2014 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2014/4271 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 2546

___________ UNITED STATES OF AMERICA

v. TRISTAN GREEN, Appellant

_______________________ On Appeal from the District Court for the Middle District of Pennsylvania D.C. Criminal No. 1

- 12

- cr - 00009

- 003 (Honorable Christopher C. Conner)

______________ Submitted Pursuant to Third Circuit LAR 34.1(a)

January 10, 2014 Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges

(Filed: April 22, 2014 )

_________ ________ OPINION OF THE COURT

_________________ SCIRICA , Circuit Judge Defendant Tristan Green was convicted of three counts of armed bank robbery, i n violation of 18 U.S.C. § 2113(a) and (d), and three counts of using a firearm during a crime of violen ce, in violation of 18 U.S.C. § 924(c)( 1)(A), in connection with three bank
robberies that took place in September, November, a nd December of 2007. He appeals2

the District Court’s denial of his motion to sever the counts for separate trial s under Federal Rules of Criminal Procedure 8 and 14. Because joinder was proper under Rule 8(b) and not prejudicial under Rule 14(a), we will affirm.
I. On August 29, 2012, a grand jury in the Middle District of Pennsylvania returned

a twelve

- count indictment charging Green with three counts of armed bank robbery and three counts of using a firearm during the robberies. 1 Each robbery occurred in a s imilar fashion: Green and co

- defendant Nijul Alexander would enter the bank with their faces obscured, point guns at bank employees , demand money, and flee in a car driven by

a nother co - defendant

. The getaway car would drive Green and Alexander to a second vehicle, and the two would switch cars to avoid police detection

. 2
T he September robbery at a Heritage Valley Cre dit Un ion in York , Pennsylvania , went off without incident, but the November r obbery, which took place at a nother bank in York , did not go as smoothly. While the defendants were fleein g in the getaway car, dye
p ack et s exploded onto the stolen cash

. Green and A lexander thr e w backpacks containing the stained money out of the vehicle , and police later identified those backpacks as ones purchased by Green and co

- defendant Jamael Stubbs at a nearby Walmart . The December robbery at a Sovereign Bank in Harrisburg fol lowed the same pattern as the

1 This indictment superseded the original indictment, which charged Green only with offenses relating to the November robbery. Green was not named as a defendant for the other six charges in t he superseding indictment

.

2 In the first and third robberies, Jami Shabazz drove the getaway car. In the second robbery, Jamael Stubbs drove the getaway car and Shabazz waited in the other vehicle.3

first two , except that Alexander carried a bag he claimed contained a bomb in addition to his gun . Police later discovered t he bag only contained bricks

. After Green pled not guilty to all six c ounts , he filed a motion to se ver the charges under Federal Rules of Criminal Procedure 8 and 14 , seeking three separate trials

. The
District Court denied the motion because it found the jury would be able to compartmentalize the evidence against Green , as the facts underlying the six c ount s were “relatively straightforward and discrete.” Order at 2, United States v. Green , 1:12

- cr 0009 (M.D. Pa. Dec. 17, 2012 ) (quoting United States v. Walker , 657 F.3d 160, 170 (3d Cir. 2011) ). At trial, t he jury found Green guilty o n all six counts

. 3 T he District Court sentenced him to 1,030 months in prison on May 29, 2013 , and G reen filed a timely notice of appeal the next day

. 4
II. Green argues the six counts against him were improperly joined under Rule 8 and, even if joinder were proper, the counts sh ould have been severed for separate trials under Rule 14(a). He contends joinder was improper under Rule 8 because the September, November, and December incidents were independent of one another

. Even i f the count s were properly joined, he claim s consolidat ing them in a single trial prejudice d him under Rule 14(a), thus requiring the District Court to order “ separate trials of counts . . . or provide any other relief that justice requires .”

3 Green and Stubbs proceeded to trial jointly , while Alexander and Shabazz pled guilty. Stubbs was also found guilty and is appealing his conviction (No. 13

- 2638).

4 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. G reen has two other appeals pend ing before this Court (Nos. 13

- 2056 and 13

- 2558), though neither concerns the conviction in this case.4 A. In evaluating whether joinder was proper under Rule 8, we first consider wh ich subsection applies : (a) , which governs joinder of offenses, or (b) , which governs joinder of defendants

. “Although the standards of Rule 8(a) and Rule 8(b) are similar, in that they both require a ‘ transactional nexus ’ between t he offenses or defendants to be joined, Rule 8(a) is more permissive than Rule 8(b) because Rule 8(a) allows joinder on an additional ground, i.e., when the offenses ‘are of the same or similar character.’” United States v. Irizarry , 341 F.3d 273, 287 n.4 (3d Cir. 2003) (quoting Fed. R. Crim. P. 8(a)). This case is unique because , although it involves multiple defendants , Green is only challenging the joinder of offenses.
I n multi

- defendant cases, we h ave held “ t he test s for joinder of counts and
defenda nts is merged in Rule 8(b)

. ” Id. at 287 (quoting United States v. Somers, 496 F.2d 723, 729 n.8 (3d Cir. 1974))

. But w e have expressed dicta to the contrary when , as in this

case, a defendant in a multi

- defendant case challenges only the joinder of offens es. See United States v. Eufrasio , 935 F.2d 553, 570 n.20 (3d Cir. 1991) ( “ [C] ontrary to the jurisprudence in other circuits, when a joinder of offenses charged against the same defendant is challenged, the literal meaning of the Ru le requires application of Rule 8(a) , irrespective of whether multiple defendants are involved in the case.” ). The Eufrasio panel d eclined to resolve th is issue because joinder was proper under the “less permissive” standard of Rule 8(b)

— and thus would have been proper under Ru l e 8(a) as well

. Id. at 570 ; see also United States v. McGill , 964 F.2d 222, 241 (3d Cir. 1992) ( declining to decide whether Rule 8(a) should apply a fter finding joinder proper under the5

“stricter” standard of Rule 8(b) ). Th us , as in Eufrasio and McGill , w e nee d not re visit our holding that Rule 8(b) governs in multi

- defendant cases . Because joinder in this case

s atisfies the stricter standard of Rule 8(b) , it necessarily meets the more permissive standard of Rule 8(a)

. We review the District Court’s den ial of joinder de novo and confine our inquiry solely to the allegations in the indictment , not upon evidence subsequently introduced at trial

. Walker , 657 F.3d at 1 68

. To satisfy R ule 8(b) , “[i]t is not enough that defendants
are involved in offenses of the same or similar character; there must exist a transactional nexus in that the defendants must have participated in ‘the same act or transaction, or in
the same series of acts or transactions. ’ ” United States v. Jimenez , 513 F.3d 62, 82

– 83 (3d Cir. 20 08) (quoting Fed. R. Crim. P. 8(b)). 5
Green first contends joinder was improper because the government did not file a substantive count of conspiracy against him and his co - defendants

. Green correctly notes the existence of a formal conspiracy count typi cally satisfies the Rule 8(b) standard. Se e Somers , 496 F.2d at 730 (“ [P] rovided that the conspiracy charge is put forward in good faith, the [ argument against joinder ] will survive attac k under Rule 8(b).”)

. W hile the government did not bring a formal c onspiracy charge , the six counts in the indictment applicable to Green allege the defendants are liable individually and as c o - conspirator s under Pinkerton v. United States , 328 U.S. 640 (1946)

. ( App. 11

– 16 .) Thus, the

5 Rule 8(b) provides in full : “The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act o r transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.”6

Pinkerton liability theory set fort h in the indictment certainly suggests a transactional

nexus linking the defendants in this string of bank robberies.
Green also argues the counts should not have been joined because the three incident s occurred at different times and by different means

. Gree n, however, takes too

narrow a view of the Rule 8(b) standard

. The approximate mont h

- long time period between each robbery does not militate against joinder, as we have previously noted charges separated by “a period of a little over a month . . . su ggests that the various charges were part of the same series of transactions.” Walker , 657 F.3d at 170. Furthermore, the circumstances underlying the three incidents indicate they were part of a common scheme on the part of Green and his co

- defendants

. T he indictment alleges the three armed robberies were perpetrated by the same defendants in a similarly violent
nature and took place in the same area of the state. Accordingly, the six counts constitute

“ the same series of acts or transactions ” among the defendants and were thus properly joined under Rule 8(b). 6
B. Rule 14(a) allows for the severance of properly joined offenses if a consolidated trial “ appears to prejudi ce a defendant.” 7 We review the District Court’s denial of

6 Green argues at length t hat joinder is inappropriate because the surveillance tapes showing he and Stubbs purchased the backpacks used in the November robbery would be inadmissible on the charges stemming from the September and December robberies. Because this argument relies o n evidence subsequently introduced at trial, it is outside the scope of our Rule 8(b) inquiry. See Walker , 657 F.3d at 168 (confining the joinder inquiry to allegations set forth in the indictment).

7 Rule 14(a) provides in full: “ If the joinder of offe nses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or7

Green’s severance motion for abuse of discretion. Walker , 657 F.3d at 170. To prevail on a severance claim, a defendant must “pinpoint clear and substantial prejudic e resulting in an unfair trial. ” Id. (quoting United States v. McGlory , 968 F.2d 309, 340 (3d Cir. 1992 ) )

. This requires more than showing “ severance wou ld have increased the defendant’ s chances of acquittal.” McGlory , 968 F.2d at 3 40

. Rather, “ the question of prejudice hinges upon ‘ whether the jury will be able to compartmentalize the evidence as it relates to se parate defendants in view of its volume and limited admissibility. ’” Walker , 657 F.3d at 170 (quoting United States v. Davis , 397 F. 3d 173 , 182 (3d Cir. 2005 ) ). Because juries are presumed to follow instructions , jury instructions

are “persuasive evidenc e that refusals to sever did no t prejudice the defendant [] .” Id. at 171 (citing United States v. Lore , 430 F.3d 190, 206 (3d Cir. 2005))

. Green argue s joinder was prejudicial because it allowed the government to combine its strongest evidentiary case ( th e November robbery ) w ith its weaker cases ( the September and December robberies )

. At trial, co - defendants Alexander and Shab az z implicated Green in all three of the robberies

. But w hile t he ir testimony on Green’s role
in t he November robbery was corrobor ated by surveillance video of Green and Stubbs buying the backpacks thrown from the getaway car , the re was no similar corroborating evidence for the September and December incidents . In Green’s view, the corroboration
of the ir testimony on the November ro bbery made their uncorroborated testimony on the September and December robberies more credible to the jury

. Even assuming this to be the case , Green’s argument does no more than show the government, the court may order separate trials of counts, sever the defendants ’ trials, or provide any other relief that justice requ ires. ”8

“severance would have increased [his] chances of acquittal,” which is n ot su fficient to meet Rule 14(a)’s prejudice standard. McGlory , 968 F.2d at 3 40. Because the proper inquiry is whether the jury would be able to compartmentalize the evidence offered against Green , the D istrict C ourt did not abuse its discretion in denyi ng his motion to

seve r the c ount s . In this case, t he six counts against Green were quite discrete

— for each of the three incidents , he was charged with one count of bank robbery and one count of using a firearm during the robbery. Thus, t he jury could eas ily compartmentalize the evidence o n each respective c ount by considering each incident separately. See Walker , 657 F.3d at 170 (finding joinder non

- prejudicial when the case “ featured charges arising from only three distinct episodes of criminal conduct ” ). Moreover, t he D istrict C ourt instructed the jury o n its duty to consider each count independently

. T he c ourt cautioned: “You must separately consider the evidence that relates to each offense and you must return a separate verdict for each offense. .

. . Your decision on one offense, whether guilty or not guilty, should not influence your decision on any of the other offenses charged.” (App. 519

. ) And as a n additional reminder: “Each offense should be considered separately.” ( Id. ) These limiting i nstructions are “persuasive evidence ” that joinder did not prejudice Green. W alker , 657 F.3d at 171 (affirmi ng the denial of a Rule 14(a) motion whe n the court instructed the jury “ [e]ach offense and each defendant must be considered separately” and a “de cision on any one defendant or any one offense, whether guilty or not guilty, should not influence your decision on any other defendant or any other offense” ). In short, b ecause t he jury c ould9

compartmentalize the evidence supporting each count and the Di strict Court gave proper limiting instructions to this effect, t he c ourt did not abuse its discretion in den ying Green’s Rule 14(a) motion.
III. For the foregoing reasons, we see no error in the District Court’s denial of Green ’s motion to sever the offen ses. We will affirm the judgment of conviction and sentence.