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    United States v. Davis, 4th Cir. (2007)

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    The court affirmed Bruce Martin Davis's convictions for attempted aggravated bank robbery, using and brandishing a firearm during a violent felony, and bank robbery. The court found that the district court did not err in admitting evidence of Davis's prior burglaries under Rule 404(b) as the evidence was relevant to prove motive, intent and identification. The court also found that the district court did not err in denying Davis's motion to sever one of the counts, as the offenses were similar and occurred within a short period of time, so joinder was proper.

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    United States v. Davis, 4th Cir. (2007)

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    The court affirmed Bruce Martin Davis's convictions for attempted aggravated bank robbery, using and brandishing a firearm during a violent felony, and bank robbery. The court found that the district court did not err in admitting evidence of Davis's prior burglaries under Rule 404(b) as the evidence was relevant to prove motive, intent and identification. The court also found that the district court did not err in denying Davis's motion to sever one of the counts, as the offenses were similar and occurred within a short period of time, so joinder was proper.

    Original Description:

    Filed: 2007-09-11 Precedential Status: Non-Precedential Docket: 06-4023

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    The court affirmed Bruce Martin Davis's convictions for attempted aggravated bank robbery, using and brandishing a firearm during a violent felony, and bank robbery. The court found that the district court did not err in admitting evidence of Davis's prior burglaries under Rule 404(b) as the evidence was relevant to prove motive, intent and identification. The court also found that the district court did not err in denying Davis's motion to sever one of the counts, as the offenses were similar and occurred within a short period of time, so joinder was proper.

    Copyright:

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    18 views5 pages

    United States v. Davis, 4th Cir. (2007)

    Uploaded by

    Scribd Government Docs
    The court affirmed Bruce Martin Davis's convictions for attempted aggravated bank robbery, using and brandishing a firearm during a violent felony, and bank robbery. The court found that the district court did not err in admitting evidence of Davis's prior burglaries under Rule 404(b) as the evidence was relevant to prove motive, intent and identification. The court also found that the district court did not err in denying Davis's motion to sever one of the counts, as the offenses were similar and occurred within a short period of time, so joinder was proper.

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    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 Daviss

    convictions and sentence.


    First, we reject Daviss assertion that the district
    court erred in admitting evidence of three other burglaries he was
    accused of having committed because the evidences probative value
    was outweighed by its prejudicial effect. Substantial deference is
    due a district courts 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 Daviss other burglaries was relevant and necessary

    - 2 -

    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 courts 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 defendants 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 courts admission of Daviss prior bad acts into evidence
    was not arbitrary or irrational.

    See id. at 996 (holding that the

    - 3 -

    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 Daviss 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


    Daviss 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

    - 4 -

    joinder.
    difficult

    While Davis correctly avers that his defense was more


    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 Daviss motion to sever Count Three.
    Based on the foregoing, we affirm Daviss 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

    - 5 -

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