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US v. Jeffery Carter et al, No. 11-3608.

KANNE, Circuit Judge. As Darrick and Geraldine Anderson were returning home from a birthday party, two men—Jeffery Carter and Kentrell Willis—appeared and robbed the couple at gunpoint. Carter and Willis made off with the couple’s vehicle and their belongings, but, unbeknownst to them, one of the cell phones taken from the Andersons was enabled with a GPS tracking feature. As a result, police were easily able to monitor their movements and track them down that same night.

Carter and Willis were arrested and, in a joint trial with separate juries for each defendant, convicted of carjacking, using a firearm during the carjacking, and being a felon in possession of a firearm.

Joinder of Offenses

Carter and Willis next that their respective felon-in-possession counts (Count Three as to Willis and
Count Four as to Carter) should not have been tried together with their counts relating to the carjacking. They argue that joinder was improper under both Rules 8 and 14 of the Federal Rules of Criminal Procedure, and we address each argument separately.

1. Misjoinder

The defendants claim that their felon-in-possession counts were improperly joined under Rule 8(b) of the Federal Rules of Criminal Procedure because they bear no relation to the other counts of the indictment. “We review claims of misjoinder de novo based on the allegations on the face of the indictment, not the proofs at trial.” United States v. Hosseini, 679 F.3d 544, 552 (7th Cir. 2012). 

The indictment’s allegations clearly indicate that the felon-in-possession counts are logically related to, and are part of the same series of acts as, the carjacking counts. The felon-in-possession counts allege that Willis
and Carter, respectively, possessed the same Ruger pistol as that used to commit the carjacking, within one day of the carjacking.

It would be a waste of judicial resources to conduct a separate trial for the felon-in possession counts when the same key evidentiary issue would be identical—the use and possession of the Ruger pistol on or about the time of the carjacking by each defendant.

Moreover, the cases on which the defendants rely to argue that joinder was improper are materially different because none involved the same firearm or a close temporal connection. E.g., United States v. Hawkins, 589 F.3d
694, 703-04 (4th Cir. 2009).  Joinder of the offenses was proper.

2. Prejudicial Joinder

Finally, the defendants argue that even if joinder was proper under Rule 8, the district court should have severed the felon-in-possession counts under Rule 14 to avoid prejudice. See United States v. Lanas, 324 F.3d
894, 900 (7th Cir. 2003). 

We review the district court’s denial of severance under Rule 14 only for an abuse of discretion. United States v. Del Valle, 674 F.3d 696, 704 (7th Cir. 2012). We have described the Rule 14 standard as “exacting,” apart from the deferential standard of review, because it is not enough for a defendant to show “that separate trials may have provided him a better opportunity for
an acquittal.” United States v. Calabrese, 572 F.3d 362, 368
(7th Cir. 2009). 

Rather, a defendant “must be able to show that the denial of severance
caused him actual prejudice in that it prevented him from receiving a fair trial.” Id.  Even if the defendants can show prejudice, that alone may not necessarily suffice for them to prevail; limiting instructions will often cure any risk of prejudice, and tailoring relief from prejudice is within the district court’s discretion. Warner, 498 F.3d at 700.

Carter and Willis contend that they suffered prejudice
for two related reasons.

First, the felon-in-possession counts necessarily introduced evidence that each defendant had prior felony convictions. Each defendant stipulated that he had been convicted of a previous felony, and the jury heard no evidence concerning the nature of the prior felony or any factual details of the crime. Nonetheless, the defendants maintain that knowledge of their status as felons increased the risk that the jury reached its verdict because the defendants
are “bad people,” rather than on the basis of the evidence at trial.

Second, the government used evidence of the uncharged robbery of Jose Garcia in order to prove the felon-in-possession counts. The defendants
argue that this evidence necessarily prejudiced the jury as to the remaining counts because the government was able to point to another robbery they committed that same night—inviting the jury to convict based on the defendants’ propensity for crime.

Although the defendants highlight legitimate concerns, we nevertheless
find that the district court did not abuse its discretion.

First, the evidence relating to the carjacking was overwhelming as to both Carter and Willis, so we are confident that the jury’s verdict was not based on the defendants’ status as felons or their propensity for armed robbery. See United States v. Ross, 510 F.3d 702, 711 (7th Cir. 2007). 

The evidence proving the carjacking was straightforward. The jury heard testimony that the defendants robbed the Andersons at gunpoint, and then escaped in the Andersons’ stolen vehicle. Darrick identified Willis in a lineup, and Geraldine identified both defendants in court. The defendants’  movements from the time of the carjacking through their arrest  were tracked by GPS, thanks to Geraldine’s stolen cell phone—which Carter also used to call his mother in between robberies.

Their movements were also verified through a number of red-light cameras
along their route, and video surveillance footage taken both from the gas station where they first entered Chew’s van, as well as from the gas station where the defendants were eventually arrested. And the evidence was particularly overwhelming as to Carter, whoconfessed as to his involvement in the carjacking prior to trial. 

Moreover, the defendants ignore the fact that the evidence of Garcia’s robbery was admitted not only for the felon-in-possession counts, but also as circumstantial evidence of the defendants’ possession of the Ruger pistol for the remaining counts of the indictment. As we have already discussed, the defendants contested whether the Ruger pistol was the same firearm used to
commit the carjacking. The use of that firearm during Garcia’s robbery, roughly an hour after the carjacking, is strong circumstantial evidence of the defendants’ use and possession of the Ruger pistol earlier that night.

Accordingly, the district court admitted evidence of Garcia’s robbery as to all four counts of the indictment under Federal Rules of Evidence 404(b).  The defendants cannot demonstrate prejudice because “evidence on the severed counts would be admissible in the trial of the remaining counts.” United States v. Quilling, 261 F.3d 707, 715 (7th Cir. 2001).

Finally, any prejudice the defendants may have suffered was properly mitigated by the district court’s limiting instructions. For example, the jury was instructed to consider each defendant’s felon status only for purposes of the felon-in-possession counts, and not for any other purpose. We must presume that the jury followed these instructions. Ross, 510 F.3d at
711. Given the overwhelming evidence and the district court’s limiting instructions, we find that the defendants suffered no prejudice.


For the foregoing reasons, we AFFIRM the conviction of both Carter and Willis.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

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