United States v. Isom , 138 F. App'x 574 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4960
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BENNIE LYNN ISOM,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-03-241; CR-03-242)
Argued: February 4, 2005 Decided: July 12, 2005
Before WILKINSON and WILLIAMS, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert Lynn McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT,
L.L.P., Greensboro, North Carolina, for Appellant. Lisa Blue
Boggs, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON
BRIEF: J. Marshall Shelton, IVEY, MCCLELLAN, GATTON & TALCOTT,
L.L.P., Greensboro, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Bennie Lynn Isom was indicted in two separate indictments for
bank robbery, one for the April 18, 2002, robbery of the Fidelity
Bank (Fidelity) in Greensboro, North Carolina, and the second for
the April 29, 2002, robbery of the Central Carolina Bank and Trust
Company (CCB) located in Asheboro, North Carolina. Each of the
indictments charged Isom with bank robbery, in violation of 18
U.S.C. § 2113(a)(West 2000), robbery accomplished by means of a
handgun, in violation of 18 U.S.C. § 2113(d)(West 2000) and
brandishing a firearm, in violation of 18 U.S.C. § 924(c)(1)(a)(ii)
(West 2000).
On August 11, 2003, the Government moved to join the two
indictments for trial. Isom subsequently filed a Motion for Relief
from Prejudicial Joinder, a Motion to Suppress Out-of-Court
Identification, a Request for a Physical Line-up, and a Motion for
Further Discovery and Inspection.
After a hearing on the pending motions, the trial court
granted in part and denied in part Isom’s Motion to Suppress Out-
of-Court Identification. The trial court also denied Isom’s Motion
for Relief from Prejudicial Joinder and ordered that the two cases
would be joined for trial. At the end of the three day trial, the
jury found Isom guilty of all counts.
For the reasons explained below, we hold that joinder was
proper under Fed. R. Crim. P. 8(a) and that the district court did
3
not abuse its discretion in denying Isom’s motion to sever under
Fed. R. Crim. P. 14(a). We further hold that the photographic
line-up at issue was not impermissibly suggestive. We also
conclude that the district court did not commit any reversible
error in its management of the witness testimony during the trial
of this case and that the trial court properly admitted Isom’s
letter written to his alibi witness. Accordingly, we find that
Isom’s challenges to his conviction are without merit, and, thus,
affirm his conviction.
I. Factual Background
At approximately 2:56 p.m., on April 18, 2002, a black male
entered Fidelity alone. Fidelity is a federally insured bank
located on Farmington Road in Greensboro, North Carolina. (J.A. at
109-11, 216, 249-50, 708-14.) The individual was described as
wearing a dark shirt, sunglasses, a black baseball cap, and a white
sweatband or clothing around his neck. (J.A. at 211, 248; Supp.
J.A. at 1-2.) In addition, his facial skin was described as being
“a little rough on the sides.” (J.A. at 222.)
Ms. Owanna Waclawek, a teller with Fidelity, offered to assist
the individual. He requested change for a ten and twenty dollar
bill. After Ms. Waclawek made change, the individual requested to
cash a money order. (J.A. at 211.) Because the individual did not
have an account with Fidelity, Ms. Waclawek advised him that he
4
could cash his money order at the post office. (J.A. at 209-11,
244.) It was at this point that Mrs. Hilda Chadwick, a co-teller,
began giving the individual directions to the post office. (J.A. at
244.)
The individual then brandished a gun and demanded money and an
ATM bag. (J.A. at 212-13, 227-28, 244-46.) Ms. Waclawek and Mrs.
Chadwick complied with the individual’s demands. (J.A. at 213-14,
242, 246.) The individual threatened to shoot the tellers if they
continued to look at him. (J.A. at 213, 246.) The individual then
ordered the tellers to walk to the back. He then fled, taking
$12,674. (J.A. at 232, 246-47.)
At approximately 1:06 p.m., on April 29, 2002, two black males
entered the CCB. The CCB is a federally insured bank located on
Dixie Drive in Asheboro, North Carolina. (J.A. at 814-826.) The
first individual asked Ms. Cindy Ellison, the teller, to make
change for both a twenty and a ten dollar bill. He repeated his
request three times after looking over at the second individual.
(J.A. at 290, 305; Supp. J.A. at 17-18.) Ms. Ellison later
identified the second individual as Benny Isom (J.A. at 301.) Ms.
Ellison described him as a tall African-American male with a
baseball cap worn backwards. (J.A. at 298, 296.) One teller, Ms.
Karen Goley, described him as wearing a white turtleneck while
another, Mrs. Emily Dalton, described him as wearing a thick
wristband around his neck. (J.A. at 354, 373.)
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The second individual pulled out his gun first, followed by
the male requesting change. (J.A. at 294, 305.) The male
requesting change demanded money from Ms. Ellison. The second
individual walked behind the teller line and demanded that all
drawers be opened. (J.A. at 295-96.) The individuals took money
from both Ms. Ellison and Mrs. Dalton’s drawers. (J.A. at 322,
397.) The second individual ordered Ms. Ellison, along with the
two other bank employees, to lie on the floor. (J.A. at 296-97.)
The individuals left, taking $8,304 from Mrs. Dalton’s drawer and
$27,688 from Ms. Ellison’s drawer.
The individuals fled to the Laser Car Wash, located in the
same strip mall as the bank, and got into a black BMW parked at the
car wash. (J.A. at 410, 415.) The customer witness, Ms. Angela
Nixon, stated that the men fled from the bank to the car wash at
approximately 1:15 p.m. She also indicated that she saw the men
changing shirts. (J.A. at 410, 415.) Ms. Nixon told police that
the first letter of the license plate on the BMW was a “P.” (J.A.
at 410, 428.) The owner of the car wash, Mr. James Woods,
acknowledged seeing the black BMW parked in the lot before his
lunch break and noted that it was gone by the time he returned from
lunch. (J.A. at 408.)
On June 28, 2002, Detective Jay Landers of the Greensboro
Police Department met with Benny Isom. Isom identified himself as
Darryl Young and produced a driver’s license, issued on April 2,
6
2002, with a Charlotte address, and in the name of Darryl Young.
(J.A. at 506.) The actual Darryl Young testified that he met Isom
while walking in Charlotte.
At trial, Young stated, “[Isom] asked me did I have an ID, and
he asked me can I give him a hotel - - get a hotel room for him. .
. . [a]t first I was hesitant, then after he promised me some
money, I did it.” (J.A. at 489.) Young also testified that, after
Isom gave Young a ride to Wal-Mart, they went to Young’s residence.
One to two days following Isom’s visit to his residence, Young
discovered that his driver’s license was missing. (J.A. at 491.)
While at Isom’s apartment, Detective Landers observed a black
BMW in the parking lot. (J.A. at 504-05.) Upon inquiry, Isom
stated that the vehicle belonged to Sabrina Armstrong. (J.A. at
506.) After running the license plate, however, Detective Landers
discovered that the car was registered in the names of both Sabrina
Armstrong and Darryl Young. (J.A. at 506.) Detective Landers then
requested a meeting with Isom (who continued to use the alias of
Darryl Young). Isom failed to arrive for the meeting. (J.A. at
508.)
At some point, Detective Landers discovered that the BMW was
purchased at Shima Auto Sales. On July 24, 2002, he spoke with
the owner of Shima Auto Sales, Ed Ghattan. (J.A. at 508-09.)
Ghattan informed Detective Landers that the BMW had been traded in
for a Nissan 300ZX and that he had the BMW at his residence. The
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trade occurred on June 29, 2002, one day after Detective Landers
questioned Isom about his black BMW. (J.A. at 505-06, 832.)
Detective Landers photographed the BMW. It had the same
license plate number as the BMW registered to Armstrong and Young.
(J.A. at 509-10, 849-51.)
On July 26, 2002, Detective Landers met Isom at the residence
of Isom’s girlfriend, Shanetta Gillies. A Nissan 300ZX was parked
in front of the residence. (J.A. at 511.) During a search of the
residence, Detective Landers found a driver’s license and social
security card in the name of Darryl Young. (J.A. at 512.) After
running the driver’s license through the Department of Motor
Vehicles (DMV), Detective Landers learned that the DMV possessed
two individual’s files for that driver’s license number, including
a Darryl Young with a Charlotte address. (J.A. at 513.) Isom was
arrested and fingerprinted on unrelated charges. At this point,
Detective Landers learned that the person he knew as Darryl Young
was actually Benny Lynn Isom. (J.A. at 514-15.)
Isom told Detective Landers that he was unemployed and had
moved out of his old address on July 12, 2002. Ghattan testified
in court that he had employed Isom two weeks after selling him the
black BMW. (J.A. at 612.) Isom also stated that he went to the
DMV to obtain a new license on that day because the name of Darryl
Young was no longer valid. (J.A. at 516, 544.)
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On August 28, 2002, Detective Landers presented Mrs. Chadwick
with a photographic line-up that included a photo of Isom. Mrs.
Chadwick identified Isom as the individual in the Fidelity bank
robbery. (J.A. at 545.) Detective John Thompson of the Asheboro
Police Department showed the same line-up to Ms. Ellison. Although
Ms. Ellison identified Isom in the first photo line-up, she
identified another individual, the actual Darryl Young, in the
second photo line-up. (J.A. at 302-03, 431-33.)
Isom’s former landlord, Ramon Ganim, recognized Isom as the
person who rented an apartment from him on Flint Street on March 1,
2002, and testified that Isom owned a dark blue or black BMW. (J.A.
at 474-75, 480.) Ganim also recognized the second individual in
the bank surveillance photograph from the CCB robbery as looking
like Isom. (J.A. at 481-82; Supp. J.A. at 21-22.)
Isom’s estranged wife, Sadie Isom, identified the individual
photographed in the Fidelity and the CCB robberies as her husband.
(J.A. at 572-75; Supp. J.A. at 3-4, 7-8, 11-12, 19-20, 23-24.)
Mrs. Isom was able to identify her husband based on his physical
features and his mannerisms. (J.A. at 576.) Mrs. Isom also
identified her husband, Benny Isom, in court. (J.A. at 576.)
Mahmoud Gavgani, Isom’s co-worker at Shima Auto Sales,
identified Isom as the person claiming to be Darryl Young. (J.A. at
444-45.) When Isom purchased the Nissan 300ZX in exchange for the
black BMW, Gavgani agreed to put the title of the vehicle in his
9
own name. (J.A. at 449.) Gavgani also identified the individual in
the bank surveillance photograph from the CCB robbery as looking
like Isom. (J.A. at 456-59; Supp. J.A. at 23-24.)
At trial, the jury was afforded the opportunity to compare
Isom’s neck and forearm to the pictures of a tattoo on Isom’s neck
and a scar on his arm. (J.A. at 854-55, 859-860; Supp. J.A. at 31-
38.)
Isom relied on the testimony of Ghattan for his alibi defense
at trial. Ghattan indicated that Isom’s hours were from
approximately 9:30 a.m. to 5:00 p.m. (J.A. at 615.) However, he
did not specifically remember Isom’s presence at work on April 18,
2002, or April 29, 2002. (J.A. at 639.) Furthermore, Ghattan
acknowledged that he generally stayed in his own office, sometimes
for more than two hours at a time. (J.A. at 618.) Ghattan
admitted to FBI Agent Brereton that Isom could have been absent
from work for two to three hours without his knowledge. (J.A. at
645-46, 647.)
II.
A. Rule 8(a)
Isom first maintains that the district court erred in joining
the two robbery cases together. The Government counters this
argument with its contention that the two indictments in the case
at bar were properly joined on the basis that the two robberies
10
“are of the same or similar character . . . or constitute parts of
a common scheme or plan.” Fed. R. Crim. P. 8(a). Since joinder
pursuant to Rule 8 is a question of law, we review such joinder de
novo. United States v. Mackins, 315 F.3d 399, 412 (4th Cir.
2003).
When called upon to determine whether joinder is proper
pursuant to Rule 8(a), the court considers the facts and
circumstances of the joined charges to ascertain whether they are
sufficiently similar or part of a common plan or scheme. In our
review of the evidence before us, we find that the two robberies
are sufficiently similar and part of a common plan or scheme.
Both robberies commenced in the same fashion: with the
request for change of a twenty and a ten dollar bill. Both
robberies also included the brandishing of a gun. In addition, in
both robberies, cash was taken from two tellers. Moreover, the
individual who robbed Fidelity was wearing some of the same or
significantly similar clothing to the second individual in the
robbery of the CCB. That is, the individual who robbed Fidelity
was wearing a black baseball cap that was substantially similar, if
not identical, in color and marking, to the cap worn by the second
individual in the CCB robbery. Both of these individuals also wore
a dark shirt and a white band around his neck.
Since we find that the robberies “are of the same or similar
character . . . [and] constitute parts of a common scheme or
11
plan[,]” Fed. R. Crim. P. 8(a), we conclude that the joinder of
the two different indictments was appropriate. Accordingly, we
must next consider whether the district court erred in denying
Isom’s motion to sever pursuant to Fed. R. Crim. P. 14(a).
B. Rule 14(a)
After the offenses are properly joined under Rule 8(a), the
district court may, in its discretion, sever the offenses if the
defendant establishes substantial prejudice pursuant to Fed. R.
Crim. P. 14. United States v. Foutz, 540 F.2d 733, 736 (4th Cir.
1976). Rule 14(a) provides that, “[i]f the joinder of offenses or
defendants in an indictment, an information, or a consolidation for
trial appears to prejudice a defendant or the government, the court
may order separate trials of counts, sever the defendants' trials,
or provide any other relief that justice requires.” Fed. R. Crim.
P. 14(a). The district court’s decision to deny a motion to sever
will not be overturned absent a “showing of clear prejudice or
abuse of discretion.” United States v. Acker, 52 F.3d 509, 514
(4th Cir. 1995).
“In ruling on a motion for severance, the trial court is
vested with discretion; it must carefully weigh the possible
prejudice to the accused against the often equally compelling
interests of the judicial process, which include the avoidance of
needlessly duplicative trials involving substantially similar
12
proof.” United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir.
1977)(citing United States v. Isaacs, 493 F.2d 1124, 1160 (7th Cir.
1974)). “The exercise of this discretion will be overturned only
for clear abuse affecting substantial rights of the accused.” Id.(citing Cataneo v. United States, 167 F.2d 820, 823 (4th Cir.
1948)). It is not an abuse of discretion to deny severance “[i]n
cases where the offenses are identical or strikingly similar in the
method of operation and occur over a short period of time.” Acker,
52 F.3d at 514.
As already noted, the Fidelity robbery occurred on April 18,
2002. The CCB robbery occurred just eleven days later, on April
29, 2002. Thus, it can reasonably be said that the two offenses
“occur[red] over a short period of time[.]” Id.In answer to the question of whether “the offenses are
identical or strikingly similar in the method of operation,” Id.,we find in the affirmative. In the instant case, the individual
purported to be Isom is wearing similar clothing in each of the
robberies--including a dark shirt, a white neckband, and a black
baseball cap with the same or similar logo. Moreover, each robbery
commenced in the same fashion, with the asking of change for twenty
and ten dollar bills. Also, in each of the robberies, a gun was
used and cash was taken from two tellers. Thus, we conclude that
the two robberies are “strikingly similar in the method of
operation.” Id.13
The Government contends that two separate trials in this case
would involve duplicative trials and substantially similar proof.
We agree. If these two robberies had been tried separately, Isom’s
wife, Sadie Isom would have been required to testify twice. Also,
Ghattan, Isom’s alibi witness, would likely be called as a witness
at each trial, as would Greensboro Detective Landers. Ganim,
Isom’s former landlord, and Gavgani, Isom’s co-worker at Shima Auto
Sales, would likely be listed as witnesses at both trials. In
addition, the Government has indicated that F.B.I. Agent Brereton
would be a possible rebuttal witness in both trials.
Moreover, the Government has stated that, had this case been
severed, it would have requested a Fed. R. Evid. 404(b) ruling so
as to allow the evidence of the CCB robbery to be entered into
evidence during the trial of the Fidelity robbery and vice versa.
It is well settled that “other crimes” are inadmissible when
offered for the sole purpose of proving a defendant’s criminal
disposition. Fed. R. Evid. 404(b). Nevertheless, “[o]ne
inevitable consequence of a joint trial is that the jury will be
aware of evidence of one crime while considering the defendant’s
guilt or innocence of another.” Foutz, 540 F.2d at 736. However,
“[i]n . . . instances where evidence of one crime is admissible at
a separate trial for another, it follows that a defendant will not
suffer any additional prejudice if the two offenses are tried
together.” Id. (footnote omitted). That is, if evidence from both
14
of the robberies is admissible in each of the trials, the force of
any claim that Isom has regarding prejudice is severely weakened.
See United States v. Bragan, 499 F.2d 1376, 1380 (4th Cir. 1974).
Isom’s identity is at issue in the case at bar. Sadie Isom,
Isom’s estranged wife, identified Isom from the bank surveillance
tapes from each of the robberies. In explaining how she made the
identification, Ms. Isom noted “[t]he shape of his head, certain
mannerisms, the upper torso[,]” and the way that he sometimes held
his mouth. (J.A. at 576.) Moreover, while explaining at trial how
she identified Isom, Cindy Ellison, one of the victim tellers in
the CCB robbery, also stated that she observed “the way his mouth
was shaped.” (J.A. at 162.) Furthermore, Ramon Ganim, Isom’s
former landlord, and Mahmoud Gavgani, one of Isom’s co-workers at
Shima Auto, each testified that the second individual in some of
the bank robbery surveillance photographs from the CCB robbery
looked like Isom.
In addition, the pictures of Isom taken by Detective Landers
reveal a tattoo of a “B” on Isom’s neck, as well as a scar on his
arm, both of which are visible, although not as clear, in the
surveillance tapes from the Fidelity robbery.
If the district court had ruled in favor of the Government on
its Rule 404(b) request, and we think that it would have properly
done so, then much of the evidence in the first trial would likely
15
be admissible in the second one. This weighs heavily in favor of
the Government.
Isom relies heavily on Foutz, 540 F.2d at 733, for his
contention that the Fidelity and the CCB robberies should not have
been tried jointly. In Foutz, this court held that joinder was
improper on the basis that there was no direct evidence connecting
the defendant to both crimes, the evidence introduced as to one
offense would not have been admissible in a trial as to the other
offense, and the only evidence presented to show a similarity was
the fact that the same bank was robbed both times. Isom argues
that the similarities in Foutz and the instant case “are striking.”
(Appellant’s Supp. Br. at 2.) We are unconvinced.
The two robberies in the case at bar occurred within eleven
days of each other; in Foutz, the time difference was two-and-a-
half months. Also, the similarities between the two robberies
here, as discussed below, are much more profound than the
similarities in Foutz. In addition, in the case sub judice, the
clothing worn by Isom in the second robbery was, in many respects,
almost identical to what he wore in the first robbery. Moreover,
the identification testimony here is stronger than was the
identification testimony in Foutz. This is directly attributable
to the testimony of Isom’s wife, Sadie Isom. Perhaps one of the
most compelling distinctions, however, concerns the alibi
testimony. Foutz produced as an alibi witness a Washington police
16
cadet who “testified with considerable certainty and specificity
that Foutz was with her in Washington at the time of the [first]
robbery.” Foutz, 540 F.2d at 735. His alibi witness for the
second robbery, however, “was unable to account for Foutz’
whereabouts at the time of the robbery.” Id. In contrast, Isom’s
alibi witness was unable to state with any specificity whether Isom
was at work on the specific days, much less the specific times,
that either of the two robberies occurred.
In short, although it is true that the Federal Rules of
Criminal Procedure “are designed to promote economy and efficiency
and to avoid a multiplicity of trials,” Bruton v. United States,
391 U.S. 123, 131 (1968), we are of the strong opinion that the
consideration of one’s constitutional right to a fair trial cannot
be reduced to a cost/benefit analysis. Thus, while we are
concerned with judicial economy and efficiency, our overriding
concern in an instance such as this “is that [the] jury consider
only relevant and competent evidence bearing on the issue of guilt
or innocence” for each individually charged crime separately and
distinctly from the other. Id. Nevertheless, even after having
carefully considered these concerns, we are still convinced that
the district court did not err.
Any prejudice Isom suffered by having the two robbery charges
joined into one trial is substantially mitigated by the fact that
much of the evidence of one robbery would be admissible in the
17
other. Thus, we are unpersuaded that the district court’s decision
to deny Isom’s motion to sever amounts to an abuse of discretion.
Accordingly, we will affirm the district court on this issue.
C. Photo Line-up
“We review legal conclusions involved in the district court's
suppression determination de novo but review factual findings
underlying the legal conclusions subject to the clearly erroneous
standard.” United States v. Rusher, 966 F.2d 868, 873 (4th Cir.
1992) (citing United States v. Ramapuram, 632 F.2d 1149, 1155 (4th
Cir. 1980)).
When called upon to review the admissibility of challenged
identification testimony, we undertake a bipartite analysis.
First, the appellant "must prove that the identification procedure
was impermissibly suggestive. Once this threshold is crossed, the
court then must determine whether the identification was
nevertheless reliable under the totality of the circumstances."
Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994) (citations
omitted). If the court concludes that the identification procedure
was not impermissibly suggestive, then we will go no further.
Harker v. Maryland, 800 F.2d 437, 444 (4th Cir. 1986) (ending
analysis after finding photographic array and show-up not
impermissibly suggestive). If, however, we find that the
identification was impermissibly suggestive, we will then determine
18
whether, under the totality of the circumstances, "there is 'a very
substantial likelihood of irreparable misidentification.' " Manson
v. Brathwaite, 432 U.S. 98, 116 (1977) (quoting Simmons v. United
States, 390 U.S. 377, 384 (1968)).
In deciding on the admissibility of the photo line-up, the
district court stated:
It occurs to me, from looking at these photographs, that
it is a series of photographs of individuals perhaps
somewhat close in age, it is a picture of six members of
the black race, it is a picture of – five of the
individuals have very short hair, one – not the Defendant
– has longer hair. Four of the pictures seem to be
looking essentially at the camera, that’s number two,
three, four, and five, of which the Defendant is a
member. If it could be argued that the Defendant is not
looking at the camera, but is looking slightly away from
it, then he would join the group of one and six. So, he
is either four out of six who are looking at the camera,
or he is three out of six who are looking slightly away
from the camera. Nothing suggestive about that, as has
not been argued by the Defendant.
The only thing that is suggestive here is the tilt of the
head that makes this unduly suggestive. Number five is
pointed up, and has his head tilted a slight bit, and
number four is a picture taken of an individual from
approximately the same point of view and front of the
individual as is number two. He doesn’t have – number
four does not have his head tilted back, and number three
may have a slight tilt, but I won’t find that.
It occurs to me that what is set forth in these pictures
is not sufficient to make this picture unduly suggestive.
Two of the individuals have T-shirts on, three of the
individuals have shirts, one of the individuals has a
sweatjacket, sweatshirt with a hook for it. Each of the
individuals has at least some facial hair, unless it is
number six, and he probably does not from looking at this
photograph.
19
The Court finds from the review of this initial outlay of
six photographs that there is nothing so unduly
suggestive about the Defendant as to prejudice his rights
to a fair photo identification.
(J.A. at 78-79.)
Cross-examination of the photo identification witnesses
exposed any possible flaws to the attention of the jury. The
weight and trustworthiness of the identification testimony was
properly left to the jury. For these reasons, we hold that the
district court committed no reversible error in admitting the photo
array or the in-court identification testimony.
D. Extensive Questioning by Trial Court
“[W]here the claimed error is one of trial interference by the
judge, we may not intervene unless the ‘judge's comments were so
prejudicial as to deny [the defendants] an opportunity for a fair
and impartial trial.’” United States v. Godwin, 272 F.3d 659, 673
(4th Cir. 2001)(citing United States v. Gastiaburo, 16 F.3d 582,
589-90 (4th Cir. 1994)(citing Stillman v. Norfolk & W. Ry. Co., 811
F.2d 834, 839 (4th Cir. 1987))). In a case such as this, however,
where the defendant failed to properly object, we will review the
defendant's contentions of judicial interference for plain error.
Id. (citing United States v. Castner, 50 F.3d 1267, 1272 (4th Cir.
1995)). “[A] fair trial, in the constitutional context, is one
20
‘whose result is reliable.’” Id. (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)).
Isom argues that the trial court involved itself too heavily
in the examination and cross-examination of Ghattan. According to
Isom, the court’s line of questioning “did nothing but make Mr.
Ghattan look like a dishonest businessman in front of the jury.”
(Appellant’s Br. at 37.) “The Judge’s cross-examination of Mr.
Ghattan prejudiced the jury against both the witness and, by
association, Bennie Isom, the Defendant.” Id.We have reviewed the transcript of the trial for this case and
find no reversible error in regards to this issue. To a large
degree, the court appears to have been primarily concerned with
having Ghattan clarify his answers or having him answer the
questions that were asked of him. In fact, the trial court also
interjected itself into the questioning of at least two of the
Government’s witnesses. Moreover, there is nothing to indicate
that the district court exhibited a hostile attitude toward Isom or
Isom’s counsel. For these reasons, we will affirm the district
court on this issue.
E. Admission of Isom’s letter
Isom contends that the district court erred in submitting to
the jury Isom’s July 9, 2003, letter, to his alibi witness,
21
Ghattan. More specifically, Isom maintains that the trial court
should not have allowed into evidence the portion of the letter
that reads “I am going to own a portion of Greensboro! $$$$$$$$$$”
According to Isom, the dollar symbols at the end of the letter
created substantial prejudice that was not outweighed by the
probative value of the letter. We disagree.
The district court’s evidentiary rulings are entitled to
substantial deference and will be reversed only in circumstances in
which there has been a clear abuse of discretion. See United
States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992). We will
find an abuse of discretion in this arena only when the district
court acted “arbitrarily or irrationally.” United States v. Ham,
998 F.2d 1247, 1252 (4th Cir. 1993). Simply stated, we are unable
to find that the trial court abused its discretion in admitting
this letter into evidence.
The Federal Rules of Evidence provide that “evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by consideration of undue delay, waste of time, or
needless presentation of cumulative evidence.” Fed. R. Evid. 403.
No such circumstances are present here.
In the letter, Isom includes the dates and the approximate
times of each of the robberies. Immediately following this
information is a statement that “I’m not worrying as long as I was
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at work ‘it [doesn’t] matter.’” Then, just after requesting that
Ghattan “bring [Isom] $70,” Isom writes “I am going to own a
portion of Greensboro! $$$$$$$$$$”
The letter, when considered in its entirety, and coupled with
the visitation logs indicating that Ghattan had visited Isom at the
jail at least four times between the time of arrest and trial,
convinces us that the district court did not err in admitting the
letter in its entirety.
The trial court explained, “I think [‘]own a portion of
Greensboro[’] could be construed to be [‘]you help me here and I am
going to be rich, and therefore you might be rich, too.[’]” (J.A.
at 597.) We agree.
The letter in general, and the last line in particular, are
relevant for the jury’s consideration as to the credibility of
Ghattan’s testimony, specifically, whether he had any motive to be
untruthful while testifying in this trial. While there is other
evidence in the record that addresses Ghattan’s dishonest business
practices, we cannot find that the letter evidence is cumulative
since the other evidence is not concerned with his motive to be
untruthful in this particular case.
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F. Other issues
We have considered the other issues raised by Isom in his
supplemental materials. Because we find them to be wholly without
merit, we decline to address them herein.
III. Conclusion
For the foregoing reasons, Isom’s conviction is affirmed.
AFFIRMED
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