United States v. Juwan Shaw ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-1289
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UNITED STATES OF AMERICA
v.
JUWAN SHAW,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 08-cr-00476)
District Judge: Hon. Michael M. Baylson
Submitted Pursuant to Third Circuit LAR 34.1(a),
March 8, 2012
Before: McKEE, Chief Judge, SCIRICA
and AMBRO, Circuit Judges
(Opinion Filed: April 26, 2012)
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OPINION OF THE COURT
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McKEE, Chief Judge.
Juwan Shaw appeals his conviction for multiple robberies that were joined for
trial. He argues that the robberies were improperly joined in violation of Federal Rule of
Criminal Procedure 8(a). Alternatively, he makes the related claim that the District Court
erred in denying his motion for a severance. For the reasons that follow, we will affirm. 1
I.
We review de novo a claim of improper joinder of counts under Rule 8(a). United
States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003). “If we determine that counts were
improperly joined, we must undertake a harmless error analysis to see if prejudice
resulted.” Id. (citing United States v. McGill, 964 F.2d 222, 241 (3d Cir. 1992)). Relief
will only be granted in the absence of actual prejudice. United States v. Gorecki, 813
F.2d 40, 42 (3d Cir. 1987) (citing United States v. Lane, 474 U.S. 438 (1986)).
Rule 8(a) provides:
The indictment or information may charge a defendant in separate
counts with 2 or more offenses if the offenses charged . . . are of the
same or similar character, or are based on the same act or
transaction, or are connected with or constitute parts of a common
scheme or plan.
Fed. R. Crim. P. 8(a).
Shaw argues that the District Court erred in concluding that the robberies were of
a similar character because they occurred at different times, involved varying degrees of
force, and involved different victims. He notes that the third robbery was not of an
individual but of a restaurant and was thus was not of similar character to the other two.
Shaw’s argument is unpersuasive. The robberies occurred over a five-month period in
the same neighborhood near Shaw’s residence, and all three robberies involved one
1
The District Court had jurisdiction pursuant to 18 U.S.C § 3231, and we have appellate
jurisdiction under 28 U.S.C. § 1291.
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robber who demanded money from his victim while holding the victim at gunpoint with a
small revolver. 2 We agree with the District Court that the differences advanced by Shaw
were insufficient to negate the similarity among the three robberies for purposes of Rule
8(a). Moreover, Shaw has failed to prove actual prejudice resulting from the District
Court’s joinder of the charged offenses. Thus, we conclude that joinder was proper under
Rule 8(a).
II. Severance
We review a district court’s denial of a motion to sever under Rule 14 for abuse of
discretion. Gorecki, 813 F.2d at 42. Rule 14 allows the district court to sever counts if
joinder “appears to prejudice a defendant or the government.” Fed. R. Crim. P. 14(a).
However, “even if the district court abused its discretion in denying the severance
motion, the defendant must pinpoint ‘clear and substantial prejudice’ resulting in an
unfair trial.” United States v. McGlory, 968 F.2d 309, 340 (3d Cir. 1992) (quoting United
States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991)). “It is not enough to show that
severance would have increased the defendant’s chances of acquittal.” Id.Shaw contends that he wished to testify with regard to the Lucky’s Pizza robbery;
however, joinder of the offenses caused him to surrender his right to testify in his own
2
Although the Lucky’s Pizza robbery ultimately involved two victims, only Mauro
Garcia was at the front of the restaurant when Shaw initiated the robbery. The restaurant
owner, Harisios Pavlou, was in the back and only came to the front of the restaurant after
the initiation of the robbery. Thus, the robber in each case targeted a lone victim.
Although it could be argued that this is characteristic of most robberies and not
necessarily suggestive of common character, there are clearly enough similarities among
all of the robberies Shaw was charged with to support the District Court’s exercise of
discretion here.
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defense because he feared that testifying with regard to only one robbery would lead the
jury to speculate on the reasons for his failure to testify regarding the other two robberies
and thereby infer guilt from his silence. Although we do not deny that Shaw may have
faced that dilemma, it is not enough to establish error.
Severance is required “only where the defendant makes a convincing showing that
he has both important testimony to give concerning one count and strong need to refrain
from testifying on the other.” United States v. Reicherter, 647 F.2d 397, 401 (3d Cir.
1981) (quoting Baker v. United States, 401 F.2d 958, 977 (D.C. Cir. 1968)) (internal
quotation marks omitted). To make such a showing, defendant must “present enough
information regarding the nature of the testimony he wishes to give on one count and his
reasons for not wishing to testify on the other to satisfy the court that the claim of
prejudice is genuine.” Id. (quoting Baker, 401 F.2d at 977) (internal quotation marks
omitted). Here, the District Court correctly concluded that Shaw had failed to make the
requisite showing.
Shaw also argues that the jury may have cumulated the evidence relating to the
three robberies rather than weighing the evidence for each robbery separately. “Of
primary concern in considering a motion for severance is whether the jury can reasonably
be expected to compartmentalize the evidence, as it relates to each count.” Id. (quoting
United States v. DeLarosa, 450 F.2d 1057, 1065 (3d Cir. 1971)) (internal quotation marks
omitted). Here, the District Court instructed the jury to consider each offense separately
and warned the jury that “the number of offenses charged is not evidence of guilt, and
this should not influence your decision in any way.” It is well-settled that “juries are
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presumed to follow their instructions.” Zafiro v. United States, 506 U.S. 534, 540 (1993)
(quoting Richardson v. Marsh, 481 U.S. 200, 211 (1987)). “[T]hus we regard the
instructions as persuasive evidence that refusals to sever did not prejudice” the defendant.
United States v. Walker, 657 F.3d 160, 171 (3d Cir. 2011) (quoting United States v. Lore,
430 F.3d 190, 206 (3d Cir. 2005)). Moreover, the fact that the jury convicted Shaw of the
robberies of the TastyKake deliveryman and of Lucky’s Pizza, but acquitted him of the
robbery of the Domino’s deliveryman, strongly undermines Shaw’s claim that the jury
may have lumped all the evidence together rather than considering the evidence of each
robbery separately.
Finally, Shaw argues that he was prejudiced because joinder encouraged the jury
to infer a criminal disposition on his part and made the jury hostile toward him. As
explained previously, the District Court warned the jury not to infer guilt from the
number of offenses charged, and we presume that the jury followed the court’s
instruction. Shaw’s contention that joinder of offenses made the jury hostile is sheer
speculation. That argument could be leveled against every instance of joinder.
Moreover, as the District Court noted, the three robberies were not so dissimilar in nature
that one was more likely to arouse hostility than another. Thus, we conclude that Shaw
has failed to make the requisite showing of actual prejudice to require severance under
Rule 14.
III.
For the reasons stated above, we will affirm Shaw’s conviction and the District
Court’s denial of Shaw’s motion to sever.
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