United States v. Michael Batee , 355 F. App'x 90 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2482
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Michael Batee, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 3, 2009
Filed: December 8, 2009
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Before BYE, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
A jury found Michael Batee guilty of kidnapping, carjacking, possessing and
brandishing a firearm in furtherance of crimes of violence, and being a felon in
possession of a firearm. The District Court1 entered judgment upon the verdict and
sentenced Batee to a total of 444 months in prison—comprised of concurrent terms
of 360 months, 180 months, and 120 months, plus a consecutive 84-month term—and
three years of supervised release. Batee appeals, and his counsel has filed a brief
under Anders v. California, 386 U.S. 738 (1967), challenging the court's decision
1
The Honorable Stephen N. Limbaugh, Sr., United States District Judge for the
Eastern District of Missouri, now retired.
during trial to allow the government to present evidence of other criminal acts
committed by Batee.
The evidence at Batee’s five-day trial included the testimony of the two victims
of the charged conduct, who recounted that in July 2007, Batee and another man
entered the victims' parked car with guns drawn and threatened to shoot them. The
assailants forced the victims to drive from St. Louis, Missouri, to East St. Louis,
Illinois. After the brother of one of the victims delivered $1000 to Batee and his co-
defendant, they released the victims but stole their car. The government also
introduced evidence of Batee’s July 2006 felon-in-possession conviction and his May
2007 arrest related to an uncharged kidnapping and carjacking where Batee
brandished a firearm. Before this other-crimes evidence was presented, the court gave
the jury a limiting instruction, which was repeated in the final jury instructions.
Rule 404(b) of the Federal Rules of Evidence prohibits the use of evidence of
a defendant’s other crimes, wrongs, or bad acts to prove character, but the rule permits
the admission of such evidence to prove motive, opportunity, intent, preparation, plan,
knowledge, or absence of mistake or accident. Fed. R. Evid. 404(b); United States v.
Walker, 428 F.3d 1165, 1169 (8th Cir. 2005), cert. denied, 546 U.S. 1194 (2006). To
be admissible, other crimes evidence must (1) be relevant to a material issue, (2)
involve conduct proven by a preponderance of the evidence, (3) be of greater
probative value than prejudicial effect, and (4) involve conduct similar in kind and
close in time to a charged offense. Id. "We review admission of such evidence for
abuse of discretion and will reverse only when the evidence clearly had no bearing on
the case and was introduced solely to show defendant’s propensity to engage in
criminal misconduct." Id. Upon careful review, we conclude that any error in the
admission of the other-crimes evidence in this case was harmless in light of the
overwhelming evidence of Batee’s guilt. See United States v. Farish, 535 F.3d 815,
820–21 (8th Cir. 2008) (concluding that even if admission of Rule 404(b) evidence
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was abuse of discretion, error was harmless in light of strength of evidence supporting
conviction).
We have independently reviewed the record under Penson v. Ohio, 488 U.S. 75,
80 (1988), for other nonfrivolous issues and have found none. Accordingly, we
affirm, and we grant counsel’s motion to withdraw, provided that counsel inform
Batee about the procedures for filing pro se petitions for rehearing and for certiorari.
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