United States v. White , 136 F. App'x 540 ( 2005 )


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  •                                                                                                                            Opinions of the United
    2005 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    6-28-2005
    USA v. White
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 04-1026
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    Recommended Citation
    "USA v. White" (2005). 2005 Decisions. Paper 956.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2005/956
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    NOT PRECEDENTIAL
    IN THE UNITED STATES COURT
    OF APPEALS
    FOR THE THIRD CIRCUIT
    NO. 04-1026
    UNITED STATES OF AMERICA
    v.
    SHEREE WHITE
    Appellant
    On Appeal From the United States
    District Court
    For the Eastern District of Pennsylvania
    (D.C. Crim. Action No. 02-cr-00375)
    District Judge: Hon. Charence C. Newcomer
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    June 7, 2005
    BEFORE: AMBRO, STAPLETON and ALARCON,*
    Circuit Judges
    (Opinion Filed: June 28, 2005)
    Hon. Arthur L. Alarcon, Senior United States Circuit Judge for the Ninth Circuit, sitting
    by designation.
    OPINION OF THE COURT
    STAPLETON, Circuit Judge:
    Because we write only for the parties who are familiar with the facts, we do not
    fully recount them below. In 2003, a jury sitting in the United States District Court for
    the Eastern District of Pennsylvania returned a verdict against Appellant Sheree White,
    finding her guilty on three counts of a Superseding Indictment: Count 1 – conspiracy to
    commit armed bank robbery, Count 2 – armed bank robbery, and Count 3 – use of a
    firearm during commission of a violent felony. Appellant appeals her convictions and
    sentence. We will affirm the judgment of conviction, vacate the sentence, and remand for
    resentencing.
    I. Rule 404(b) Evidence
    Appellant challenges the admission, pursuant to Federal Rule of Evidence 404(b),
    of evidence of two prior armed robberies committed by an unindicted co-conspirator, both
    of which were committed with the assistance of the unindicted co-conspirator’s girlfriend
    at the time. Appellant argues that the evidence should have been excluded as not meeting
    the threshold for relevance and as more prejudicial than probative. We review the
    District Court’s decision to admit or exclude evidence under Rule 404(b) for an abuse of
    discretion. United States v. Butch, 
    256 F.3d 171
    , 175 (3d Cir. 2001).
    2
    Rule 404(b) countenances the admission of evidence of other crimes for purposes
    other than the purpose of proving the character of a person, in order to show action in
    conformity therewith. Other permissible purposes include, for example, to show “motive,
    opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
    accident.” Fed. R. Evid. 404(b)1 ; see also United States v. Johnson, 
    199 F.3d 123
    , 128
    (3d Cir. 1999) (favoring the admission of such evidence “if relevant for any other purpose
    than to show a mere propensity or disposition on the part of the defendant to commit the
    crime”).2
    Admissibility under Rule 404(b) requires (1) a proper evidentiary purpose; (2)
    relevance under Rule 402; (3) a weighing of the probative value of the evidence against
    any unfair prejudicial effect under Rule 403; and (4) a limiting instruction concerning the
    purpose for which the evidence may be used. Becker v. ARCO Chemical Co., 
    207 F.3d 176
    , 189 (3d Cir. 2000). The parameters of relevant evidence under Rule 404(b) are set
    1
    Rule 404(b) provides:
    Evidence of other crimes, wrongs, or acts is not admissible to
    prove the character of a person in order to show action in
    conformity therewith. It may, however, be admissible for
    other purposes, such as proof of motive, opportunity, intent,
    preparation, plan, knowledge, identity, or absence of mistake
    or accident. . . .
    2
    Admissible evidence under Rule 404(b) is not limited to evidence against defendants;
    as opposed to Rule 404(a), which relates to character evidence of an accused, witness or
    victim, Rule 404(b) applies to other acts evidence regarding a “person.” See United
    States v. Lucas, 
    357 F.3d 599
    , 605 (6th Cir. 2004) (noting that Rule 404(b) is not limited
    to evidence concerning the accused).
    3
    by the material issues and facts the government must prove to obtain a conviction. See
    United States v. Sampson, 
    980 F.2d 883
    , 887 (3d Cir. 1992).
    The first two requirements are easily met. Other acts evidence satisfies the first
    two requirements if it is “probative of a material issue other than character.” Huddleston
    v. United States, 
    485 U.S. 681
    , 686 (1988). Here, the government was charged with
    proving the existence of the conspiracy charged in the indictment. The government
    therefore bore the burden of showing that the unindicted individual, Williams, as well as
    Appellant, were conspirators. The theory of the conspiracy was that Williams enlisted
    Appellant, his then-girlfriend, to help orchestrate a bank robbery. The other acts evidence
    was offered to show that the robbery in question was planned and executed according to
    Williams’ established methodology, i.e., that Williams’ “signature crime” was enlisting
    and using girlfriends to act as his insider. This evidence is clearly probative of the issue
    of whether William’s involvement with the defendant was innocent, or part of a
    conspiracy – i.e., it is relevant to show that it was more probable or less probable that
    Williams was involved as a conspirator.
    With regard to the third prong of the analysis, a significant danger of undue
    prejudice will only be found in cases where there are “substantial possibilities that a jury
    will harbor strong adverse sensitivity to the challenged evidence.” United States v.
    Sriyuth, 
    98 F.3d 739
    , 748 (3d Cir. 1996). Here, the probative value of the evidence was
    not substantially outweighed by its prejudicial effect. The government had a clear need
    4
    for the evidence given its burden of establishing the knowing involvement of both
    Williams and Appellant and the circumstantial nature of its case. The evidence was not
    of a distracting, confusing, or emotionally charged nature that was likely to mislead a
    jury. Finally, the other acts were in no way imputable to Appellant (indeed, the evidence
    was from before Appellant ever knew Williams), and so there was no unreasonable risk
    that the evidence might be misconstrued as propensity evidence. Furthermore, the
    District Court gave an appropriate limiting instruction concerning the purpose for which
    the evidence may be used. United States v. Mastrangelo, 
    172 F.3d 288
    , 294 (3d Cir.
    1999).
    In sum, the other acts evidence had relevance to the factual issues at trial, and the
    District Court properly determined that the evidence’s probative value outweighed its
    prejudicial effect. There was, therefore, no abuse of discretion in ruling the evidence
    admissible at trial.
    II. Sentence
    Appellant also challenges her sentence under United States v. Booker, 
    125 S. Ct. 738
    (2005). The Government concedes that it is appropriate for this Court to vacate
    Appellant’s sentence and remand for resentencing in light of Booker. We agree.
    Accordingly, we will vacate Appellant’s sentence and remand for resentencing in
    accordance with Booker. United States v. Davis, 
    407 F.3d 162
    (3d Cir. 2005) (denying
    rehearing en banc).
    5
    III. Conclusion
    Appellant’s judgment of conviction will be affirmed, her sentence will be vacated,
    and this case will be remanded for resentencing.
    6