United States v. Richard Boyle ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 20-1286
_________________
UNITED STATES
v.
RICHARD BOYLE,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Crim. No. 2-17-cr-00197-1
District Judge: Honorable Gene E. K. Pratter
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on January 26, 2021
Before: JORDAN, MATEY, Circuit Judges, and HORAN, * District Judge
(Opinion filed: March 9, 2021)
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OPINION **
_______________
*
Honorable Marilyn J. Horan, District Judge, United States District Court for the
Western District of Pennsylvania, sitting by designation.
**
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
MATEY, Circuit Judge.
Richard Boyle is a serial bank robber. From 2012 to 2016, he committed eleven
bank robberies, stealing almost half a million dollars. He challenges his conviction after
trial, alleging errors in the admission of evidence and the conduct of the prosecutors.
Finding no merit to these claims, we will affirm.
I. BACKGROUND
Needing funds to pay the bills, Boyle began moonlighting as a bank robber.
Meticulous in his planning and routine in his execution, he preferred to stage the robberies
at the end of the week, wearing an outer layer of clothing, hat, glasses, and a mask. Gloves
concealed his fingerprints, and he sometimes used bleach to remove traces of DNA. As a
result, no physical evidence linked Boyle to the robberies.
But plenty of circumstantial evidence did. Cell site data showed Boyle’s phone idle
during all but one of the robberies. Before one heist, a disposable phone was used to place
a diversionary call to law enforcement about a bomb threat. Law enforcement traced that
phone to a library, where video surveillance and witness testimony placed Boyle at the time
of the call. Boyle’s finances followed the robberies, recovering from less than $400 in the
bank and over $20,000 in debt to spending large sums, as the robberies racked up. After
many—sometimes even the same day—Boyle would make large deposits of cash into his
personal and business accounts. He explained his fortune on timely gambling wins and a
host of odd jobs, but he named only a handful of customers, who collectively paid him
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around $1,200, and casino records show Boyd was a low-stakes gambler who lost more
than he won.
A grand jury charged Boyle with 11 counts of bank robbery, in violation of 18
U.S.C. § 2133(a); 10 counts of using or carrying a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c); and 10 counts of money laundering, in violation of 18
U.S.C. § 1956(a)(1)(B)(i). Before trial, the Government moved to admit evidence, pursuant
to Federal Rule of Evidence 404(b), about Boyle’s 2008 conviction for multiple bank
robberies, and financial information he provided to his state parole officer. The District
Court granted the motion, allowing Boyle to renew his objection at trial. Boyle also filed a
motion for a hearing under Franks v. Delaware, arguing that the affidavit in support of a
search warrant executed at his home contained false statements or omissions. The District
Court denied that motion, and a second raising the same argument. At trial, and again post-
trial, the District Court denied Boyle’s motions for a judgment of acquittal.
The jury returned guilty verdicts on all counts. The District Court sentenced Boyle
to a term of imprisonment of 852 months, a three-year term of supervised release, and
restitution of $495,686. Boyle timely appealed and we will affirm. 1
II. DISCUSSION
A. Evidence about Boyle’s Prior Robberies
Boyle first argues that the Government introduced prejudicial evidence about his
prior criminal acts. Federal Rule of Evidence 404(b) provides that “[e]vidence of any other
1
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231 and we have
jurisdiction under 28 U.S.C. § 1291.
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crime, wrong, or act is not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the character.” But such
evidence may be admissible for other purposes, including “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R.
Evid. 404(b)(2). We review the District Court’s decision to admit evidence under Rule
404(b) for an abuse of discretion, which “may be reversed only when . . . clearly contrary
to reason and not justified by the evidence.” United States v. Balter, 91 F.3d 427, 437 (3d
Cir. 1996) (internal quotation marks and citation omitted). To admit such evidence, the
Government needed to show a relevant purpose unrelated to propensity, with probative
value not substantially outweighed by the potential for unfair prejudice to the defendant.
See Huddleston v. United States, 485 U.S. 681, 691 (1988); Fed. R. Evid. 403. The district
court enjoys “considerable leeway” to balance prejudice against probative value. United
States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992).
Here, the Government used evidence of Boyle’s earlier bank robberies for proper
purposes, such as motive, preparation, and identity. And the District Court’s multiple
limiting instructions—whose language Boyle’s counsel never objected to—cured any
prejudicial effect. In his 2008 sentencing, Boyle admitted that he committed the robberies
because he needed money to make car payments, pay tuition, and buy photography
equipment. (App. at 63–64.) So too here. (See App. at 940, (telling his parole officer that
he did not have a job), 832 (paying back rent with $9,000 in money orders), 1679 (buying
a car with cash), 1550–51 (paying for tuition in cash), 1679–81 (buying thousands of
dollars of camera equipment).) As the District Court correctly held, Rule 404(b)(2)
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expressly permits admission of other-acts evidence for, among other things, “proving
motive.” Fed. R. Evid. 404(b)(2).
Boyle, as the Government explained, used many of the same techniques in both sets
of robberies. He would often wear two sets of clothes, including a hat, jacket, and tie. He
always covered his face and left his mobile phone at home. He always targeted banks within
twenty miles of his home. “[P]reparation” and “identity” are both proper nonpropensity
purposes under Rule 404(b)(2), and both properly identified by the District Court in its
decision. Boyle complains that the evidence was more prejudicial than probative, but the
District Court minimized that risk with repeated limiting instructions. And “we presume
that . . . jur[ies] follow[] the limiting instruction that the district court gave and considered
evidence . . . only for the limited purposes offered.” United States v. Cruz, 326 F.3d 392,
397 (3d Cir. 2003); see also Richardson v. Marsh, 481 U.S. 200, 211 (1987). Boyle’s
counsel declined to submit alternative instructions or supplement the ones given, and he
raised no concerns. And, as the District Court noted, both parties correctly commented on
the limited purpose of the evidence in their closing arguments. On balance, admitting this
evidence was not error.
B. The Motion to Dismiss the Indictment
Boyle argues Police Detective Jeffrey McGee fabricated evidence and lied to the
grand jury, violating his due process rights. But no such prosecutorial misconduct occurred,
and even if it did, it was rendered harmless under United States v. Mechanik by his
subsequent conviction by a petit jury.
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“We review a district court’s decision regarding a motion to dismiss an indictment
because of prosecutorial misconduct for abuse of discretion.” United States v. Bryant, 655
F.3d 232, 238 (3d Cir. 2011). “[A]s a general matter, a district court may not dismiss an
indictment for errors in grand jury proceedings unless such errors prejudiced the
defendants.” Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988). To make out
a claim, the defendant must show that “the structural protections of the grand jury [were]
so compromised as to render the proceedings fundamentally unfair.” Id. at 257.
The bar is high. As we have explained, “the societal interest in avoiding the expense
of a second trial far outweighs the appellants’ interest in having a new trial based solely on
prosecutorial misconduct before the grand jury.” United States v. Console, 13 F.3d 641,
672 (3d Cir. 1993). In most cases, errors before a grand jury diminish in significance after
trial, as “the petit jury’s subsequent guilty verdict means not only that there was probable
cause to believe that the defendants were guilty as charged, but also that they are in fact
guilty as charged beyond a reasonable doubt.” Id. at 672 (quoting United States v.
Mechanik, 475 U.S. 66, 70 (1986)).
Boyle’s claims do not clear that hurdle. He argues that the Government knowingly
presented false testimony in the grand jury, pointing to Detective McGee’s testimony that
Boyle bought and activated the TracFone. That testimony mirrors the phone records
introduced at trial. The library’s video also showed Boyle entering the library at the
relevant time and inspecting a computer terminal. A witness testified that Boyle asked him
how to access the computers. And video evidence showed Boyle approach the information
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desk, ask the clerk a question, and then walk in the direction of the computers. The
TracFone was activated from the terminal soon after.
Boyle also contends that Detective McGee lied to the grand jury about statements
made by one of the witnesses, Kyung Lee. (Opening Br. at 25–29.) Detective McGee did
tell the grand jury that Lee reported that the bank robber was wearing an “old man” mask
at the PNC robbery, when in fact she did not so testify. But it is unclear why Detective
McGee’s misstatement matters. The grand jury reviewed photos showing that the person
who robbed PNC was wearing a mask. Lee never singled out Boyle as the robber. And
McGee did not claim that she did.
Boyle next argues McGee lied to the grand jury when he testified that Boyle left his
cell phone at home during the 2008 robberies. Not so. Rather, McGee testified that one of
the police officers went to Boyle’s home in 2008 following a robbery and, when his
children called his phone, it could be heard ringing upstairs. Boyle’s 2008 arrest report
corroborated those events.
Finally, Boyle complains that references to his prior bank robbery convictions
rendered the grand jury process unfair. But the Federal Rules of Evidence do not apply to
grand juries. See Fed. R. Evid. 1101(d) (excluding grand jury proceedings from the scope
of the rules, except for the rules on privilege); Costello v. United States, 350 U.S. 359, 363
(1956) (recognizing that grand juries may act solely on testimony that would be
inadmissible at trial, such as hearsay evidence).
For those reasons, Boyle has not shown that there was misconduct before the grand
jury, let along error rising to the level needed to dismiss the case. United States v. Soberon,
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929 F.2d 935, 940 (3d Cir. 1991) (allegedly perjured testimony to the grand jury does not
fall into the narrow category of cases warranting dismissal).
C. The District Court Properly Denied a Franks Hearing
The right to a Franks hearing is not absolute. Instead, the defendant must (1) make
a “substantial preliminary showing” that the affiant knowingly or recklessly included a
false statement in or omitted facts from the affidavit, and (2) show that the false statement
or omitted facts are “material to the finding of probable cause.” United States v. Yusuf, 461
F.3d 374, 383–84 (3d Cir. 2006). Boyle contends that his second motion cited “newly
discovered evidence,” and the District Court erred by failing to conduct an evidentiary
hearing on this basis. He is mistaken.
Detective McGee supported his application for a search warrant for Boyle’s home
with an affidavit. The affidavit included information about the TracFone used at the library
and the identification of Boyle by a confidential informant who then positively identified
photos of Boyle at the library on the day the phone was activated. Boyle points to unsworn
summaries of interviews conducted by a defense investigator challenging phone activation
records, and someone who Boyle claims is the Government’s confidential source and
whose husband denies she ever spoke with Detective McGee. (App. at 215–16.) He also
claims that no evidence shows that Boyle used the computer at the library. The record
refutes these claims. The Government received, and presented at trial, an email from
TracFone with an IP address associated with the library. The unsworn testimony of the
alleged informant’s husband does not cause us to discount Detective McGee’s sworn
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testimony that he interviewed the informant. And two witnesses present at the library—
one of whom testified at trial—stated that Boyle had asked them how to access a computer.
Boyle has not made a “substantial preliminary showing” that Detective McGee
knowingly or recklessly lied in his search warrant affidavit. The District Court properly
rejected his second motion for a Franks hearing.
D. Substantial Evidence Supported Boyle’s Conviction
Finally, Boyle argues that the evidence at trial was insufficient for the jury to support
his convictions. (Opening Br. at 56–61.) We do not agree. When reviewing the sufficiency
of the evidence, we ask whether “after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)
(emphasis in original and citation omitted). Our review is “highly deferential”; the jury’s
verdict “must be upheld as long as it does not fall below the threshold of bare rationality.”
United States v. Caraballo-Rodriguez, 726 F.3d 418, 430, 431 (3d Cir. 2013) (en banc)
(internal quotation marks omitted).
Boyle offers three claims of insufficiency: (1) The Government never presented
direct evidence that he was the actual bank robber; (2) the Government never showed that
the banks were FDIC-insured; and (3) the Government never proved the knowledge
element of the money laundering offenses. Each lacks merit.
First, while the Government never presented physical evidence or eyewitness
testimony connecting him to the robberies, the circumstantial evidence was more than
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adequate. A rational juror could have concluded as all twelve did, that this evidence was
sufficient.
Second, an employee of each bank testified that the bank was FDIC-insured, and
the Government introduced self-authenticating FDIC certificates of insurance. (App. at
2213; Supp. App. at 42–82.) That is more than sufficient. See United States v. Barel, 939
F.2d 26, 38 (3d Cir. 1991).
Finally, expert testimony presented at trial showed that Boyle knowingly laundered
money through Square. Boyle, the expert explained, used his credit cards to process
$17,000 through Square to his photography business, Sky Eye View. Boyle paid a fee on
each transaction, and then received the money back from Square, less the fees, in the
amount of $16,532.50. In other words, Boyle paid roughly $470 to put $17,000 in his
business bank account, rather than simply transfer it there via wire for nothing. Boyle
argued that this was merely evidence that he was “advanc[ing] his company funds at a
lower rate than he would have incurred by using his credit cards for cash advances.”
(Opening Br. at 61.) That is one possible inference. Another is that he was laundering
money made by robbing banks through a fake aerial photography business. And that is
apparently the one the jury made.
III. CONCLUSION
For these reasons, we will affirm the District Court’s conviction.
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