United States v. Kenneth White

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0987n.06
Nos. 12-3726 and 12-3746
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Nov 18, 2013
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT COURT
) FOR THE NORTHERN DISTRICT
v. ) OF OHIO
)
KENNETH A.WHITE, )
) OPINION
Defendant-Appellant. )
BEFORE: BOGGS and DONALD, Circuit Judges, and STAMP, District Judge.*
FREDERICK P. STAMP, JR., Senior District Judge. The government filed two separate
indictments against the defendant, Kenneth White. The district court consolidated these two
indictments into one jury trial. At trial, the jury convicted White on all charges of the two
indictments. White appeals his conviction, arguing that the district court (1) erred when it failed to
sever the charge of failure to appear from the other charges of his indictment; (2) erred by
admitting evidence of his flight; (3) erred by admitting other act evidence under Rule 404(b); and
(4) erroneously instructed the jury on issues of Rule 404(b) evidence and flight.
For the reasons set forth below, we affirm the rulings of the district court.
I. Background
*
The Honorable Frederick P. Stamp, Jr., Senior United States District Judge for the Northern
District of West Virginia, sitting by designation.
Nos. 12-3726 and 12-3746
United States v. Kenneth White
A grand jury indicted White on charges of making false statements in loan applications.
Thereafter, the government filed a superseding indictment. The superseding indictment charged
White with three counts of making false statements in loan applications in violation of 18 U.S.C.
§ 1014, and one count of failing to appear in violation of 18 U.S.C. § 3146(a)(1). The failure to
appear charge resulted from White’s absence from a bond revocation hearing prior to trial. A
warrant was issued for his arrest after the hearing, and when a police officer attempted to arrest
White based on this warrant, White allegedly fled from the officer.
Thereafter White was indicted on further charges. In this second indictment, White was
charged with one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371,
three counts of wire fraud and aiding and abetting in violation of 18 U.S.C. §§ 1343 and 1342, and
one count of bank fraud and aiding and abetting in violation of 18 U.S.C. §§ 1344 and 1342. White
pleaded not guilty to all charges.
The two separate cases were then joined for trial upon White’s motion for joinder. White’s
motion also requested, however, that the count charging him with failing to appear be severed from
all other charges. In support of this request, White argued that the failure to appear charge was not
of the same character as the underlying fraud charges and that trying it with other charges would
give rise to prejudicial inferences that he did not attend the bail revocation hearing due to
consciousness of guilt. The district court denied White’s request to sever the charge, finding that
it was sufficiently connected to the other alleged offenses to permit a single trial because evidence
of White’s failure to appear for the bond revocation hearing would be admissible independently as
consciousness of guilt.
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United States v. Kenneth White
The relevant determinations, facts, and testimony are more fully set out in the analysis of the
errors that White alleges.
Subject matter jurisdiction in this action was conferred upon the district court by 18 U.S.C.
§ 3231. This Court has jurisdiction to hear this appeal as of right pursuant to 28 U.S.C. § 1291,
which authorizes an appeal from a final order by a district court.
II. Analysis
A. Severance
White first challenges the district court’s denial of his motion for joinder and severance
insofar as it sought the severance of the failure to appear charge from all other charges contained
in his two indictments. We review a district court’s decisions regarding motions for severance for
abuse of discretion. United States v. Smith, 197 F.3d 225, 230 (6th Cir. 1999).
Federal Rules of Criminal Procedure 8(a) and 14 govern joinder and severance of offenses.
Under Rule 8(a), charges may be joined where they 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). Rule 14, however, provides that even if the requirements of Rule
8(a) are met, a court may order separate trials if the “joinder of offenses . . . appears to prejudice a
defendant or the government.” Fed. R. Crim. P. 14(a).
Initially, we note that “[i]t is well established that a charge of escape or bail jumping and the
underlying substantive offense are sufficiently connected to permit joinder under Fed.R.Crim.P.
(“Rule”) 8(a).” United States v. Turner, 134 F. App’x 17, 22 (6th Cir. 2005) (citations omitted).
Therefore, the only issue is whether White established that the joinder of the failure to appear charge
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United States v. Kenneth White
with all other charges would prejudice him. “To establish an abuse of discretion requires a strong
showing of prejudice.” United States v. Hang Le-Thy Tran, 433 F.3d 472, 478 (6th Cir. 2006)
(internal quotations and citation omitted). Ultimately, White must show that the denial of his motion
for severance affected his substantial rights. United States v. Cope, 312 F.3d 757, 781 (6th Cir.
2002).
White argues that the district court abused its discretion by denying his motion to sever. He
claims that the limiting instruction that was given to the jury concerning the evidence relating to his
failure to appear charge was not sufficient to alleviate the prejudice resulting from its joinder with
the other charges. According to White, no guidance was given regarding the charges to which the
limiting instruction was to apply. At trial, however, White did not object to the instruction.
Additionally, White has not shown how the district court’s denial of his motion for severance
affected his substantial rights. “[A] jury is presumed capable of considering each count separately.”
Cope, 312 F.3d at 781 (citations omitted). Consequently, White’s conclusory statement that the
joinder of all charges prejudiced him because the jury instruction was not sufficiently limited does
not establish that any of his substantial rights were affected by the inclusion of the failure to appear
charge.
B. Admission of Evidence of Flight
White next challenges the district court’s admission of evidence concerning his flight. We
“review a district court’s determination regarding the admissibility of evidence of flight for abuse
of discretion.” United States v. Atchley, 474 F.3d 840, 853 (6th Cir. 2007) (citing United States v.
Dillon, 870 F.2d 1125 (6th Cir. 1989)).
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United States v. Kenneth White
Generally, “[f]light evidence comes in as an admission of guilt by conduct.” United States
v. Oliver, 397 F.3d 369, 376 (6th Cir. 2005) (quoting Dillon, 870 F.2d at 1126). Many courts,
however, have doubted the probative value of particular flight evidence in criminal trials. Id.
(citation omitted). This circuit has decided to use a four-step analysis to determine whether evidence
of flight is significantly probative and thus admissible. Atchley, 474 F.3d at 853.
Under this analysis, the probative value of flight evidence depends upon the degree
of confidence with which four inferences can be drawn: (1) from the defendant's
behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness
of guilt to consciousness of guilt concerning the crime charged; and (4) from
consciousness of guilt concerning the crime charged to actual guilt of crime charged.
Id. (internal quotations and citations omitted).
“As to the first inference, there must be evidence that there was flight by the defendant.”
Oliver, 397 F.3d at 376 (citation omitted). There is sufficient evidence of flight by White in this
case. First, White’s probation officer testified as to White’s failure to appear for a hearing on his
bond revocation. The probation officer also testified regarding the issues with White’s in-home
monitoring device on the day of that hearing, which indicated tampering with or removal of that
device. Further, the arresting police officer testified that during a traffic stop eight months after
White’s failure to appear, White attempted to flee on foot from the police officer to avoid arrest.
As to the second and third inferences, White fled after being initially indicted. Thus, he fled
after becoming aware that the government charged him with a crime and being informed of the
crimes charged. While he did not flee immediately after being indicted, “the mental crisis that
precipitates flight may fail to occur immediately after the crime, only to erupt much later, when the
defendant learns that he or she is charged with the crime and sought for it.” Dillon, 870 F.2d at
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1128. Thus, we find that White’s initial failure to appear at his bond revocation hearing and his
additional flight from the police officer during the traffic stop several months later support these
inferences.
As to the fourth inference, there is sufficient evidence to connect White’s consciousness of
guilt to his actual guilt on the charges. Such evidence includes the testimony of Douglas Punchak
concerning loan applications compiled by White and the false statements that were contained within
these applications. This evidence supports the inference that White’s consciousness of guilt about
the charges derived from his having committed the violations.
White argues that the court’s admission of the flight evidence was in error due to the eight
months that elapsed between his flight and the date of the alleged failure to appear. White contends
that this length of time undermines any reasonable inference of his consciousness of guilt. This
argument is without merit. As this circuit has stated, “[w]here it is clear the defendant is aware of
the charges against him, the immediacy factor is not required to show consciousness of guilt.”
Oliver, 397 F.3d at 377. White fled after he was initially indicted and after he had made appearances
regarding this initial indictment. Therefore, White cannot say that he was not aware of charges
being brought against him. Thus, the district court did not abuse its discretion in permitting
evidence of White’s flight to be introduced at trial.
C. Other Acts Evidence
White further challenges the district court’s admission of certain evidence whose
admissibility is governed by Federal Rule of Evidence 404(b). This Court reviews a district court’s
rulings on FRE 404(b) evidence, like a district court’s other evidentiary rulings, for abuse of
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discretion. United States v. Allen, 619 F.3d 518, 523 (6th Cir. 2010) (citing United States v.
Haywood, 280 F.3d 715, 720 (6th Cir. 2002).1 “Generally, an abuse of discretion is evident when
a reviewing court is firmly convinced that a mistake has been made. A district court abuses its
discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law
or uses an erroneous legal standard.” Id. (quoting Ross v. Duggan, 402 F.3d 575, 581 (6th Cir.
2004)).
Under FRE 404(b), the government may “introduce evidence of other crimes, wrongs, or acts
committed by the defendant so long as the evidence is not used merely to show propensity and if it
bears upon a relevant issue in the case.” United States v. Clay, 667 F.3d 689, 693 (6th Cir. 2012)
(internal quotation marks and citation omitted). FRE 404(b) lists the following non-exhaustive list
of proper purposes: “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).
1
Although a more recent decision by this Court, United States v. Clay, 667 F.3d 689, 693 (6th
Cir. 2012), applied a three-tiered standard of review to a district court’s rulings on FRE 404(b)
evidence, Allen explained that Haywood, 280 F.3d at 720, “repudiated the three-tiered standard of
review for Rule 404(b) determinations” because “abuse of discretion is the proper standard of review
for a district court’s evidentiary rulings.” 619 F.3d at 524 n.2 (internal quotation marks and citations
omitted). In fact, in Clay, the dissent cited Allen, Haywood, and other cases for the proposition that,
despite a “longstanding intra-circuit conflict regarding the appropriate standard of review for
evidentiary decisions under Rule 404(b), the correct standard . . . is the deferential one that we apply
to every other evidentiary ruling.” Clay, 667 F.3d at 703 (Kethledge, J., dissenting); see also United
States v. Love, 254 F. App’x 511, 514 (6th Cir. 2007) (“[T]o the extent that cases after Haywood . . .
apply the three-tiered standard of review, they are errant because when a later decision of this court
conflicts with one of our prior published decisions, we are still bound by the holding of the earlier
case.” (internal quotation marks and citation omitted)). As Allen was decided and published nearly
two years prior to Clay–and Haywood, a decade before Clay–we are bound by the abuse of
discretion standard that it articulated.
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Nos. 12-3726 and 12-3746
United States v. Kenneth White
White specifically challenges the district court’s admission of evidence that he previously
used the fictitious name “El Mundo 2000” to secure financing for certain vehicles that led to a
conviction on charges of bank fraud in 2001.2 White had indicated on the financing applications that
he was the Chief Executive Officer of El Mundo and had produced false pay stubs to establish this
as well. This same name was again used on a loan application involved in White’s 2012
convictions. Therefore, the government sought to introduce evidence from the 2001 conviction
during White’s 2012 trial in order to show White’s intent, knowledge, absence of mistake, and
modus operandi.
Prior to admitting Rule 404(b) evidence, the district court must: (1) make a
preliminary finding as to whether sufficient evidence exists that the prior act
occurred; (2) determine whether the other act is admissible for one of the proper
purposes outlined in Rule 404(b); and (3) apply Rule 403 balancing to determine
whether the evidence’s probative value is substantially outweighed by the danger of
unfair prejudice or the other concerns embodied by Rule 403.
Allen, 619 F.3d at 523 (6th Cir. 2010) (citing United States v. Mack, 258 F.3d 548, 553 (6th Cir.
2001)).
Based on a review of White’s brief, he does not seem to dispute the district court’s
determination that sufficient evidence established that White used the name “El Mundo 2000” on
a previous loan application involved in his 2001 conviction. The investigating agent involved in the
2001 conviction testified that White identified himself as the president or corporate officer for
2
We note that White also alleges that the district court erred in introducing evidence of his
flight as improper Rule 404(b) evidence. White, however, fails to provide any argument as to why
such evidence is inadmissable Rule 404(b) evidence, and we are unable to determine how such
evidence could be construed as such.
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United States v. Kenneth White
“elmundo2000.com” in order to secure financing for the vehicles that were involved in his
conviction for bank fraud in 2001. Accordingly, we find no abuse of discretion in the district
court’s conclusion that “sufficient evidence exists that the prior act occurred.” Id.
The district court next had to determine whether the evidence was admissible for a proper
FRE 404(b) purpose. To prove a violation of 18 U.S.C. § 1014 for making false statements in loan
applications, the prosecution must establish that a defendant “knowingly” made the false statements.
See 18 U.S.C. § 1014. White argued that he had nothing to do with the preparation and distribution
of the financial documents involved in this case. Thus, he put his knowledge of any false statements
at issue. Under FRE 404(b), evidence of prior bad acts may be admitted to establish knowledge and
the district court did not abuse its discretion in admitting the evidence for that purpose. The
evidence that White used “El Mundo 2000” as his employer on prior financing applications and that
such a name was again used on financing applications involved in the 2012 case is probative of
White’s knowledge of the false statements concerning “El Mundo 2000.” Additionally, the district
court provided an instruction prior to the admission of this evidence that explained to the jury that
one of the limited purposes for which the jury could use it was to establish knowledge.
Lastly, the district court had to apply the FRE 403 balancing test. Under FRE 403, a court
may exclude relevant evidence if its probative value is substantially outweighed by its prejudicial
effect. As stated above, the evidence of White’s use of “El Mundo 2000” on prior financing
applications was probative of his knowledge of the false statements concerning “El Mundo 2000”
in the financing applications in this case. The district court also minimized the prejudicial effect of
the evidence by providing a jury instruction explaining the evidence’s limited use prior to its
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admission. Further, the testimony regarding this evidence was very brief and limited to the specific
financing applications that eventually were used to bring charges of bank fraud against White in
2000. Based on the limiting instruction and the brevity of the testimony offered, we find that the
district court did not abuse its discretion in admitting the evidence under FRE 404(b).
D. Jury Instructions
Finally, White argues that the district court’s jury instructions concerning flight and FRE
404(b) evidence were erroneous and prejudicial. Generally, we review challenges to jury
instructions for abuse of discretion. United States v. Kuehne, 547 F.3d 667, 679 (6th Cir. 2008).
When the defendant, however, fails to object to the jury instructions during trial, we review the jury
instruction for plain error. United States v. Aaron, 590 F.3d 405, 408 (6th Cir. 2009).
1. FRE 404(b) Evidence Instructions
White admits that he did not object to the jury instructions pertaining to Rule 404(b)
evidence. Therefore, we review the Rule 404(b) evidence instruction for plain error. To establish
plain error, White must show that: “(1) an error occurred in the district court; (2) the error was
obvious or clear; (3) the error affected defendant's substantial rights; and (4) this adverse impact
seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United
States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006) (quoting United States v. Emuegbunam, 268
F.3d 377, 406 (6th Cir. 2001)). If the error is harmless, however, we will not reverse the conviction.
United States v. Vasquez, 560 F.3d 461, 470 (6th Cir. 2009). An error is harmless if “it appears
beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”
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United States v. Kenneth White
United States v. Baldwin, 418 F.3d at 575, 582 (6th Cir. 2005) (citation and quotation marks
omitted).
White argues that the initial instruction pertaining to the FRE 404(b) evidence denied him
due process and a fair trial as it failed to adequately guide the jury in its use of the evidence. He
specifically argues that the initial instruction provided prior to the testimony that introduced the FRE
404(b) evidence was vague, confusing, failed to carefully identify a specific purpose for which the
evidence was being admitted, and failed to properly caution the jury against using the evidence to
draw conclusions forbidden by Rule 404(b). First, we find that the instruction was not vague or
confusing, and it did not fail to properly caution the jury against using the evidence for improper
purposes. The district court specifically stated that the evidence was “coming in for what we call
a limited purpose, not . . . direct evidence to show that the person committed the crime here.” Thus,
the district court properly warned the jury that this evidence was not propensity evidence, which is
prohibited by FRE 404(b).
In its limiting instruction, the district court did state that the evidence was coming in “on the
issue of motive or opportunity or intent, plan, knowledge, those kinds of things.” Id. We find that
the district court erred in giving this instruction because some of those applications, specifically
motive and opportunity, were not at issue in this case. See United States v. Fraser, 448 F.3d 833,
842 (6th Cir. 2006) (finding that motive, opportunity, and identity were not at issue in the case and
that it was error for the district court to include these purposes in the limiting instruction). However,
this error does not require that we reverse White’s conviction.
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United States v. Kenneth White
As in Fraser, White has failed to show how the inclusion of motive and opportunity in the
initial jury instruction affected his substantial rights. Usually, in order for a defendant to satisfy the
substantial rights prong of plain error review, “the defendant must make a specific showing of
prejudice.” Id. White has not shown how the error prejudiced him. White argues that the jury was
given “free rein” to use the evidence as it saw fit. This is incorrect, however, because the district
court specifically provided the jury with a later instruction that limited the use of such evidence “to
the defendant’s intent and/or knowledge.” Further, White has not even suggested that the jury’s
consideration of the Rule 404(b) evidence permitted any unfair inferences concerning his motive
or opportunity, which were purposes included in the initial limiting instruction. Therefore, while
the district court’s inclusion of motive and opportunity in the initial Rule 404(b) jury instruction was
in error, we find that the error does not require the reversal of White’s conviction.
2. Flight Instruction
White asserts that he did object to the flight instruction and that we should therefore apply
the abuse of discretion standard in reviewing these instructions. The government, however, contests
this claim, stating that while White did file a motion in limine to preclude the instruction, he did not
provide any citation to the record to demonstrate that he objected at trial to the instruction.
Therefore, the government states that White did not properly preserve his objection for appeal. This
circuit has stated that when a party does not renew an objection to an undecided motion in limine
during trial, the issue is reviewed for plain error. Atchley, 474 F.3d at 853-54. We find, however,
that it is not proper to reverse White’s conviction regardless of whether the instruction is reviewed
under either standard.
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“When jury instructions are claimed to be erroneous, we review the instructions as a whole,
in order to determine whether they adequately informed the jury of the relevant considerations and
provided a basis in law for aiding the jury in reaching its decision.” United States v. Frederick, 406
F.3d 754, 761 (6th Cir. 2005). We will only reverse a judgment based on an improper jury
instruction “if the instructions, viewed as a whole, were confusing, misleading, or prejudicial.”
United States v. Harrod, 168 F.3d 887, 892 (6th Cir. 1999) (citation and quotation marks omitted).
The flight instruction given to the jury in this case read:
You have heard testimony that after the crime was supposed to have been committed
in this case, the defendant fled.
If you believe the defendant fled, then you may consider this conduct, along with all
the other evidence, in deciding whether the government has proved beyond a
reasonable doubt that he committed the crime charged. This conduct may include
that he thought he was guilty and was trying to avoid punishment. On the other
hand, sometimes a [sic] innocent person may flee for some other reason.
As indicated above, the evidence of flight was properly admitted in this case and, therefore,
providing the instruction on such evidence was proper. See Dillon, 870 F.2d at 1129 (holding that
because the district court did not abuse its discretion in admitting evidence of flight, such a
conclusion “forecloses any argument” that the district court erred in deciding to give a flight
instruction). White does not object to the district court’s providing an instruction concerning the
flight evidence. Rather, he objects to the content of the instruction, arguing that the instruction did
not indicate the charge or charges for which the jury could consider the flight evidence. We find,
however, that it was not necessary for the district court to state explicitly the charges for which the
jury could consider such evidence. The charges were interrelated and resulted from the same or
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similar transactions. Therefore, the jury was justified in applying the evidence of flight to all
charges. Because the flight instruction was proper, the instructions as a whole could not be
considered confusing, misleading, or prejudicial. Therefore, we decline to reverse White’s
conviction based on this argument.
III. Conclusion
For the foregoing reasons, we AFFIRM White’s conviction.
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