United States v. Roberts , 176 F. App'x 402 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4586
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TRAVANTI ROBERTS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-370)
Submitted: March 22, 2006 Decided: April 18, 2006
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ray Coit Yarborough, Jr., Florence, South Carolina, for Appellant.
Rose Mary Parham, Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Travanti Roberts was convicted, after a jury trial, of
two counts of robbery, two counts of use of a firearm in
furtherance of a crime of violence, and one count of possession of
a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), (c), (e), 1951(a) (2000). The court
sentenced Roberts to 474 months’ imprisonment.
Roberts’ counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating there were no meritorious
issues for appeal, but addressing whether the district court erred
by denying several motions to suppress, by denying his challenge to
a witness’s testimony, and by denying his motion for judgment of
acquittal challenging the sufficiency of the evidence. Roberts was
notified of the opportunity to file a pro se supplemental brief,
but chose not to do so.
Roberts’ attorney first raises the issue of whether the
court erred by denying his motion to suppress a video of Roberts’
interrogation; he relies on Doyle v. Ohio, 426 U.S. 610 (1976). We
conclude, however, that because Roberts did not remain silent, and
the interrogator’s comments were not used to impeach Roberts at
trial based on his silence, Doyle does not apply. See United
States v. Quinn, 359 F.3d 666, 677-78 (4th Cir. 2004).
Roberts also argues the interrogator’s repeated
suggestion that Roberts “think about that baby,” referring to
- 2 -
Roberts’ unborn child, was unduly coercive. To determine whether
a statement was voluntarily made, this court must consider the
“‘totality of the circumstances,’ including the characteristics of
the defendant, the setting of the interview, and the details of the
interrogation.” United States v. Pelton, 835 F.2d 1067, 1071 (4th
Cir. 1987). Though “[a]n appellate court must make an independent
determination on the issue of voluntariness[,] . . . the district
court’s findings of fact on the circumstances surrounding the
confession are to be accepted unless clearly erroneous.” Id. at
1072 (citations omitted). We conclude the interrogator’s
statements were not unduly coercive. See, e.g., United States v.
Braxton, 112 F.3d 777, 780 (4th Cir. 1997) (“The mere existence of
threats, violence, implied promises, improper influence, or other
police activity . . . does not automatically render a confession
involuntary”).
Next, Roberts’ attorney raises the issue of whether the
court erred by denying Roberts’ motion to suppress a diary left in
the vehicle used in connection with the robberies. We review the
district court’s factual findings underlying a motion to suppress
for clear error and its legal determinations de novo. Ornelas v.
United States, 517 U.S. 690, 699 (1996); United States v. Rusher,
966 F.2d 868, 873 (4th Cir. 1992). When a suppression motion has
been denied, this court construes the evidence in the light most
favorable to the government. United States v. Seidman, 156 F.3d
- 3 -
542, 547 (4th Cir. 1998). We conclude the diary entries are not
hearsay, but are simply evidence that connects Roberts to the
robberies. Thus, there was no error.
Roberts next claims the district court erred under Fed.
R. Evid. 404(b) by allowing a witness to testify regarding a
robbery she participated in with Roberts four months prior to the
charged robberies. Review of a district court’s determination of
the admissibility of evidence under Rule 404(b) is for abuse of
discretion. See United States v. Queen, 132 F.3d 991, 995 (4th
Cir. 1997). A district court will not be found to have abused its
discretion unless its decision to admit evidence under Rule 404(b)
was arbitrary or irrational. See United States v. Haney, 914 F.2d
602, 607 (4th Cir. 1990) (upholding admission of evidence of
similar prior bank robberies). Evidentiary rulings are also
subject to review for harmless error under Fed. R. Crim. P. 52, and
any error will be found harmless if the reviewing court can
conclude “without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error.”
United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (quoting
United States v. Heater, 63 F.3d 311, 325 (4th Cir. 1995)).
Evidence of other crimes is not admissible to prove bad
character or criminal propensity. Fed. R. Evid. 404(b). Such
evidence is admissible, however, to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
- 4 -
mistake or accident.” Id.; see Queen, 132 F.3d at 994. Rule
404(b) is an inclusive rule, allowing evidence of other crimes or
acts except that which tends to prove only criminal disposition.
Queen, 132 F.3d at 994-95; United States v. Rawle, 845 F.2d 1244,
1247 (4th Cir. 1988). Evidence of prior acts is admissible under
Rule 404(b) and Fed. R. Evid. 403 if the evidence is: (1) relevant
to an issue other than the general character of the defendant,
(2) necessary, (3) reliable, and (4) if the probative value of the
evidence is not substantially outweighed by its prejudicial effect.
Queen, 132 F.3d at 997. Limiting jury instructions explaining the
purpose for admitting evidence of prior acts and advance notice of
the intent to introduce prior act evidence provide additional
protection to defendants. Id. We find the testimony at issue here
was consistent with a common plan. Also, the limiting instruction
provided an additional protection to Roberts. Therefore, the court
did not abuse its discretion.
The final issue raised is whether the court erred in
finding sufficient evidence to deny Roberts’ Fed. R. Crim. P. 29
motion for judgment of acquittal. We review the district court’s
decision to deny a Rule 29 motion de novo. United States v.
Alerre, 430 F.3d 681, 693 (4th Cir. 2005). Where, as here, the
motion was based on a claim of insufficient evidence, "[t]he
verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
- 5 -
support it." Glasser v. United States, 315 U.S. 60, 80 (1942).
This court "ha[s] defined ‘substantial evidence’ as ‘evidence that
a reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable
doubt.’" Alerre, 430 F.3d at 693 (quoting United States v. Burgos,
94 F.3d 849, 862 (4th Cir. 1996) (en banc)). This court "must
consider circumstantial as well as direct evidence, and allow the
Government the benefit of all reasonable inferences from the facts
proven to those sought to be established." United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). After reviewing the
record, and in light of the substantial evidence against Roberts,
we find this issue is without merit.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment. This
court requires that counsel inform his client, in writing, of the
client’s right to petition the Supreme Court of the United States
for further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel's motion must state that a
copy thereof was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately
- 6 -
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
- 7 -