United States v. Bakari Deontre Brown ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16451 ELEVENTH CIRCUIT
SEPTEMBER 16, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-20314-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BAKARI DEONTRE BROWN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 16, 2009)
Before TJOFLAT, WILSON and FAY, Circuit Judges.
PER CURIAM:
Bakari Deontre Brown appeals his conviction for possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Brown argues
that the district court erred by admitting into evidence two judgments, each
reflecting a prior conviction for possession of a firearm, because this evidence was
more prejudicial than probative, violating Federal Rule of Evidence 404(b). He
explains that the only issue in the case was whether he was in fact the person who
robbed the victim of her purse at gunpoint, but that the government did not, as it
was required, present evidence to show that Brown “acted in conformity with the
circumstances of the prior offenses, or that the circumstances of the offense were
the ‘handiwork’ of Mr. Brown.” Instead, Brown argues, the government used the
evidence to show that he had “the propensity to possess firearms,” a purpose that
violates Rule 404(b). The government concedes that the court abused its discretion
by admitting the evidence of the two prior firearm possession crimes into evidence.
Moreover, the government explains that, during its preparation for this appeal, it
discovered that the judgments entered into evidence were inadvertently not
redacted and thus the judgments contained documentation of Brown’s other crimes
as well. It maintains, however, contrary to Brown’s position, that the errors were
harmless because the evidence of Brown’s guilt was overwhelming.
We review the district court’s admission of evidence under Rule 404(b) for
abuse of discretion. United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir.
2
2005). Rule 404(b) provides that “[e]vidence 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, [or] identity. . .
.” F ED. R. E VID. 404(b). Rule 403 provides that “[a]lthough relevant, evidence
may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” F ED. R. E VID. 403. When Rule 404(b) evidence is offered
to establish identity, this standard is “particularly stringent” and “the likeness of
the offenses is the crucial consideration.” United States v. Lail, 846 F.2d 1299,
1301 (11th Cir. 1988). “The physical similarity must be such that it marks the
offenses as the handiwork of the accused, . . . demonstrat[ing] a modus operandi.”
Id.
Reversal is not required when a district court’s admission of Rule 404(b)
evidence was erroneous, as long as the error was harmless. Id. at 1301-02. “We
often have concluded that an error in admitting evidence of a prior conviction was
harmless where there is overwhelming evidence of guilt.” United States v.
Harriston, 329 F.3d 779, 789 (11th Cir. 2003) (per curiam). Harmless error is
3
error that “had no substantial influence on the outcome” of the case because
“sufficient evidence uninfected by error supports the verdict.” Id. (citations
omitted). Courts weigh the record as a whole when determining whether an error
had a substantial influence on the outcome of the proceedings. See United States v.
Montalvo-Murillo, 495 U.S. 711, 722 (1990).
Regarding the jury’s exposure to Brown’s crimes beyond those that the court
intended to admit into evidence before the jury, prejudice is presumed when the
jury has extrinsic evidence in the jury room. United States v. Pessefall, 27 F.3d
511, 515 (11th Cir. 1994) (concerning the jury’s inadvertent exposure to the case
agent’s notes). This presumption, however, is not conclusive. United States v.
Martinez, 14 F.3d 543, 550 (11th Cir. 1994). The government can rebut this
presumption with evidence of “the nature of the extrinsic information, the manner
in which the information reached the jury, and the strength of the government’s
case.” Pessefall, 27 F.3d at 515. (citation omitted).1
“The cumulative error doctrine provides that an aggregation of
non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless
1
This rebuttable presumption of prejudice derives from Remmer v. United States, 347
U.S. 227, 229 (1954). Two of this Court’s decisions have stated that prejudice is not presumed.
See United States v. Rowe, 906 F.2d 654, 656-57 (11th Cir. 1990); United States v. De La Vega,
913 F.2d 861, 870 (11th Cir. 1990). This conflict was recognized in United States v. Martinez,
14 F.3d 543, 550 n.3 (11th Cir. 1994), but we declined to resolve the conflict because it had no
bearing on the outcome. As in Martinez, the presumption is not dispositive because, even
granting Brown the presumption, the government has sufficiently rebutted the presumption.
4
errors) can yield a denial of the constitutional right to a fair trial, which calls for
reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (internal
quotations omitted). “The harmlessness of cumulative error is determined by
conducting the same inquiry as for individual error—courts look to see whether the
defendant's substantial rights were affected.” Id. (citation omitted).
Here, the district court erroneously admitted evidence relating to Brown’s
two prior firearm convictions pursuant to Rule 404(b). The district court believed
that the previous convictions were relevant because they also dealt with possession
of a firearm. However, no accompanying evidence was submitted so that the jury
could compare the similarities between the prior convictions and the charge
offense and decide whether the present crime was Brown’s handiwork. See Lail,
846 F.2d at 1301. Because identity was the only contested issue at trial, evidence
relating to Brown’s two firearm convictions was improperly admitted in the
absence of a showing of a physical likeness between those offenses and the
charged offense.
Moreover, not only was evidence of Brown’s prior firearm convictions
improperly admitted, but the judgments submitted to the jury were not redacted
and thus also documented Brown’s other previous crimes. Thus, Brown was
prejudiced by the exposure of the jury to this evidence, and we must determine
5
whether that exposure was harmless by addressing the nature of the extrinsic
evidence, the manner in which the information reached the jury, and the strength of
the government’s case. See Pessefall, 27 F.3d at 515.
The nature of the extrinsic evidence was evidence of Brown’s prior crimes,
as well as of his aliases and habitual felony offender status. As to the manner in
which the information reached the jury, the extrinsic evidence was included in the
same document as evidence that had been ruled admissible, and on which the court
gave jury instructions. These jury instructions, rather than mitigating prejudice,
appear to have compounded the initial errors. The court’s instructions were
confusing and unclear. The instructions asked the jury to not consider the evidence
in determining whether Brown committed the charge in the indictment, yet the
court also stated that the evidence may be considered to determine if the defendant
was the one who perpetrated the crime charged in the indictment. Also, while the
court thought it was giving instructions to consider only the firearm offenses, it
was inadvertently instructing the jury to consider evidence that had not been
validly entered into evidence, because Brown’s previous crimes, beyond the two
firearms offenses, were included in the judgments.
While these errors are prejudicial and cumulative, we must still determine
whether the third factor in the prejudice analysis, the strength of the government’s
6
evidence, can overcome the harm. See id. To convict a defendant of possession of
a firearm by a convicted felon, the government must prove beyond a reasonable
doubt that: (1) the defendant was convicted of a felony, (2) the defendant
knowingly possessed a firearm, and (3) the firearm was in or affecting interstate
commerce. 18 U.S.C. § 922(g)(1); United States v. Deleveaux, 205 F.3d 1292,
1296-97 (11th Cir. 2000).
At trial, Brown and the government stipulated that Brown had previously
been convicted of a felony, thereby satisfying the first element of 18 U.S.C. §
924(b). They also stipulated that the firearm used in the offense moved through
interstate commerce, which satisfied the third element of § 924(b). Thus, the only
element for trial was whether Brown knowingly possessed the firearm. See 18
U.S.C. § 924(b). In this regard, the only issue was whether Brown was the suspect
who had robbed the victim, Margarita Flores, with a firearm.
At trial, Flores testified that she identified Brown on the day of the crime as
the individual who had robbed her at gunpoint. A police officer, Officer
Rodriguez, testified that on the day in question he (1) heard a woman screaming,
(2) saw a man running with a purse and gun, and (3) encountered Flores, who
stated, “[t]hat man just robbed me” and was pointed in the direction where
Rodriguez had just seen the man. Rodriguez testified that he drove towards the
7
suspect, saw him get into a white Crown Victoria, and followed it as it sped away.
Rodriguez also testified that, after the Crown Victoria collided with a pick up
truck, he saw Brown jump out of the vehicle and start running away. Rodriguez
testified that he identified Brown at the scene as the suspect in the robbery.
Rodriguez further stated that he looked into the vehicle that Brown had been
driving, and observed a firearm and a purse. Rodriguez learned that Brown’s
cousin owned the vehicle; however, evidence later presented at trial revealed that
Brown’s cousin was “several pounds heavier” than Brown, and the two men were
not physically similar. Thus, it is unlikely that Flores confused Brown with his
cousin. Rodriguez also testified that he found a shoe in a fence while searching for
Brown and Brown was missing that shoe when he was found. In court, Rodriguez
positively identified Brown as the suspect he had seen with a gun on the day of the
robbery. Finally, another police officer, Officer Ferrin, testified that his canine
partner had alerted twice during the day on which the robbery took place – once
when he found the shoe in the fence, and again when he discovered that Brown
was hiding in a garbage can.
To rebut this evidence, Brown only presented testimony from a detective
that the fingerprints taken from the scene of the accident did not match his, but
matched other individuals instead. However, the detective also testified that the
8
lab report concerning the fingerprints was not designed to reflect partial or
unusable fingerprints, and thus, the report would not have been able to
conclusively establish whether someone was or was not present in the vehicle.
On appeal, Brown argues that the evidence was not overwhelming because
(1) Flores was unable to identify him in the courtroom as the man who robbed her,
(2) he was shirtless when found by police, contrary to Flores’s testimony that the
robber was wearing a white T-shirt during the robbery, and (3) he could have been
fleeing from police for other reasons, as evidenced by his criminal record.
However, these reasons are not sufficient to conclude that the evidence was not
overwhelming. Flores testified that she was able to identify Brown at the scene as
the man who robbed her; moreover, as to her inability to identify him in court as
the robber, she explained that it had been a year and eight months and that she
didn’t “remember very well.” As to his being shirtless when he was found by
police, and that he may have had other reasons for fleeing from the police, these do
overcome the testimonial evidence that supports the strength of the government’s
case, because it is plausible that he could have taken the T-shirt off as he was
fleeing and also plausible that he was fleeing to escape capture for robbing Flores.
In conclusion, the district court abused its discretion by admitting the
evidence of Brown’s prior crimes of firearm possession. Moreover, the judgments
9
included evidence about Brown’s other crimes that had not been admitted into
evidence. Nevertheless, based on the overwhelming direct and circumstantial
evidence of Brown’s guilt, we conclude that any error was harmless.
Upon review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.
10