United States v. Patrick Davis

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2769
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PATRICK K. DAVIS,
Defendant-Appellant.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 10-CR-245 — C. N. Clevert, Jr., Judge.
ARGUED APRIL 11, 2013 — DECIDED AUGUST 1, 2013
Before EASTERBROOK, Chief Judge, and MANION and ROVNER,
Circuit Judges.
MANION, Circuit Judge. Patrick Davis was charged with four
counts of bank robbery and two counts of witness intimidation.
A jury convicted him on three of the bank robbery counts, but
acquitted him of the other crimes. On appeal, Davis seeks a
new trial. He argues that the district court improperly in-
2 No. 12-2769
structed the jury and that the two witness intimidation counts
should have been tried before a separate jury under Federal
Rules of Criminal Procedure 8(a) and 14(a). We disagree, and
affirm his convictions.
I.
Facts
On November 16, 2010, a federal grand jury returned a
four-count indictment alleging that Davis had robbed four
banks in violation of 18 U.S.C. § 2113(a). These bank robberies
all occurred near Milwaukee, Wisconsin, and were committed
in a similar fashion. Surveillance photos from the robberies
also suggested that the robberies had been committed by the
same individual because the images from the four robberies all
showed a male robber with similar facial features who some-
times wore the same clothes. The robberies occurred as
follows:
• On December 10, 2005, a man at the Tri-City National
Bank in Brookfield, Wisconsin, gave a handwritten note
to the teller stating, among other comments, “Important,
remain calm”; “I’m armed”; and “I have nothing to lose.”
The robber escaped with $1,519.
• On January 7, 2006, a man at the Tri-City National Bank
in Wauwatosa, Wisconsin, asked the teller for a roll of
dimes before giving the teller a handwritten note stating,
among other comments, “Don’t panic. If you cooperate
you won’t be hurt.” The robber escaped with $3,062.
• On January 12, 2006, a man at the TCF Bank in
Shorewood, Wisconsin, asked the teller for a roll of
No. 12-2769 3
quarters before giving the teller a handwritten demand
note that indicated that the robber was “armed.” The
robber escaped with $1,023.
• On January 17, 2006, a man at the North Shore Bank in
Wauwatosa, Wisconsin, gave a handwritten note to the
teller stating that he was “armed.” The teller gave the
robber cash in small denominations, and the robber
moved over to the adjacent window of a second teller and
demanded cash in higher denominations. The robber
escaped with $2,325.
After the fourth robbery, a witness saw a man resembling
the robber walk quickly through a nearby parking lot, enter a
white Cadillac CTS with a spoiler, then speedily drive away.
Later that night, after a news alert broadcasted surveillance
photos of the robbery, an anonymous tipster called the local
police and identified Davis as the man in the surveillance
photos. The tipster also provided the police with a physical
description of Davis, the address and names of Davis’s family
members, and a description of a white Cadillac CTS owned by
Davis’s mother, Betty Johnson.
Based on this information, the police conducted a criminal
history check and other background checks on Davis, and also
obtained a photograph of him. The photograph of Davis
resembled the man in the surveillance photos, and the police
decided to visit an address mentioned by the anonymous
tipster. The address led the police to a duplex that Johnson
owned, and the police met Johnson and talked to her about her
son. Johnson told the police that Davis was not home at the
time, and they informed her about his suspected involvement
4 No. 12-2769
in the bank robberies. They also found Johnson’s white
Cadillac CTS with a spoiler, which Davis had been known to
drive. The police left a business card with Johnson and asked
her to encourage Davis to get in touch with the police, but
Davis never contacted the police. Instead, the police received
information suggesting that Davis had fled Milwaukee and
had traveled to Omaha, Nebraska.
Just two months after the fourth bank robbery, a woman
named Andronika Moore reported to the police that she had
been threatened by Davis’s family. Moore and her family lived
in the duplex owned by Johnson, and Moore’s sister was in a
serious relationship with Davis’s brother at the time. Moore
reported that, sometime in February or March, Davis’s brother
had confronted her, displayed a gun, and accused her of
tipping off the police about Davis’s alleged involvement in the
bank robberies for reward money. About a month later,
Johnson argued with Moore two times, and their verbal fights
escalated into physical altercations.
Meanwhile, law enforcement continued to search for Davis
in Omaha, Nebraska. On April 12, 2006, Davis turned himself
in to the FBI office in Omaha and was taken into custody. An
FBI agent advised Davis of his rights, and Davis initially
expressed an interest in cooperating with investigators, but he
later declined to discuss the bank robberies. Law enforcement
released Davis from custody in Omaha on April 21, 2006, and
he then returned to Milwaukee.
Two days later, in the early morning of April 23, 2006, shots
were fired into a truck owned by Moore’s husband. Bullets
went through the truck’s windshield and into a nearby house.
No. 12-2769 5
When the police investigated the scene, they recovered bullets
and casings, then decided to conduct surveillance on Davis.
The next day, on April 24, 2006, law enforcement officers
followed Davis as he rode away from his mother’s house in a
car driven by his brother. The officers stopped the car, arrested
Davis, and found a loaded Glock .40 caliber pistol in his
possession. The Wisconsin State Crime Laboratories later
determined that a bullet and two casings recovered from the
shooting of Moore’s truck had been shot from this pistol.
Davis was eventually indicted on November 16, 2010, and
a superseding indictment was filed on January 19, 2011.1 This
superseding indictment charged Davis with four counts of
bank robbery in violation of 18 U.S.C. § 2113(a), and two
witness intimidation counts based on the shooting of Moore’s
truck. Specifically, Count Five charged Davis with witness
intimidation by use of physical force in violation of 18 U.S.C.
§ 2 and § 1512(a)(2)(C), and alleged that Davis had “used
physical force against [Moore] by firing a gun at her residence
and vehicle with the intent to hinder, delay, and prevent
communication of information to a law enforcement officer
about the bank robberies described in Counts One through
Four of this indictment.” Count Six charged Davis with
discharging a firearm during and in relation to the witness
1
The briefs do not explain why the government took approximately
five years to obtain an indictment. The Presentence Investigation Report
indicated that Davis was in prison from July 2007 to April 2011 for a bank
robbery conviction in state court, and this imprisonment might have been
a factor in the government’s timing. Nonetheless, Davis does not make an
issue of the delay in his appeal.
6 No. 12-2769
intimidation offense in violation of 18 U.S.C. § 2 and
§ 924(c)(1)(A)(iii), and alleged that Davis had “knowingly
discharged a firearm during and in relation to a crime of
violence for which he may be prosecuted in a court of the
United States, namely, the offense of witness intimidation
charged in Count Five of this indictment, and did posses the
firearm in furtherance of such crime.” Davis pleaded not guilty
to all six counts.
Before trial, Davis moved to sever Counts Five and Six from
the first four counts of the superseding indictment. Davis
argued that Counts Five and Six were improperly joined under
Federal Rule of Criminal Procedure 8(a). Alternatively, even if
Counts Five and Six were properly joined, Davis argued that
Counts Five and Six should be severed under Federal Rule of
Criminal Procedure 14(a) because the two counts would be
irrelevant and highly prejudicial to the other four counts. A
magistrate judge denied Davis’s motion to sever, and the
district court judge adopted this ruling over Davis’s renewed
objection.
As the parties were preparing for trial, the government
proposed jury instructions about its burden of proof that
relied—almost verbatim—on section 4.01 of the Pattern
Criminal Jury Instructions of the Seventh Circuit (2012). The
government’s proposed jury instructions relied on this pattern
instruction for all counts in the superseding indictment, and
slightly modified it for each count. For example, the proposed
jury instructions for Count Six stated:
If you find from your consideration of all the evi-
dence that the government proved both of these
No. 12-2769 7
elements beyond a reasonable doubt, then you
should find the defendant guilty.
If, on the other hand, you find from your consideration of
all the evidence that the government failed to prove either
of these elements beyond a reasonable doubt, then you
should find the defendant not guilty.
(Emphases added.)
Davis objected to the use of the word “should” in the last
paragraph of these jury instructions. Instead of saying that the
jury “should” acquit the defendant if the government failed to
prove its case, Davis argued that the instructions should state
that the jury “must” acquit the defendant. The government
disagreed and wanted to use its proposed instructions because
they were based on the pattern instructions. But alternatively,
the government argued that if the district court decided to use
“must” in the second paragraph, it should also replace the
“should” with “must” in the first paragraph. Davis responded
that although the court should use “must” in the second
paragraph, it should still use “should” in the first paragraph
because “[t]he jury always retains the inherent power to chose
not to convict the Defendant.” The district court rejected
Davis’s arguments and ruled that it would use the govern-
ment’s initial proposed instructions that use “should” in both
paragraphs because they were based on the pattern jury
instructions.
The case proceeded to trial. During the trial, Davis renewed
his motion to sever Counts Five and Six, and the district court
denied his motion. Davis also renewed his objection to the use
of the word “should” in the second paragraph of the jury
8 No. 12-2769
instructions about the government’s burden of proof. Appar-
ently reversing its prior ruling, the district court agreed with
Davis this time, and revised its jury instructions by replacing
“should” with “must” in both paragraphs.
The district court also used the following jury instruction
without controversy:
Each count of the indictment charges the defendant
with having committed a separate offense. Each
count and the evidence relating to it should be
considered separately, and a separate verdict should
be returned as to each count. Your verdict of guilty
or not guilty of an offense charged in one count
should not control your decision as to any other
count.
During the jury deliberations, the jury asked the court for
clarification about the distinction between Counts Five and Six,
and the district court directed the jury to review its instructions
again.
On March 16, 2012, the jury convicted Davis of Counts
Two, Three, and Four (three of the bank robbery counts), and
acquitted him of Counts One, Five, and Six (the first bank
robbery count and the witness intimidation counts). On July
20, 2012, the district court sentenced Davis to 36 months in
No. 12-2769 9
prison and 4 years of supervised release.2 Davis filed a timely
notice of appeal.
II.
Discussion
Davis raises three issues on appeal. First, he challenges the
use of “must” in the jury instructions. Second, he argues that
Counts Five and Six were improperly joined to the initial four
counts under Federal Rule of Criminal Procedure 8(a). And
third, if Counts Five and Six were properly joined, he argues
that Counts Five and Six should have been severed under
Federal Rule of Criminal Procedure 14(a).
A. Jury Instructions
Davis argued throughout the trial that the second para-
graph of the jury instructions about the government’s burden
of proof should use the word “must” instead of “should.” But
when the district court agreed, Davis got more than he
bargained for because the court changed the “should” to
“must” in both paragraphs. Davis objected to using “must” in
the first paragraph because “[t]he jury always retains the
inherent power to chose not to convict the Defendant.” He
continues to make this argument on appeal, and argues that
the district court erred by using “must” instead of “should” in
2
Interestingly, Davis spent more time in prison for his bank robbery
conviction in state court than he will for his three bank robbery convictions
in federal court. The Presentence Investigation Report determined that
Davis’s recommended guidelines range was 84–105 months in prison, but
the district court only sentenced Davis to 36 months in prison.
Unsurprisingly, Davis does not challenge his sentence on appeal.
10 No. 12-2769
the first paragraph. We review jury instructions de novo to
determine whether they “‘fairly and accurately summarize the
law,’ and we will reverse only if the instructions, when viewed
in their entirety, so misguided the jury that they led to appel-
lant’s prejudice.” United States v. Quintero, 618 F.3d 746, 753
(7th Cir. 2010) (quoting United States v. Webber, 536 F.3d 584,
599 (7th Cir. 2008)).
We have recognized that “[j]ury nullification is a fact,
because the government cannot appeal an acquittal; it is not a
right, either of the jury or of the defendant.” United States v.
Perez, 86 F.3d 735, 736 (7th Cir. 1996). Although jury nullifica-
tion is “a natural and at times desirable aberration under our
system, it is not to be positively sanctioned by instructions ….”
United States v. Anderson, 716 F.2d 446, 449-50 (7th Cir. 1983).
We have therefore concluded that “explicit instructions
sanctioning such action pose too great a threat to the rule of
law.” Id. at 450.
Davis concedes that he is not entitled to give the jury an
instruction on jury nullification, but nonetheless wants the jury
instructions to reflect the theoretical availability of jury
nullification. Jury instructions, however, are not abstract
treatises on legal issues; they are instead tailored instructions
that state the applicable law in a specific case to aid a jury in
reaching its verdict. See United States v. Hill, 252 F.3d 919, 922-
23 (7th Cir. 2001). We think that it is hardly plausible that a
jury would reach a different verdict based on the use of
“should” or “must” in this context because both words are
imperative when used to instruct a jury on whether to convict
a defendant. Cf. United States v. Kerley, 838 F.2d 932, 940 (7th
No. 12-2769 11
Cir. 1988) (finding no substantive difference between “should”
and “must” for jury instructions that instructed a jury on
whether to acquit a defendant). Therefore, even though the
Seventh Circuit’s pattern jury instructions use the word
“should,” substituting the word “must” in the place of
“should” did not alter the jury instruction to Davis’s prejudice,
and we affirm the district court’s jury instructions.
B. Joinder
Davis also argues that Counts Five and Six were not
properly joined to the initial four counts under Federal Rule of
Criminal Procedure 8(a). Davis objected to the joinder before
trial, and we review a defendant’s preserved claim of misjoin-
der under Rule 8(a) de novo. United States v. Ross, 510 F.3d 702,
710 (7th Cir. 2007). However, misjoinder requires reversal only
if the misjoinder “had substantial and injurious effect or
influence in determining the jury’s verdict.” Id. at 710-11(quoting United States v. Lane, 474 U.S. 438, 449 (1986)) (internal
quotation marks omitted).
Rule 8(a) allows an indictment to include separate counts
“if the offenses charged … 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). We interpret this rule broadly to enhance judicial
efficiency. United States v. Berg, 714 F.3d 490, 494-95 (7th Cir.
2013). Our review is based only on the allegations in the
indictment and we do not examine what happened at trial. Id.;
Ross, 510 F.3d at 710 n.1.
The district court concluded that Counts Five and Six
(about witness intimidation) were part of the “same scheme or
12 No. 12-2769
plan” as the initial four counts (about bank robberies). On
appeal, Davis argues that he had no overriding scheme or plan
that connected the bank robberies with the witness intimida-
tion counts. He specifically notes that the government never
alleged that Davis tampered with other individuals involved
in the case.
But Count Five clearly alleged that the witness intimidation
was designed to “hinder, delay, and prevent communication
of information to a law enforcement officer about the bank
robberies described in Counts One through Four of this
indictment.” Count Six is similarly connected to the first four
counts because it was based on “the offense of witness intimi-
dation charged in Count Five of this indictment.” The super-
seding complaint added these two counts because the govern-
ment alleged that Davis committed four crimes, then engaged
in two additional crimes to try and hide his initial crimes. This
is a single “scheme or plan,” even if Davis just threatened one
witness. See United States v. Warner, 498 F.3d 666, 699 (7th Cir.
2007) (“[A] conspiracy and its cover-up are parts of a common
plan.” (quoting United States v. Velasquez, 772 F.2d 1348, 1354
(7th Cir. 1985)) (internal quotation marks omitted)); see also
United States v. Balzano, 916 F.2d 1273, 1279-80 (7th Cir. 1990)
(ruling that a witness intimidation count was properly joined
with extortion and RICO conspiracy counts). Counts Five and
Six were therefore properly joined to the initial four counts.
C. Severance
Finally, Davis argues that Counts Five and Six, if properly
joined, should have been severed under Federal Rule of
Criminal Procedure 14(a). Even if counts are properly joined
No. 12-2769 13
under Rule 8, Rule 14(a) recognizes that joinder nonetheless
“may prejudice either a defendant or the Government.” Zafiro
v. United States, 506 U.S. 534, 538 (1993). Davis moved for
Counts Five and Six to be severed before trial, and we review
a district court’s denial of a motion to sever under Rule 14(a)
for abuse of discretion. Zafiro, 506 U.S. at 541; Ross, 510 F.3d at
710.
Rule 14(a) states: “If 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). Trying multiple counts before the same jury “can
sometimes be problematic; it runs the risk of producing a
verdict based on bad acts and propensity evidence rather than
on admissible evidence.” Berg, 714 F.3d at 496. Unlike with
Rule 8(a), we look to the trial proceedings, and will reverse a
conviction “only if actual prejudice resulted from the denial of
the severance motion, and such prejudice requires that the
defendant have been deprived of a fair trial, not merely a better
chance at acquittal than an individual trial may have af-
forded.” United States v. Morales, 655 F.3d 608, 624 (7th Cir.
2011) (citations omitted); see also Zafiro, 506 U.S. at 538-39(“Rule 14 does not require severance even if prejudice is
shown; rather, it leaves the tailoring of the relief to be granted,
if any, to the district court’s sound discretion.”).
The district court denied Davis’s motion to sever because
of the “intimate relationship” between the six counts and the
lack of unfair prejudice. On appeal, Davis argues that the
14 No. 12-2769
evidence presented on Counts Five and Six had a spillover
effect that prejudiced the jury’s judgment on the bank robbery
counts. Specifically, he argues that the government introduced
evidence and had witnesses testify about Davis’s allegedly
violent character and his use of firearms. This evidence, he
argues, would not have been introduced into a trial based
solely on the bank robbery counts.
But the jury’s verdicts on each count show no evidence of
prejudicial spillover. The jury acquitted Davis on Count One
(the first bank robbery) and also on Counts Five and Six
(witness intimidation). If the evidence and testimony about
guns and Davis’s allegedly violent character were so prejudi-
cial that they clouded the jury’s judgment, the jury would
likely have convicted Davis of Counts Five and Six. And by
acquitting Davis of the first bank robbery, the jury showed that
it was able to sort through each count individually.
Furthermore, the district court diminished any spillover
prejudice by instructing the jury that “[e]ach count and the
evidence relating to it should be considered separately.” See
Zafiro, 506 U.S. at 539-41 (“When the risk of prejudice is high,
a district court is more likely to determine that separate trials
are necessary, but… less drastic measures, such as limiting
instructions, often will suffice to cure any risk of prejudice … .
‘[J]uries are presumed to follow their instructions.’” (quoting
Richardson v. Marsh, 481 U.S. 200, 211 (1987))); Berg, 714 F.3d at
496 (“Jury instructions can mitigate potential prejudice from
trying multiple charges together … .”); United States v. Pacente,
503 F.2d 543, 548 (7th Cir. 1974) (observing that jury instruc-
tions directing separate consideration of counts are a “mean-
No. 12-2769 15
ingful safeguard” against a prejudicial spillover between
counts). When the jury was in deliberations and became
confused about the distinction between Counts Five and Six, it
asked the court for clarification, which further demonstrates
that the jury was following its instructions and compartmental-
izing the issues in the various counts. The district court
therefore did not abuse its discretion when it denied Davis’s
motion to sever.
III.
Conclusion
The district court properly instructed the jury on how to
convict and acquit the defendant because the difference
between “must” and “should” did not prejudice the defendant
in this context. Additionally, the witness intimidation claims
were properly joined with the bank robbery claims under Rule
8(a) because the indictment alleged that they were part of
Davis’s “scheme or plan” to cover up any evidence of his bank
robberies. Finally, the district court did not abuse its discretion
by declining to sever the witness intimidation counts because
the jury was instructed to compartmentalize the issues in this
case. We therefore AFFIRM Davis’s convictions.