United States v. West, Sr. , 877 F.3d 434 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-2475
UNITED STATES,
Appellee,
v.
NEIL WEST, SR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, Chief U.S. District Judge]
Before
Lynch, Stahl, and Barron,
Circuit Judges.
Jonathan M. Goodman, with whom Troubh Heisler, PA, was on
brief for appellant.
Renée M. Bunker, Assistant United States Attorney, Appellate
Chief, District of Maine, with whom Richard W. Murphy, Acting
United States Attorney, was on brief for appellee.
December 15, 2017
BARRON, Circuit Judge. Neil West was convicted of four
federal offenses in connection with his role in the commission of
two bank robberies that occurred in Maine. He received a prison
sentence of 175 months. He now contends that all four convictions
must be vacated due to errors that the District Court made at
trial, although he only makes substantive arguments regarding two
of those convictions. We affirm.
I.
On November 30, 2016, in the United States District Court
for the District of Maine, West was convicted of two counts of
aiding and abetting bank robbery, in violation of 18 U.S.C. §
2113(a), (d), and two counts of conspiracy to commit bank robbery,
in violation of 18 U.S.C. §§ 371 and 2113(a). The four convictions
stemmed from two separate robberies, with West having been
convicted of both aiding and abetting bank robbery and conspiring
to commit bank robbery in connection with each of these robberies.
The first of the robberies was of a credit union in
Portland, Maine on September 4, 2015. West allegedly acted as the
driver to and from that robbery. The other robbery was of a TD
Bank in Lewiston, Maine on September 12, 2015, where West allegedly
helped plan the robbery and, again, acted as the driver to and
from the robbery.
In his briefing on appeal, West only challenges rulings
by the District Court that pertain to his convictions for the
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offenses relating to the TD Bank robbery. Accordingly, we focus
on his challenges to those two convictions, as he makes no argument
as to why the two convictions relating to the robbery of the credit
union may not stand.
II.
We begin with West's contention that these two
convictions must be vacated due to the District Court's admission
-- over West's objection -- of an approximately 8-minute portion
of a 30-minute video that law enforcement took from the perspective
of the police officer who pulled in behind West as he was driving
a minivan roughly 30 minutes after the TD Bank robbery had
occurred. In its unredacted form, that video runs from the point
at which the police officer pulled in behind the van all the way
up through the point at which the van came to a stop, West exited
the van, and West attempted to run away from the scene.
Prior to trial, West had moved to exclude the entirety
of the video from being entered into evidence. West did so
pursuant to Federal Rule of Evidence 403, which provides that
"court[s] may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice."
The District Court orally granted in part and denied in
part West's motion. The District Court ordered that significant
portions of the video be "redact[ed]" in order to ensure that the
video would not provoke an unfairly prejudicial "emotional
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response" from jurors based on what the video showed -- namely
West driving at "dizzying speeds" through residential
neighborhoods, "zipping in and out" among cyclists and
pedestrians. But, the District Court determined, other portions
of the video could be shown to the jury -- namely the portion that
runs from the point in the video that shows the police officer
pulling in behind the van to the point in the video that shows the
van speeding off as well as the portion of the video that runs
from the point in the video that shows the van pulling off the
paved road to the point in the video that shows the police
arresting the defendant in front of the police cruiser.
A week after the District Court's order, West moved for
reconsideration of the District Court's ruling. The District Court
denied the motion for reconsideration a week before trial. In
doing so, the District Court ruled that under United States v.
Lasseque, 806 F.3d 618 (1st Cir. 2015), the flight from law
enforcement depicted in the video was "part and parcel of the crime
alleged" -- namely aiding and abetting a bank robbery and
conspiracy to commit bank robbery. Thus, the District Court
concluded that the redacted version of the video was highly
probative. In addition, the District Court, relying on United
States v. Wallace, 461 F.3d 15, 25-26 (1st Cir. 2006), found in
the alternative that the redacted version of the video was
probative because the government had proffered "sufficient
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extrinsic evidence of guilt to support the inference that the
flight is also probative of consciousness of guilt."
Before the trial, however, the District Court reviewed
what the government had redacted from the video and instructed the
prosecutor to "redact more of it." The result was that the 30-
minute chase video, which the District Court already had ordered
to be redacted once, was ordered to be redacted further so that,
in the end, only an 8-minute excerpt of the video would be played
for the jury during trial. The District Court also instructed the
government not to elicit testimony regarding what happened in
redacted portions of the video from the law enforcement officer
who would be called as a witness to narrate the video. Finally,
the District Court gave a specific cautionary instruction to the
jury that it "should consider that there may be reasons for Mr.
West's actions that are fully consistent with being innocent of
the charges in the indictment."
West argues that the redacted version of the video, like
the video as a whole, is not probative of his guilt because the
record provides an insufficient basis for linking his flight from
law enforcement to his role in the bank robbery, which occurred 30
minutes before the chase began. West also argues that even if
there were a sufficient basis for linking his flight from the
police to his commission of the crime, the redacted version of the
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video was still unduly prejudicial, given its length and what it
depicted. We disagree.
Wallace, which the District Court relied on in finding
that the video was probative, itself relied on United States v.
Benedetti, 433 F.3d 111 (1st Cir. 2005). There, we explained that,
although "[f]light evidence is controversial and must be handled
with care," with an "adequate factual predicate, . . . evidence of
a criminal defendant's flight is generally thought to be probative
of his or her consciousness of guilt." Id. at 116. Thus, Benedetti
makes clear that "[a]s a precursor to admissibility, the government
must present sufficient extrinsic evidence of guilt to support an
inference that [the] defendant's flight was not merely an episode
of normal travel but, rather, the product of a guilty conscience
related to the crime alleged." Id. The aim is to ensure that "a
jury does not infer guilt based solely on a defendant's
meanderings." Id.
In so concluding, however, we explained that the
government must present only "enough extrinsic evidence to furnish
circumstantial badges of guilt." Id. at 117. We have also noted
that "[a] district court is afforded considerable leeway when
determining whether evidence of a defendant's flight is
accompanied by a sufficient factual predicate." Id. at 116. As
a result, we review "such decisions only for abuse of discretion."
Id.
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Here, the District Court reasonably found that the
government offered sufficient extrinsic evidence to support the
inference that West's flight, as depicted in the redacted video,
was probative of West's consciousness of guilt. This evidence
included the testimony of a cooperating witness, Joseph Richards,
who the government contended had been West's co-conspirator in the
bank robbery. Richards testified at trial that he had robbed the
TD Bank and that West had helped in carrying out the robbery by
driving a vehicle both to and from the scene of the crime. Richards
also testified that West was involved in the planning of the
robbery by looking for a bank that was accessible to a highway and
not so out in the open.
Moreover, Richards in his testimony specifically
identified the type of vehicle that West was driving in assisting
with the robbery, as well as the location where West allegedly
waited in the vehicle while the robbery occurred. And Richards
also in that testimony identified that vehicle as a blue minivan
that matched the minivan depicted in the video.
Richards' testimony regarding West's role as the get-
away driver is exactly the sort of extrinsic evidence that
satisfies Benedetti. His testimony provided a basis for concluding
that West was not engaged merely in "an episode of normal travel"
unconnected to the underlying offenses at issue. Id. His
testimony did so by linking West's role in driving the vehicle
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depicted in the video to the underlying robbery, thereby giving
rise to an inference that, in seeking to elude the police during
the chase, West was conscious of his guilt for having been involved
in the robbery. See United States v. Alcantara, 837 F.3d 102, 109
(1st Cir. 2016) (relying on coconspirators' testimony as extrinsic
evidence).
Richards' testimony suffices to distinguish this case
from the one that West relies on most heavily, United States v.
Doe, which is an unreported case from the District of Maine. 2011
WL 5983034 (D. Me. Nov. 29, 2011). In Doe, the District Court
found that the government failed to present sufficient evidence to
support an inference that the defendant’s flight was related to
the crime alleged, and the district court therefore excluded the
flight evidence. Id. at *2. But, even assuming that the evidence
in Doe did not suffice to render the flight evidence at issue in
that case probative, there was no extrinsic evidence in Doe
specifically linking the flight itself to the underlying crime as
there is here in consequence of Richards' testimony.
Of course, even when there is sufficient extrinsic
evidence to link the flight evidence to the defendant's
consciousness of guilt, the flight evidence's "admissibility is
not automatic." Benedetti, 433 F.3d at 116. Such evidence must
still pass the Rule 403 balancing test to ensure that, probative
though the flight evidence may be, its admission would not be
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unduly prejudicial. See Fed. R. Evid. 403. And West did argue
below that, wholly apart from the issue of whether extrinsic
evidence sufficed to link the evidence of West's flight to West's
involvement in the underlying crime, the flight video (even in its
redacted form) was still unduly prejudicial.
But, a district court is afforded wide "latitude in
determining whether the evidence passes the Rule 403 balancing
test," such that we review its ruling on such a matter only for
abuse of discretion. Benedetti, 433 F.3d at 117. Moreover,
cautionary instructions can further minimize the risk of unfair
prejudice. Daigle v. Me. Med. Ctr., Inc., 14 F.3d 684, 690 (1st
Cir. 1994) (holding that cautionary jury instruction minimized
possible prejudicial impact of documentary exhibits).
Here, the District Court found there to be no risk that
the probative value of the video would be substantially outweighed
by unfair prejudice to West only after the District Court had
carefully reviewed the video and required especially provocative
chunks of it to be removed in order to ensure that the video would
not provoke an "emotional response" from the jury. In addition,
the District Court instructed the government's witness, who
narrated the video at trial, not to reference the portions of the
video that had been ordered redacted. And, finally, the District
Court gave a specific cautionary instruction to the jury that it
"should consider that there may be reasons for Mr. West's actions
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that are fully consistent with being innocent of the charges in
the indictment."
Thus, while West contends that the video even in its
redacted form should have been excluded, we see no basis for
concluding that the District Court abused its discretion in ruling
as it did, given the District Court's findings regarding the
probative nature of the flight evidence and the steps that the
District Court took to mitigate the risk of unfair prejudice.
Accordingly, we reject West's first ground for challenging his
convictions.
III.
West also argues that the District Court abused its
discretion when it ruled that two statements that West made to
police in an interview following his arrest for his role in the TD
Bank robbery could be introduced into evidence only if the
government could introduce other statements that West made to the
police at that time. West contends that the District Court abused
its discretion in making this conditional offer for the following
reason: The statements that the government would be permitted to
introduce concerned a prior robbery-related conviction of West's
and thus would impermissibly prejudice the jury against him. But,
West appears to premise his challenge to the District Court's
conditional evidentiary ruling on his underlying contention that
the District Court erred in deeming the statements that West sought
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to introduce to be inadmissible hearsay. And, as that premise is
mistaken, his challenge necessarily fails.1
The two statements from West's interview with the police
following his arrest in connection with the TD Bank robbery that
West wished to introduce as admissible hearsay were (1) his
statement that the interviewing officer should review the security
footage from the motel where he had been staying the night before
the robbery, as that footage would prove he was at the motel during
the robbery; and (2) his statement to the police, after being told
that he had been identified by witnesses as one of the robbers, to
bring those witnesses to identify him as they would not be able to
do so. West argues that, contrary to the District Court's ruling,
each of these statements falls under the state-of-mind exception
to the rule against the admission of hearsay. Fed. R. Evid. 803(3)
(providing that out of court statements concerning "then-existing
mental, emotional, or physical condition" may be offered
regardless of whether the declarant is available as a witness).
But, the state-of-mind exception to the hearsay rule
does not apply to "a statement of memory or belief to prove the
1 In his briefing, West makes no argument that, even if the
statements he wished to introduce were in fact hearsay, he was
harmed in any way by the conditional offer made by the District
Court. Nor did West explain how, in that event, he could win when
asked to do so at oral argument. Therefore, we have no reason to
address West's contention that the prior bad act evidence was not
admissible under Federal Rule of Evidence 404(b).
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fact remembered or believed." Id. Indeed, the Advisory Committee
Notes explain that this exception to the state-of-mind exception
"is necessary to avoid the virtual destruction of the hearsay rule
which would otherwise result from allowing state of mind, provable
by a hearsay statement, to serve as the basis for an inference of
the happening of the event which produced the state of mind." Fed.
R. Evid. 803(3) advisory committee's note to 1972 proposed rules.
Thus, the state-of-mind exception does not encompass the
statements in question. As the government rightly points out,
while West contends that he sought to introduce each of these
statements solely to show that he had an innocent state of mind at
the time that he made them, the inference that West had an innocent
state of mind at that time could be drawn by the jury only if the
jury found that the statements were true. See United States v.
Cianci, 378 F.3d 71, 106 (1st Cir. 2004) (finding that the state-
of-mind exception did not apply where the evidence offered was to
be used to prove the truth of the assertion). As one of our sister
circuits explained in dealing with an analogous case,
[w]hat would be relevant is that [defendant]
was in truth in the wrong place at the wrong
time -- not that [second defendant] thought
so. Hence the statement is irrelevant unless
it was true, in which case it would be hearsay,
and inadmissible under any of the exceptions
in Fed. R. Evid. 803 and 804. Similarly, the
declarant's state of mind and 'pattern of
verbal behavior' were irrelevant to any issue
in the case and cannot be invoked like a mantra
to circumvent a hearsay objection.
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United States v. Harwood, 998 F.2d 91, 97-98 (2d Cir. 1993).
In consequence, West fails to establish the premise on
which his challenge to the District Court's conditional
evidentiary ruling rests -- namely, that the statements that West
wished to introduce were themselves admissible. We therefore
reject his contention that the District Court abused its
discretion.
IV.
The judgment of the District Court is affirmed.
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