*1 Judgе Russell at the direction of Entered Moreover, quite relevant find it I recording particu- the calls not for Court. Bosch was to any purpose related employees, or for lar In this matters. personnel or employment most distinguishable from regard, the case on business-use-exception cases relied of the telephone line party. Where by either purposes for primarily business at least America, UNITED STATES indiscriminately purpose for is recorded Plaintiff-Appellee, employment but or relating рersonnel not to to incoming callers conduct of only to the bomber, MADDEN, Toy should Defendant- threatening courts Burton identify a in use to be willing Appellant. to find the more be business, employer’s ordinary course of America, UNITED STATES being person’s privacy particular since no Plaintiff-Appellee, intentionally invaded. III. Conclusion Toy MADDEN, Burton Defendant- did not violate hold that Bosch I would Appellant. it used Wiretapping Act because Federal 93-5472, Nos. 93-5606. equipment, or com- telephone instrument thereof, intercеpt in the ordi- calls ponent Appeals, United States Court reverse would nary course of its business. Fourth Circuit. damages Bosch for civil judgment against Argued 1994. June respect- § I therefore 2520. under 18 U.S.C. opinion as Decided Oct. much of the fully from so dissent Bosch, against and con- judgment affirms the opinion. of the in the remainder cur Suggestion Rehearing with Petition for On Rehearing In Banc 24, 1995
Jan. Corporation, appellant, Robert Bosch The sug- rehearing petition for filed a has rehearing in banc. gestion for deny majority panel voted A rehearing. poll on requested a A of the Court member banc, rehearing in and a suggestion for deny judges rehear-
majority voted Widener, Russell, Wil- Judges ing in banc. kinson, Hamilton, voted to and Williams Ervin, banc, Judges the case hear Michael, Hall, Niemeyer, Luttig, Murnaghan, against rehearing banc. and Motz voted partic- disqualified from Judge Wilkins appeal.
ipation in this petition for rehear- denies The Court rehearing bane. ing suggestion way “be- footnote, to in no ing. statement referred in which it calls with a this contention the abovе-mentioned logger reasoning, argument use of the articulated that overt lies” the Bosch, explain proceeds "amorphous,” using potential un- might threat-callers result in reasoning event "belied” fact, is in threats; their lines to make monitored employees who that the few Bosch’s statement argument. I am entirely unrelated to find it logger have directed could did know about majority's to understand at a loss therefore telephones to using employees the monitored reason to no business that there was conclusion lines. See personal calls on unmonitored make relatively logger secret. keep the use of the join this reason- slip op. at n. 14. I cannot *2 Lee, III, ARGUED: Andrew Silver MD, Springs, appellant. Joyce for Kallam McDonald, Baltimore, MD, Atty., Asst. U.S. appellee. Lynne Battag- ON BRIEF: A lia, Baltimore, MD, Atty., appellee. U.S. ERVIN, WILKINS, Judge,
Before Chief BUTZNER, Judge, Circuit Senior Judge. Circuit by published Vacated remanded opinion. Judge Chief ERVIN wrote the majority opinion, in which Judge Senior joined. Judge BUTZNER WILKINS wrote dissenting opinion.
OPINION
ERVIN, Judge: Chief Toy Madden was indicted on four counts of bank in violation of 18 U.S.C. 2113(a). § trial, The counts were severed for and Madden was convicted on Count of the indictment, after which the dis- remaining missed the counts. Madden sub- sequently was sentenced to 240 months im- prisonment. Jurisdiction in the district court proper § under 18 U.S.C. 3231. Mad- appeals, asserting now that the evidence support insufficient to his conviction and prosecution improperly introduced evidence of use in violation of Federal 404(b). Rule of Evidence Jurisdiction in this proper cоurt § under 28 U.S.C. While we believe that the evidence was suffi- conviction, support cient to agree we Madden that the evidence of error, instance inwas and that the error here was not harmless. We thus vacate mand for a new trial.
I.
On November an individual wear- ing sunglasses and a hooded sweatshirt with the hood over his head entered a branch of Maryland National Bank located in the shopping Rotunda mall at 711 West 40th Street in Baltimore and stood in line. When came, turn the robber went to a teller station prеsent- staffed Shari Meade and note, ed to her a which stated: up! This is a hold gun! do have a Burley cooper- most Although was not the Bills No Marked witness, intention- expressive either ative live. dye packs, No not, certainly the most damn- ally or he was envelope in an money Put He testified that he had ing to Madden. *3 $20.00s they that since childhood and known Madden from each other lived across the street $100.00s that, Burley sitting Baltimore. related while $50.00s during late Madden in Madden’s truck by the teller as described The robber was robbery him аbout the Rotun- had told male, age, well years 25 to 30 about black Maryland National mall branch of the da complexioned. J.A. 25-26. built and dark Burley that he was Bank. Madden related $4,501 and he left gave the robber The teller was, easy surprised at how the bank bank, note behind. leaving the demand police helicopter had re- quickly the how fingerprints. J.A. 84. He left no quickly robbery, and how sponded after the Mad- get had to his truck. he been able of the demand note side The reverse Burley easy because he told that was company memorandum to to be a turned out just gave the teller the note. He went Sprinkler, Mak inform- employees of Fire all him mon- gave then some said that the teller meeting. mandatory ing of a staff them just got into his ey, and walked out and he signed by “Kenneth memorandum police lot across from a parking truck in a Smith, Manager.” From Jr. Construction Burley that in He also instructed station. Smith, that investigators learned Mr. Burley robbery, should performing a bank paycheck included in envel- memo had been note, on the stat- put the amounts demanded September employees around opes to all hundreds, ing Burley request should that employees were ab- Four Fire Mak 1992. told Bur- Madden also fifties and twenties. day of the Rotunda on the sent from work sweat- ley had worn a hooded that Madden including African-Ameri- robbery, two bank during rob- sunglasses the Rotunda shirt and Madden, of the two was employees. One can away, and that bery that later thrown he had problems truck had called with who while good disguise to wear were a Eventually, photo was morning. Burley tоld robbing Madden also a bank. who, array Meade photo in a for Ms. placed put fingernail polish on he should clear uncertainty, by pro- some expressing while leaving prints, and fingertips» to avoid photo picked Madden’s cess elimination open using his knuckles he doors should group. out reason. for the same initial in- obtained an The United States testimony, howev- Burley gave this Before bank on a different against dictment Burley’s er, rela- established prosecutor December 1992. robbery that occurred on Madden, largely on and relied tionship to is- superseding indictment Subsequently, a Bur- using drugs.1 experience their shared separate charging Madden with four sued had he and Madden ley at trial that related robberies, against each different branches neigh- of a together at the home drugs Bank, occurring on Maryland National bor, Keith Jones. 7, 1992, and Jan- November 4 and December 1992, you Now, stat- Q. during the fall Although the uary January 1993. 4 and drugs; using is that you were ed that alone, apparently named Madden indictments correct? Burley assistance of Michael he recruited the A. Yes. Burley robbery. was indicted the second Burley? Q. Mr. And which even- of counts and separately on a number and heroin. A. Cocaine plea agreement with the tually into a entered the occasion Q. you ever have And did States, he was re- part of which anyone else? drugs with against His testi- quired testify Madden. A. Yes. prosecution. mony to the Madden was central however, briefing by government, Following allow tes- Initially, court refused to the district ruling. J.A. 68-70. it reversed regarding use. J.A. 19. timony Madden's Q. you And can tell the Court who? A. Yes.
A. A lot of people. [******] ‡ ‡ ‡ i|: ‡ Q. How often would see Mr. Madden $ grandmother’s at Mr. Jones’s house on Q. And was Mr. Madden ever one of Cottage during Avenue the fall of persons? those 1992? A Yes. Basically every day. A Q. your Did Mr. Madden use immediately J.A. 100-102. It was after this presence? testimony, objection properly to which was A. Yes. counsel, Burley made Madden’s *4 Q. drugs And what kind of was Mr. Mad- counted his conversation with Madden re- using? garding robbery. the bank A Cocaine. closing arguments, In her prosecutor Q. ingesting And how was he the co- separate referred six timеs to the fact that
caine? fact, drugs. Madden abused In the second closing sentence her comments that relat- Snorting A. it. Burley’s testimony ed to discussed this mat- Q. drugs Did he ever use other that ter: you were aware of? Burley grew Mr. and up Mr. Madden A. Heroin. Avenue, together Cottage although on Mr. Q. ingest And how did he the heroin? Madden was somewhat older than Mr. Through A. his nose. Burley, they’d but known each other since Q. drugs Did Madden ever Mr. share They drugs or 1981. both used to- you? with gether. Burley’s You remember Mr. testi- mony using that were cocaine and A. Sometimes. together. heroin Q. you drugs And did ever share with Burley you they Mr. told had robbed Mr. Madden? seeking money banks. He was for his A. Yes. drug habit, suggest you Now, Q. you drugs when used in Mr. evidence shows that Mr. Madden also was presence, you? where were motivated to rob banks because he needed A. Next door. money drugs as well. Q. And where is next door? commonality J.A. 165. She then used the grandmother’s A. Keith house. drugs description Burley’s bolster her relationship to Madden: Q. grandmother’s Keith Jones’s house? All specifics of those details are A. Yes. only know, the bank robber would Q. And thаt was where Mr. Jones was you submit to that Mr. Madden confided living? user, Burley, his fellow Mr. and told
A. Yes. robbery. him about the Q. Now, present was Mr. Jones when Finally, point J.A. 166. she drove this home using and Mr. drugs? Madden were in the last closing argument: moments of her A. Yes. Mr. Madden was a friend of Mr. Bur- Q. And what did Mr. Jones use? ley’s. They drugs together. They thing. A. Same drugs together. shared Mr. Madden logically Burley. would confide Mr. Q. Okay. And were there times when Mr. Jones would share you? Mr. in person Madden wouldn’t confide a
A. Yes.
plea agreement.
who didn’t need a
Mr.
Q. And with Mr. Madden?
Madden
in someone who he knows
confides
accused,
prosecu-
request
upon
using drugs
who’s
robbing
banks
provide reason-
in a criminal case shall
tion
him....
trial,
during
notice
advance
able
J.A.
pretrial notice on
trial if the court excuses
shown,
general
nature
good cause
II.
at
to introduce
such evidence
intends
challenges his convic-
Madden
appeal,
On
trial.
First, he
grounds.
separate
on two
tion
of this evidence
support of the admission
him was
to convict
the evidence
asserts
objections,
over Madden’s
Seсond,
Burley’s
he asserts
insufficient.
use the
that it intended to
indicated
drug usage
testimony regarding Madden’s
explain the
provide motive to
use to
404(b),
of Evidence
Rule
Federal
violated
theory,
had a
robbery.
Under
be
must
therefore
that his conviction
addiction,
paying,
and while he had
in turn.
each issue
consider
We
overturned.
sup-
job,
banks to
he
to rob
fulltime
needed
on the side.
port this addiction
A.
the introduction
theory
underlies
sufficiency of the
reviewing
“In
regarding drug use in a bank
of evidence
conviction, the relevant
suрport
*5
drug
that
users
robbery prosecution
not
is
whether,
in
viewing the evidence
is
question
drug
fellow is a
people and
are bad
since
government,
to the
light most favorable
the
crime with
certainly
the
user he
committed
have found
of
could
any rational trier
fact
precisely the
charged;
that
he is
which
beyond a reasonable
guilty
defendant
the
prohibits.
In
thought
404
of
that Rule
train
Saunders,
F.2d
886
States v.
doubt.”
stead,
theory
such evidence
under which
the
Cir.1989).
(4th
that Mad
56,
believe
60
We
people
idea that
arises from the
is allowed
sufficiency
the evi
challenge to the
den’s
they do
money, and that
to obtain
rob banks
must fail. The
against him
presented
dence
need that
of some financial
so because
a
the back of
note on
left a demand
robber
that a
that tends to show
“Evidence
have.
employer;
from Madden’s
memorandum
living beyond his means is of
defendant is
African-American
was one of two
involving
crime
in
a
probative value
a case
day,
that
from work
employees absent
gain.” United States
resulting in financial
рhotographic
of a
picked out
photo was
(9th Cir.1986)
544,
Feldman,
557
Bur-
shortly thereafter.
by
teller
lineup
the
omitted),
(internal
cert.
quotation and citation
had,
all intents
ley
that Madden
testified
955,
denied,
107 S.Ct.
479 U.S.
account
related
detailed
purposes,
a
(1987). Thus,
government
the
L.Ed.2d 1008
that
including
operandi
a modus
robbery,
the
to demonstrate
understandably
attempts
actually employed.
the one
precisely
why
ac
explain
need
financial
to
some
for such a
review
the standard of
Given
act; in
illegal
to do this
a mоtive
cused had
that suffi
can be no doubt
challenge, there
tie the
instances,
government will
some
support
to
was introduced
cient
requires
illegal act
other
need to some
conviction.
Madden’s
funds,
point we are faced
significant
at which
balancing question between
a difficult
404(b)
prejudice
B.
admissibility under Rule
under Rule
404(b) pro
Rule of Evidence
Federal
prop
vides:
the obvious
fully agree with
We
may
drug
drug
addiction
use
crimes,
osition that
or
wrongs, or acts
Evidence of other
to commit bank
logical
provide motivation
prove the character
to
is not admissible
necessary
robbery
generate
cash
in con-
to show action
person in order
Nevertheless,
are
there
however,
support the habit.
may,
be
formity therewith.
It
Contrary
argument.
to this
limits
purposes, such as
admissible for other
posi
government’s
in
intent,
implied suggestion
motive,
prepa-
opportunity,
proof
drug
be admitted
use should
tion that
identity, or ab-
ration,
knowledge,
plan,
pointed out
robbery prosecution,
accident,
a bank
prоvided
sence of mistake
drug
per
supports
need,
above it is not
se that
753
was not
persuaded that the error
we are
present-
end
fact,
no evidence
there is
In
cash.”
required.
harmless,
a
trial is
and that
new
all
anything at
suggests
appeal that
on
ed
of Madden
situation
concerning the financial
a violation
error is founded on
Where
leaps are the
inferential
his wife. While
404(b),
is
the test for harmlessness
of Rule
evidence,
are
chasms
some
of indirect
heart
assurance,
say with fair
we can
“whether
instance,
bridge;
in this
simply too wide
happened
all that
without
pondering
after
drug use to rob-
that connects
the inference
from the
action
stripping
erroneous
need,
but no evidence
bery is financial
whole,
judgment was not substan
need, and we
demonstrate such
introduced to
States v.
tially swayed
the error.” United
per
se
improper to make
it
simply think
Cir.1980)
(4th
208, 211-12
Nyman, 649 F.2d
a motive
provides
all
assertion
States, 328 U.S.
(quoting
v. United
Kotteakos
direct evidence
robbery. While
for bank
1248,
1239,
750, 765,
C. repeated, highlight the instance we must prose- in the to this matter cleаr references the to whether for us decide It remains statements, it the use closing is cutor’s in this admission error the argument government’s the in the this evidence requires to vacate drug use us Madden’s harm. creates the reversible jury that trial.4 to the for a new remand conviction and statements, prosecutor six times the case, In in the those this a difficult we While believe of Evidence. of the Federal Rules of one the violation urges simply to reverse the court 4. Madden Instead, is neces- question is whether retrial conviction; remedy the appropriate in not the that is sary. predicated on a is in which error an instance 754 use, drug noting majority correctly Madden’s The states that “[i]n
referred to
the
165,
user,”
error,
drugs,”
“drug
appro
J.A.
was a
realm of nonconstitutional
he “used
the
habit,”
165,
166,
priate
“drug
J.A.
who
test of harmlessness ...
J.A.
whether we
heroin,”
165,
assurance,
“using
say
can
pondering
was
cocaine and
J.A.
“with fair
after
drug
happened
in
stripping
that “Mr. Madden confided
his fellow
all that
without
the erro
user,
166,
whole,
Burley,”
judg
Mr.
J.A.
with whom he
neous action from the
“shar[ing] drugs together.”
substantially swayed by
J.A. 184. ment
not
the
”
(“Mr.
exception,
Nyman,
With one
see J.A. 165
Mad-
error.’
v.
United States
649 F.2d
(4th Cir.1980)
was motivated to rob banks
211-12
(quoting
also
because
Kotteakos
money
well.”),
States,
750, 765,
he needed
each
United
328 U.S.
(1946)).
1239, 1248,
prosecutor
time the
connected
apply
Madden with
U.S.—,
In the Matter of SEAFOOD, TY INC. as Owner from Exoneration B for GLORIA F/V Liability. Limitation and or SEAFOOD, INC., Appellee, LIBERTY PRODUCTS, MARINE HERNDON Claimant-Appellant. INC., 93-7572.
No. Appeals, Court United States Fifth Circuit. Nov.