness who was unable prejudice He claims a severance. to account for Foutz’ whereabouts at the the same from fact arose robbery. time of the crimes, had evidence of both whereas heard each separately robbery, tried been charged he Foutz was with both robberies indictment, would not have permitted offense as Fed.R. trial for the other. admissible at the 8(a), been Crim.P. since offenses were of the new, remand and reverse and agree, “same or character.” He then made robbery. each trials for timely a for a motion severance under Rule 14, prejudiced by that he would alleging I. joint a The motion The trial. was denied. verdict returned a of both 1974, male, 30, a lone black December On for a robberies. A motion new trial on the robbed Bank of handgun, armed joinder grounds prejudicial was denied. Maryland. He en- Kensington, Bethesda twenty-five years, sentenced to door, through vaulted the the front tered imprisonment offense, for each the sen- position teller number counter at tellers’ concurrently. tences to run two, from two tellers’ money and took through the same door He left drawers. II. The robber up walked side street. pulled up over Rule that a provides a turtleneck sweater 14 severance
wore granted hat. that a or beret-type appears and a Two bank it mouth “[i]f 736 prejudiced by relevant to his innocence a spe granting crime, . . . of a cific law regards
of offenses the inference Rule 14 is committed general under specific severance from criminality so discretion of the district court. United weak, danger great, so Catena, 1319, (3 F.2d States 500 1326 attempts prevent it conviction on 1047, Cir.), denied, cert. 419 U.S. S.Ct. account of a defendant’s bad character. 621, States (1974); L.Ed.2d Thus, evidence of “other crimes” which is 16, (1 1971), Clayton, F.2d cert. 18 Cir. prove relevant disposition criminal denied, 1200, 405 U.S. S.Ct. universally acknowledged to bе inadmissi United States v. (1972); L.Ed.2d 404(b); ble. Fed.R.Ev. United States v. Adams, (2 1970). In 434 F.2d 758 Cir. Woods, 1973), (4 133 Cir. cert. case, we believe it was abuse denied, 415 U.S. 94 S.Ct. *4 grant not to severance. discretion Bradley v. United (1974); 875 L.Ed.2d States, 7, U.S.App.D.C. 1113, 140 433 F.2d begin analysis our with Rule 8 (1969); 1117-18 McCormick on Evidence permits under three circum which 1972). 190 447 (Cleary at ed. § (1) if the offenses “are of the same stances: character”; (2) they if “are based or similar One consequence inevitable of a transаction”; (3) act or the same or if on joint trial is that the will be aware of or are based “on two more acts or they of considering evidence one crime while the together transactions connected or constitu defendant’s or innocence of another. or ting parts plan.” of common scheme If the rationale of the “other crimes” rule is case, joinder the instant initially was correct, it would seem that some degree of the permissible because offenses were prejudice necessarily is by created permit the same or similar character. When ting the jury to hear evidence of both joined are two or more offenses for trial States, crimes. See Drew v. United 118 solely theory, on of preju three sources 11, 85, U.S.App.D.C. 331 (1964); F.2d 89-90 possible may justify are dice which the 8 Moore’s Federal Practice at 8-22 ¶ 8.05[2] granting (1) of a severance under Rule 14: 14-8; ¶ and 14.03 at 14-7 Wright, to 1 jury may confuse cumulate the Federal Practice Procedure 143 at § evidence, and convict the defendant of one 317-18; Note, Single Joint and Trials Un or both crimes when it would not convict der Rules 8 14 of the Federal Rules of if keep of either it could him evidence Procedure, 553, Criminal 74 L.J. Yale 556- (2) properly segregated;1 the defendant (1965). 58 defenses, may presenting confounded where he desires assert privilege as to Although the law does not allow against respect self-incrimination with to consideration of other as crimes evidence of other;2 (3) crime not or one but a defendant’s disposition, criminal evidence conclude that is of other is crimes admissible certain then guilty find him purposes other probative because its value disposi of the other because of his criminal thought then its outweigh prejudicial record, As view tion. we we are con effect. In those instances evidence preju here with the latter cerned form of one crime is a separate admissible at trial dice. another, it follows that a defendant will layman’s While mind a de any suffer additional if the disposition logically fendant’s criminal two See Unit- together.3 offenses are tried States, U.S.App.D.C. require See 3. every 1. Drew v. United 118 This standard does not 85, (1964); Wright, relating 331 88 1 F.2d Federal item to one offense be separate other, 222 at § Practice and Procedure 437. admissible in a trial for the but rather looks in a broader sense to whether States, U.S.App.D.C. relating United 118 2. See Cross v. rules to “other crimes” evidencе have (1964); And, 8 335 F.2d 989-90 Moore’s been satisfied. at least in the case of crimes, ordinarily ¶ Practice 14.03 14-11 14-14.1. Federal non-violent it is fact of We do not (4 think that the two 499 F.2d Bragan, v. robberies ed States Williamson, were so similar as to warrant 1974); v. inference States Cir. they by 1973); perpetrated were (5 Bradley v. Unit same Cir. 1118; individual. The same bank was Drew v. United robbed States, F.2d at ed twice; this, beyond 90; differences States, between 8 Moore’s Federal 331 F.2d the crimes 14-8.2; striking are more than the Wright, simi- Feder ¶ 14.03 at Practice larities, and such similarities as do exist “all 222 at 439. and Procedure § al Practice pattern fit into tactical obvious joined are under offenses When suggest would anyone itself to almost dis- they based ground that “are Rule 8 on the posed depredation commit a of this sort.” transaction or on two or act or same States, Drеw United 331 F.2d at (rob- togeth connected or transactions more acts bery High’s of two ice cream by stores of a constituting parts common or er negroes wearing sunglasses); see United manifest that evi it is plan,” scheme Carter, U.S.App.D.C. 238, States ordinarily offense dence (two (1973) by F.2d 349 robberies a man trial for the other. separate at a admissible wearing hat; a fur coat and a fur held “are joined because are When offenses insufficient similarity). character,” however, same or robbery first by committed trials is not so admissibility at male; single black the second three clear. *5 persons. instances, such In both access to argues case, government the In this door, through the bank the was front hard would robbery bank that of one evidence a ly congruity. In remarkable the first a trial for the other at hаve been admissible the robbery, vaulted the gunman counter at identity perpe of the the prove in order to two; position teller in the second, number trator, “handiwork” or the so-called under two “bag” the men vaulted the counter at the other crimes exception to “signature” point. same apparent the This similarity if prosecu the exception, rule. Under significance, however, loses most of its be to show tending evidence produce tion can cause, government’s under theory the of the the “other committed that the defendant case, Foutz not one the was men who was in crime,” committed if that and the vaulted counter in the second robbery, to that of the offense a manner so similar but was near the gun stationed door a being is tried that which the defendant for trained on employees. the bank the first person that the same highly probable is it crime, the wearing robber was described as crimes, then evidence of committed both hat; beret-type a turtleneck and a sweater prove is admissible to crime” the “other person the claimed to been Foutz in the offense the committed that defendant robbery the second was described as wear charged. See United he is with which ing a hat perhaps wide-brimmed a tur 133-34; Woods, 484 F.2d at v. States possible, tleneck. This limited similarity of 190 at 449. The McCormick, supra, § apparel compelling. is than less The first showing especially that proof, government’s robber was walking last seen down a side robbers, by the automobile use of Foutz’ street; the the trio in the second crime fled in a the Foutz as one of identify tended to getaway car parked which had been the Thus, robbery. the second perpetrators street. the same Thus as far as evidence were committed in revealed, the two robberies method of escape if the locomotive manner, case; evidence of the similar was different in each use of sufficiently have been admissible side street of a main thoroughfare would instead robbery second first, is flеeing the and un in of a crime the site separate trial ingenious criminal join uniquely in stroke of artist not inhere could prejudice toward ry. der. prior having engaged the details commission. Baker v. or sub- of its United
the defendant’s
States,
U.S.App.D.C.
likely
F.2d
401
975
sequent
that
is
to be
criminal conduct
(1968) (footnote omitted).
jury
eyes
damaging
the
rather
than
in the
showing
ground
that
on the
that evidence
“are of the
We conclude
same or
perpetrators
character,”
one of the
was
evidence of
of
robbery
not have
13, 1975
separate
March
fense would not be admissible at a
identity
as the
prove
other,
admitted
been
trial for
the saving
of time ef
30,1974 crime,
of the December
perpetrator
joint
aby
fected
trial is minimal. “Ordi
of-
separately for that
tried
he been
had
narily,
only
by
time
saved
such
that Foutz
therefore conclude
We
fense.
selection of one
rather than two.
by the
sufficiently prejudiced
district
Except
witnesses,
for character
the evi
motion for sever-
of Foutz’
denial
court’s
entirely
be
usually
separate.”
dence will
denial
abuse
to constitute that
ance
¶
Moore’s Federal Practice
at 8-19
8.05[2]
requiring reversal.4
discretion
(footnotes omitted);
Wright,
see 1
Federal
318; Note,
Practice and Procedure
§
III.
Thus,
supra,
at 560.
real conve
government urges
any
joint
nience served
permitting
trial of
joint trial of
resulting from the
prejudice
against
unrelated offenses
the wishes of the
by the
was cured
court’s
two robberies
convenience of the
required
limiting instructions
prosecution
securing
a conviction.
evi
offense and the
each
jury to consider
reject
therefore
the government’s ar-
separately.
It
said
thereof
dence
gument. The reasons
rule which
distinct,”
“simple and
the evidence is
invokes are largely inappli-
segregate
jury can
trusted
defendant,
cable and the
some
position finds
properly. This
arising from the
govern-
weakness
v.
See United States
support in
cases.
other,
ment’s one case
strength
(2
1970);
Adams,
F.2d
758-59
Cir.
so
presume
marked
we cаnnot
that the
States,
F.2d
at 91-92
Drew
limiting
adhered to
instructions and
Lotsch,
(dictum);
properly “segregate^]
evidence into
[the]
Cir.),
denied,
(236
cert.
U.S.
boxes,”
*6
intellectual
Bruton v.
793,
(1939).5
83 L.Ed.
S.Ct.
States,
123, 131,
391 U.S.
88 S.Ct.
permits
jury
While the law
the
to
often
1625,
1620,
(1967),
Washington normally hе where resided. CROWE, Appellant, Niles Nevertheless, permit- argue jury. ted to the matter to the This LEEKE, was error. William D. Director of S. C. De- partment Corrections, Martin, and Joe The inference that one who Warden, Central Correctional Institu- flees from the law is motivated con tion, Appellees. best, weak at guilt sciousness of is No. 75-2099. recognized properly district court strength of is the inference further аttenu Appeals, Court of actively ated defendant has not when the Fourth Circuit. sought capture. danger avoid Submitted May 1976. permitting the inference is further com pounded in a case such as this Aug. Decided 1976. the defendant is wanted for "another infrac tion. situations, many the inference of
[I]n guilt particular
consciousness of upon flight] is so uncertain [based ambiguous and the preju- evidence so
dicial that forced wonder wheth-
er the to punish- not directed
ing generally the “wicked” rather than
resolving guilt the issue offense
charged. Particularly troublesome are
the cases where defendant flees when
sought crime, be arrested another . is wanted for another crime
Is general accepted? sense of to be
McCormick, supra, (foot- 271 at 655-56 § omitted). *8 V,
I part concur in the result in but think defendant, opinion should show that the telephone involved,
in conversation de- participation
nied in the crime.
I we our further believe should state that
ruling part may in if de- apply V testify trials,
fendant should new express opinion point we no on the
such event. notes We believe that under the circumstances case, no to flight reference should be retrial," permitted upon and that evidence to flight demonstrate should be excluded. REVERSED AND REMANDED. WIDENER, Judge (concurring): Circuit I opinion concur in the result and in the except part of the court V.