United States v. Davis , 239 F. App'x 862 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4023
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRUCE MARTIN DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (CR-05-32)
Submitted: August 17, 2007 Decided: September 11, 2007
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. Barry Montgomery, KALBAUGH, PFUND & MESSERSMITH, Richmond,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Jean B. Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bruce Martin Davis appeals his jury convictions and
resulting 174-month sentence for attempted aggravated bank robbery,
in violation of 18 U.S.C. § 2113 (2000) (“Count One"), and using
and brandishing a firearm during the commission of a violent
felony, in violation of 18 U.S.C. § 924(c)(1) (2000) (“Count Two"),
for an incident that occurred in November 2002, and for bank
robbery, in violation of 18 U.S.C. § 2113(a) (2000) (“Count
Three"), for an incident that occurred in April 2003. Davis claims
the district court erroneously: (i) admitted evidence of three
prior bad acts under Fed. R. Evid. 404(b); and (ii) denied his
motion to sever Count Three. Finding no error, we affirm Davis’s
convictions and sentence.
First, we reject Davis’s assertion that the district
court erred in admitting evidence of three other burglaries he was
accused of having committed because the evidence’s probative value
was outweighed by its prejudicial effect. Substantial deference is
due a district court’s evidentiary rulings, see General Elec. Co.
v. Joiner, 522 U.S. 136, 141 (1997), and Rule 404(b) decisions by
the district court are discretionary and will not be overturned
unless arbitrary and irrational, see United States v. Powers, 59
F.3d 1460, 1464 (4th Cir. 1995).
We conclude the district court correctly found that the
evidence of the Davis’s other burglaries was relevant and necessary
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to prove motive, intent, and identification. We also conclude the
evidence was reliable because the prior bad acts evidence consisted
of undisputed scientific DNA evidence and facts to which Davis
stipulated. See United States v. Bailey, 990 F.2d 119, 123 (4th
Cir. 1993) (holding that Rule 404(b) evidence should ordinarily be
admitted as reliable unless it is “so preposterous that it could
not be believed by a rational and properly instructed juror”).
Although Davis vehemently argues that the probative value
of the prior bad acts evidence was substantially outweighed by its
prejudicial effect, we conclude that the district court’s limiting
instructions to the jury, as well as the prior notice regarding the
evidence that was given to Davis by the prosecution, was sufficient
to reduce any prejudicial effect the evidence may have had. See
United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997) (holding
that the fear a jury may improperly use Rule 404(b) evidence
subsides when the trial judge gives the jury a limiting instruction
regarding proper use, and that “the fear of a ‘trial by ambush’
recedes” when the prosecution has given notice of the evidence to
be introduced and “there is no evidence that the prosecution is
placing the defendant’s entire earlier life on trial”). Given the
striking similarity of the circumstances surrounding the prior bad
acts and the crimes with which Davis was charged, we conclude the
district court’s admission of Davis’s prior bad acts into evidence
was not arbitrary or irrational. See id. at 996 (holding that the
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more similar the prior bad act is to the charged crime the more
relevant the prior bad act becomes toward proving intent).
We also reject Davis’s claim that the district court
erred in denying his motion to sever Count Three. The joinder of
multiple offenses is proper under Fed. R. Crim. P. 8(a) if the
offenses are: (1) of the same or similar character; (2) based on
the same act or transaction; or (3) part of a common scheme or
plan. See United States v. Foutz, 540 F.2d 733, 736 (4th Cir.
1976). Even if offenses are properly joined, however, severance is
appropriate if the defendant establishes he would be prejudiced by
the joinder. See Fed. R. Crim. P. 14(a).
We conclude that the district court correctly denied
Davis’s motion to sever Count Three of the indictment because both
counts charged Davis with robbing bank funds in violation of the
same statute, Davis was accused of using tools to cut his way into
both robbed properties, he was accused of wearing a stocking cap
during the commission of both crimes, and the crimes occurred
within a short time span. See Foutz, 540 F.2d at 736; see also
United States v. Acker, 52 F.3d 509, 514 (holding that it is not an
abuse of discretion to deny a motion for severance when “the
offenses are identical or strikingly similar in the method of
operation and occur over a short period of time”).
We also conclude that Davis failed to meet the demanding
burden of demonstrating a strong showing he was prejudiced by the
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joinder. While Davis correctly avers that his defense was more
difficult because the counts were joined, this alone is
insufficient to establish prejudice. See United States v. Goldman,
750 F.2d 1221, 1225 (4th Cir. 1984). Rather, any possibility of
prejudice was reduced since the evidence of each crime would have
been admissible in the trial of the other if the counts had been
severed. See United States v. Cole, 857 F.2d 971, 974 (4th Cir.
1988) (holding that when evidence of the crimes “would be mutually
admissible for legitimate purposes in separate trials for each
offense,” the possibility of prejudice requiring severance is
“greatly diminished”) (internal citation omitted). Because joinder
of the offenses promoted judicial economy, the district court did
not err in denying Davis’s motion to sever Count Three.
Based on the foregoing, we affirm Davis’s convictions and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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