United States v. Homick-Van Berry

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-18-2007
USA v. Homick-Van Berry
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2196
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Homick-Van Berry" (2007). 2007 Decisions. Paper 738.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/738
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
06-2196
UNITED STATES OF AMERICA
v.
NADINE HOMICK-VAN BERRY,
Appellant
(D.C. Crim. No. 04-cr-00269-1)
No. 06-2212
UNITED STATES OF AMERICA
v.
CLINTON VAN BERRY,
Appellant
(D.C. Crim. No. 04-cr-00269-2)
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
District Judge: The Honorable Jerome B. Simandle
Submitted Under Third Circuit LAR 34.1(a)
June 26, 2007
Before: BARRY, FUENTES, and JORDAN, Circuit Judges
(Opinion Filed: July 18, 2007)
OPINION
BARRY, Circuit Judge
This case comes before us as consolidated appeals by husband-and-wife co-
defendants who were found guilty by a jury of conspiracy to rob a courier as he delivered
more than $33,000 in cash from the municipality of Atlantic City to Commerce Bank.
For the reasons that follow, we will affirm.
I.
As we write only for the parties, our discussion of the facts is brief. At the time of
the offense conduct, Appellant Clinton Van Berry (“Clinton”) was the Assistant Municipal
Tax Collector for Atlantic City, and was married to Appellant Nadine Homick-Van Berry
(“Nadine”). Federal authorities had been monitoring the couple for several years as they
schemed to bribe Mayor Robert Jackson of West Cape May in exchange for the
“engineer’s estimate” for the borough’s sewer construction contracts. In August 2003,
working with Mayor Jackson, federal authorities secretly recorded the Van Berrys
allegedly paying the mayor $500 in exchange for a package that purportedly contained
“bid specs,” but that, in fact, contained no useful information.
As the bribery scheme was unfolding, Nadine began to develop another scheme to
rob a courier as he delivered the proceeds of an Atlantic City tax lien sale to Commerce
Bank. She approached her longtime friend, Charles Varvaro, and sought his help.
2
Unbeknownst to her, Varvaro, a contractor, was also an FBI informant who had been
supplying authorities with information about the Van Berrys’ efforts to bribe Mayor
Jackson. Using information supplied by Clinton, Nadine and Varvaro planned the
robbery. Authorities eventually arrested Clinton and Nadine after an elaborate sting
operation.
The Van Berrys were charged with conspiracy to commit robbery and attempted
robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a) and § 2 (Counts 1 and 2); and
conspiracy to bribe and bribery of the mayor of West Cape May, contrary to 18 U.S.C. §
666(a)(2) and in violation of 18 U.S.C. § 371 (Counts 3 and 4). The District Court tried
the Van Berrys together, but separately tried the robbery and bribery counts. The bribery
trial ended in mistrials; the robbery trial resulted in guilty verdicts. After the District
Court sentenced the Van Berrys, each, to 46 months’ imprisonment, these appeals
followed.1
II.
A.
Clinton challenges, first, the District Court’s decision to admit evidence of the
bribery scheme, pursuant to Rule 404(b) of the Federal Rules of Evidence, in his trial for
robbery. Rule 404(b) evidence, to be admitted, must have a proper purpose; must be
relevant; must have a probative value that is not substantially outweighed by its potential
1
Jurisdiction in the District Court was proper under 18 U.S.C. § 3231. We have
jurisdiction, pursuant to 28 U.S.C. § 1291, to review the District Court’s final judgments.
3
for unfair prejudice; and must be accompanied by an appropriate limiting instruction.
Huddleston v. United States, 485 U.S. 681, 691-92 (1988); United States v. Vega, 285 F.3d
256, 261 (3d Cir. 2002). We review the Court’s decision to admit such evidence for abuse
of discretion. United States v. Boone, 279 F.3d 163, 187 n.17 (3d Cir. 2002).
The District Court did not abuse its discretion in admitting Rule 404(b) evidence of
the bribery scheme. Defense counsel disregarded a clear warning from the Court and
opened the door to the admission of this evidence by questioning Varvaro about all
payments that he had received from the FBI since January 2002 in exchange for his
cooperation. Counsel was well aware that most of these payments, which totaled $10,158,
were for Varvaro’s cooperation in connection with the bribery investigation. Admission
of the Rule 404(b) evidence was necessary, therefore, to counteract the misimpression that
this money was payment solely for Varvaro’s cooperation in connection with the robbery
investigation. It was also necessary, in the face of defense counsel’s persistent questioning
into Varvaro’s dealings with Nadine going back to 2000, to remedy the perception that
Varvaro’s good-faith effort to comply with the Court’s initial directive not to testify to the
bribery scheme was, in fact, an attempt to hide pertinent information from the jury.
The Rule 404(b) evidence was admissible for the independent reason that it tended
to show the Van Berrys’ knowledge, intent, and motive with reference to the robbery
scheme. Beyond being probative of the Van Berrys’ past relationship with Varvaro and
Nadine’s reason for involving him in the robbery scheme, the evidence also showed the
Van Berrys’ motive for devising the robbery scheme in the first place: to recoup losses that
4
they had sustained in their unsuccessful scheme to bribe Mayor Jackson for information
about West Cape May’s sewer contracts. To minimize the danger of unfair prejudice, the
Court instructed jurors, on four separate occasions, that they could consider this evidence
only to show Varvaro’s relationship with the Van Berrys and the Van Berrys’ knowledge,
intent, and motive behind the robbery scheme. The significant probative value of the
evidence was not substantially outweighed by any danger of unfair prejudice. See Fed. R.
Evid. 403.
Clinton argues, next, that the District Court’s limiting instructions relating to the
Rule 404(b) evidence were effectively negated by contradictory or confusing instructions
elsewhere in the charge. The instructions in question were the standard instructions, given
in nearly every jury trial, that jurors may draw on “common sense,” “experience,” and
reasonable “inferences” when evaluating the evidence. Clinton contends that these
instructions were an invitation to consider propensity evidence. Because he did not raise
this argument before the District Court, we review only for plain error. United States v.
Brennan, 326 F.3d 176, 182 (3d Cir. 2003).
We find no error, much less plain error. The District Court’s limiting instructions
certainly were not “a mystifying cloud of words” (Br. 35), but rather, were a clear, precise,
and unambiguous directive not to consider the Rule 404(b) evidence as evidence of
propensity.2 See United States v. Cruz, 326 F.3d 392, 396-97 & nn.2, 3 (3d Cir. 2003)
2
We, therefore, reject Clinton’s related argument that the Court committed plain error
by failing specifically to prohibit the jury from using Rule 404(b) evidence to infer that he
5
(approving similar limiting instructions); United States v. Mathis, 264 F.3d 321, 326 (3d
Cir. 2001) (same). We presume that the jury heeded the Court’s instructions, Whitney v.
Horn, 280 F.3d 240, 257 (3d Cir. 2002), and find no reason to suppose that jurors
understood the Court’s general instructions on the use of “common sense” to override its
specific limitations on the use of Rule 404(b) evidence. See also 2AA140 (“[I]f testimony
or exhibits have been received only for a limited purpose, you must follow the limiting
instruction that I have given you.”).) Clinton’s argument is meritless.
Clinton contends, finally, that the District Court erred by instructing jurors that
“[n]o presumption of guilt may be raised and no inference of any kind may be drawn from
the failure of a defendant to testify.” (2AA142.) He contends that the word “failure” was
pejorative and seriously affected the fairness of the proceedings. No contemporaneous
objection was raised, so we review for plain error. Brennan, 326 F.3d at 182.
Once again, we find no error, and certainly no plain error, in the District Court’s
instruction. Use of the word “failure” in this context is commonplace. See, e.g., McKune
v. Lile, 536 U.S. 24, 42 (2002) (“[T]he Fifth Amendment prohibits courts from instructing
a criminal jury that it may draw an inference of guilt from a defendant’s failure to
testify.”); James v. Kentucky, 466 U.S. 341, 344 (1984) (“[I]n order fully to effectuate the
right to remain silent, a trial judge must instruct the jury not to draw an adverse inference
was “more likely” to have participated in the robbery conspiracy. The Court repeatedly
instructed jurors not to consider the Rule 404(b) evidence “for any other purpose” than
those for which it was admitted. (2AA147.)
6
from the defendant’s failure to testify if requested to do so.”); Harris v. Rivera, 454 U.S.
339, 346 (1981) (“It is equally routine for [judges] to instruct juries that no adverse
inference may be drawn from a defendant’s failure to testify . . . .”). The Tenth Circuit has
rejected the very argument Clinton makes here, see United States v. Adams, 914 F.2d
1404, 1408-09 (10th Cir. 1990) (commenting that the argument “almost amounts to the
picayune”), as do we.
B.
We turn to Nadine’s arguments. She argues, first, that statements that Clinton made
to the FBI tended to incriminate her, and that the District Court’s decision to permit an FBI
agent to testify about them at trial violated her rights under the Confrontation Clause when
Clinton exercised his Fifth Amendment right not to testify.3 Our review of this argument,
which the District Court considered and rejected, is plenary. United States v. Lore, 430
F.3d 190, 208-09 (3d Cir. 2005).
The Sixth Amendment guarantees the right of an accused “to be confronted with the
witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36,
68-69 (2004), the Supreme Court held that an accused’s confrontation right must be
3
Clinton made the statements in an hour-long interview at an FBI office shortly after
Nadine was arrested, but before he was placed under arrest. He informed agents, among
other things, that he had telephoned his wife twice on the day of the robbery, first, to ask
her to go to lunch that day, and later, to inquire about a problem she was having with a
tooth. He also denied having any knowledge of his wife’s involvement in any scheme to
rob the tax office, and denied having any conversations with his wife concerning a
robbery.
7
honored when a witness’s out-of-court statements to law enforcement are admitted against
the accused. Crawford and its progeny are inapplicable here, however, because the
District Court admitted Clinton’s statements against him alone, and specifically instructed
jurors that they “may not consider Clinton Van Berry’s statements to the FBI on December
17th in any way against Nadine Van Berry.” (1AA225.) See In re Brown, 457 F.3d 392,
395 (5th Cir. 2006) (finding that Crawford was not violated where co-defendant’s out-of-
court confession was admitted solely against co-defendant); cf. Crawford, 541 U.S. at 40,
68 (finding Confrontation Clause violation in admission of wife’s testimonial statement as
evidence against husband in criminal trial). We find, therefore, no Sixth Amendment
violation under Crawford.
We also find, as did the District Court, that Clinton’s statements did not
“powerfully incriminate” Nadine. Cf. Bruton v. United States, 391 U.S. 123, 124 n.1, 135-
36 (1968) (holding that limiting instruction was insufficient to avoid Confrontation Clause
violation where co-defendant’s “powerfully incriminating” extrajudicial statement was
admitted in joint trial with petitioner). In Richardson v. Marsh, 481 U.S. 200, 208 (1987),
the Supreme Court explained that when a co-defendant’s confession does not, on its face,
incriminate the petitioner, and does so only when linked with other evidence, it may be
introduced in a joint trial with a limiting instruction. Here, Clinton’s statements were not
inculpatory. They did not expressly implicate Nadine in the robbery, and they certainly
were not powerfully incriminating on their face. See United States v. Belle, 593 F.2d 487,
493 (3d Cir. 1979) (en banc) (“When a codefendant’s extrajudicial statement does not
8
directly implicate the defendant, however, the Bruton rule does not come into play.”); see
also United States v. Lopez-Lopez, 282 F.3d 1, 13 (1st Cir. 2002); United States v. Olano,
62 F.3d 1180, 1195-96 (9th Cir. 1995); United States v. Rubio, 709 F.2d 146, 154-55 (2d
Cir. 1983). Whatever incriminating value they may have had with respect to Nadine was
derived by inference from other evidence introduced at trial.4 Under the circumstances,
we conclude that the Court’s limiting instruction was sufficient to avoid a Confrontation
Clause violation.
Nadine argues, next, that the District Court erred by denying her motion to sever
her trial from that of Clinton. The decision to sever the trials of criminal codefendants
rests in the sound discretion of the district court. United States v. Lore, 430 F.3d 190, 205
(3d Cir. 2005). We, therefore, review the District Court’s denial of Nadine’s motion for
severance for abuse of discretion. Id.
Rule 14(a) of the Federal Rules of Criminal Procedure permits a district court to
sever codefendants’ trials where a joint trial “appears to prejudice a defendant.” In Zafiro
4
Other evidence admitted at trial, moreover, substantially duplicated any
incriminating inference that jurors might have drawn from Clinton’s statements. For
instance, the government introduced phone records showing that Clinton had placed a 22-
second phone call to Nadine just as the courier was leaving the tax office on the day of
the robbery, as well as recordings of Nadine describing to Varvaro the manner by which
Clinton would alert her of the impending delivery of tax sale proceeds. See Rubio, 709
F.2d at 155 (noting that co-defendant’s contested statement presented “nothing new or
incriminating . . . which had not already been presented” through other evidence). Thus,
even if the District Court had erred under Bruton, the error was harmless. See Delaware
v. Van Arsdall, 475 U.S. 673, 684 (1986) (holding that Confrontation Clause errors were
subject to harmless error analysis).
9
v. United States, 506 U.S. 534, 539 (1993), the Supreme Court held that “a district court
should grant a severance under Rule 14 only if there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or innocence.” The sole trial right that Nadine
identifies, however, is her right of confrontation—a right that was not violated. We
conclude that the District Court did not abuse its discretion in denying Nadine’s motion to
sever her trial from that of Clinton.
Nadine, finally, adopts each of the arguments that Clinton raised in his appeal. For
reasons already discussed, we reject those arguments.
III.
For the foregoing reasons, we will AFFIRM the final judgments of the District
Court.
10