United States Court of Appeals

For the Eighth Circuit

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No. 12-3131

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Michael K. Scott

lllllllllllllllllllll Defendant - Appellant

____________

 Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: April 11, 2013

 Filed: October 22, 2013 

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Before RILEY, Chief Judge, BRIGHT and BENTON, Circuit Judges.

____________

RILEY, Chief Judge.

A jury convicted Michael K. Scott of two counts of bank robbery, in violation

of 18 U.S.C. § 2113(a), (d); two counts of using a firearm during a crime of violence,

in violation of 18 U.S.C. §§ 2 and 924(c); and one count of being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court1

sentenced Scott to concurrent sentences of life imprisonment on each of the

convictions for using a firearm during a crime of violence to be served consecutively

to 115-month concurrent sentences on the remaining three counts. Scott appeals, and

we affirm.

I. BACKGROUND

On February 3, 2010, a grand jury in the Western District of Missouri indicted

Scott on seven counts. Counts one and two (bank robbery and using a firearm during

a crime of violence, respectively) related to the September 2, 2008, robbery of the

Bank Midwest in Kansas City, Missouri. Counts three and four (also bank robbery

and using a firearm during a crime of violence, respectively) related to the June 19,

2009, robbery of the Valley View Bank in Kansas City, Missouri. Counts five and six

(same) related to the January 27, 2010, robbery of the Commerce Bank in Parkville,

Missouri. Count seven charged Scott with being a felon in possession of a firearm.

A. Bank Robberies

The three bank robberies followed the same script. Unfortunately for Scott, that

script ended with a police chase, an arrest, and a life sentence. In each robbery, a

group of masked men burst into a Kansas City-area bank brandishing guns, ordered

everyone in the bank to lie down, and forced a bank employee to open the vault. After

emptying the vault, the men made their getaway in a stolen vehicle. The men returned

to a public location near the bank where a previously parked, non-stolen car awaited

them, ditched the stolen vehicle, and drove off in a car the police would have no

reason to suspect—or so the culprits thought.

1

The Honorable David Gregory Kays and the Honorable Ortrie D. Smith,

United States District Judges for the Western District of Missouri, adopting the reports

and recommendations of the Honorable Robert E. Larsen, Chief Magistrate Judge for

the Western District of Missouri.

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But the robbers repeatedly gave themselves away. In the first robbery, rather

than not mentioning anyone’s name or strictly referring to each other by an alias, one

of the men told the shortest of their bunch “Mike, c’mon. Let’s go.” (Emphasis

added). Michael Scott is 5’4”. Then, Scott and the other robbers abandoned the

stolen vehicle under the eyes of surveillance cameras, which recorded them dropping

off Scott’s Jaguar and driving away in the stolen vehicle shortly before the robbery

and then returning and driving off in the Jaguar shortly after the robbery. As they

sped away, the Jaguar cut-off a driver who was friends with a local police officer. The

driver was suspicious because he observed one of the men in the car changing clothes,

so he noted the Jaguar’s license plate number and called his police officer friend, who

immediately notified the officers investigating the nearby bank robbery. The Jaguar

license plate number check identified Scott. By the end of the day, Scott’s Jaguar was

in FBI custody. In the car, officers found a dark mask containing Scott’s DNA.

Scott went to retrieve his car from the FBI, and while he waited in the lobby

(not in custody) he struck up a conversation with an FBI agent—about bank robberies. 

Explaining he knew about bank robbery because one of his neighbors had robbed

banks, Scott told the FBI agent he “wouldn’t drive his vehicle, his personal vehicle,

a foreign made Jaguar up in front of a bank and go in and rob the bank.” Only a

“youngster” would do that, Scott said. Instead, Scott explained he would “steal a

vehicle” and “drive up to the bank” in that stolen vehicle.

In the second robbery, the men removed their masks as they drove away from

the bank in a stolen van. This allowed a woman standing in the parking lot to see their

faces as they drove by. The woman, Sandra Herdler, told police the van’s license

plate number and later identified Scott as the van’s driver and Claude White, who later

pled guilty to robbing the bank, as the passenger.

In the third robbery, Scott took money containing a tracking device, and local

police immediately were able to follow him. Scott led police on a high-speed chase

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through a residential area, driving through yards, a field, and a fence before coming

to a stop at a terrace embankment. Kansas City, Missouri, police officer Larry White

arrested Scott. In Scott’s vehicle, police found, among other items, bundles of money,

two firearms, and a mask used in the robbery.

B. Motions 

On December 14, 2010, Scott moved to (1) sever the bank robbery counts and

(2) suppress evidence obtained from the search of his Jaguar. The magistrate judge

denied the motion to sever, finding joinder proper under Federal Rule of Criminal

Procedure 8(a), and severance unjustified under Rule 14(a). 

The magistrate judge held a suppression hearing on April 4, 2011. The hearing

centered on the September 2, 2008, search of Scott’s Jaguar. Testimony at the hearing

established that officers went to Scott’s apartment complex on September 2, 2008, and

saw a woman—later identified as Michon Starnes—drive up in a Jaguar. She parked,

got out with three children, and entered the apartment building. With their guns

holstered, FBI Special Agent Leena Ramana and two Kansas City, Missouri, police

officers knocked on the door; Starnes answered. Agent Ramana identified herself and

asked to speak about the Jaguar. Starnes agreed to allow the officers to check the

apartment. Additional officers entered the apartment, conducted a security sweep with

guns drawn, then these officers left the apartment. At that point, all guns were

holstered.

Starnes told Agent Ramana that Scott lived in the apartment, she and Scott were

in an “on again, off again” relationship, and the last time she saw Scott was that

morning at 6:00 a.m. when she walked to work. Starnes reported the Jaguar was

Scott’s, but she then had the only set of keys to the Jaguar, and she was the primary

driver because Scott’s license was suspended. Starnes told Agent Ramana that Scott

left the Jaguar at her workplace earlier that day for her to drive home because it was

raining. Starnes agreed to allow the officers to search the car. Starnes accompanied

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Agent Ramana and three other officers to the Jaguar, signed a written consent, and

opened the Jaguar’s door and trunk. Starnes testified the officers “didn’t force [her]”

to consent and her consent was voluntary: “They asked and I said yes.”

Based on this evidence, the magistrate judge issued a report on October 3, 2011,

recommending denial of Scott’s motion to suppress. Scott objected. On November

7, 2011, the district court overruled Scott’s objections, adopted the magistrate judge’s

report and recommendation, and denied Scott’s motion to suppress. The district court

rejected Scott’s contention that Starnes’s consent was invalid and involuntary, finding

Starnes “had common authority over the Jaguar,” “the law enforcement officers had

reason to believe common authority existed,” and Starnes voluntarily consented.

C. Conviction and Sentence

On January 13, 2012, at the conclusion of a five-day trial, a jury found Scott

guilty of robbing Bank Midwest and Commerce Bank, using a firearm during those

robberies, and being a felon in possession of a firearm (Counts 1, 2, 5, 6, and 7), but

not guilty of robbing and using a firearm while robbing the Valley View Bank (Counts

3 and 4). Both parties agreed the statutory mandatory minimum sentence was

approximately 39 years, but the government sought a life sentence based on Scott’s

criminal history.

On August 30, 2012, after considering “all the factors in fashioning a

punishment,” the district court2

 sentenced Scott to life imprisonment on counts 2 and

6, to be served consecutively to a 115-month prison term—the top end of the United

States Sentencing Guidelines (Guidelines) range—on counts 1, 5, and 7. The district

court explained the sentence was “an upward variance based upon [Scott’s] criminal

history and the need to protect the public.” The district court “struggled” to find the

just punishment, and ultimately found the life sentence justified based on Scott’s long

2

On January 9, 2012, Judge Smith transferred the case to Judge Kays.

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criminal history (beginning with burglary, robbery, and aggravated assault at age 15,

followed by bank robbery at age 19), the need to protect the public, and the nature and

circumstances of the offense. “This is a bank robbery done with guns,” the district

court noted. “I think at least one person fainted or was on the ground in terror,

something of that nature,” the district court continued. Given the risk linked to Scott’s

conduct, the district court observed “the community is fortunate that no one died or

was hurt in a serious way during the course of [Scott’s] actions.” 

II. DISCUSSION

In this appeal, over which we have jurisdiction under 28 U.S.C. § 1291, Scott

challenges the district court’s (1) denial of his motion to sever the charges, (2) denial

of his motion to suppress evidence obtained from a search of his car, and

(3) imposition of life sentences. We reject each challenge in turn.

A. Severance

Whether charges may be joined under Federal Rule of Criminal Procedure 8(a)

is a legal question, which we review de novo. See United States v. Tyndall, 263 F.3d

848, 849 (8th Cir. 2001). A district court’s denial of a motion to sever properly joined

charges under Federal Rule of Criminal Procedure Rule 14(a) is reviewed for abuse

of discretion. See United States v. Young, 701 F.3d 1235, 1238 (8th Cir. 2012). We

“will not reverse unless the defendant shows [any] abuse of discretion result[ed] in

severe prejudice.” United States v. Steele, 550 F.3d 693, 702 (8th Cir. 2008). 

“‘Severe prejudice occurs when a defendant is deprived of an appreciable chance for

an acquittal, a chance that [the defendant] would have had in a severed trial.’” United

States v. Taken Alive, 513 F.3d 899, 902 (8th Cir. 2008) (alteration in original)

(quoting United States v. Koskela, 86 F.3d 122, 126 (8th Cir. 1996)). Our review

leads us to conclude the district court properly denied Scott’s motion to sever.

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First, the joinder of all seven charges against Scott did not violate Rule 8(a).3

The three bank robberies were “of the same or similar character,” the felon in

possession charge was “based on the same act or transaction” as the third bank

robbery, Fed. R. Crim. P. 8(a), and the crimes “occurred over a ‘relatively’ short

period of time.” Tyndall, 263 F.3d at 850. The modus operandi in each of the three

bank robberies was the same, and the last set of crimes (i.e., those relating to the

Commerce Bank robbery) occurred fewer than seventeen months after the first set of

crimes (i.e., those relating to the Bank Midwest robbery). Seventeen months is a

sufficiently short time under Rule 8(a). See United States v. Lindsey, 782 F.2d 116,

117 (8th Cir. 1986) (per curiam); see also, e.g., United States v. Rodgers, 732 F.2d

625, 629-30 (8th Cir. 1984) (finding twenty months was short enough).

Second, joining all charges related to the three bank robberies resulted in no

“appear[ance] [of] prejudice” to Scott. Fed. R. Crim. P. 14(a). The acquittals on

counts three and four speak for themselves: the jury weighed the evidence as to each

count separately, finding some reasonable doubt as to Scott’s complicity in the Valley

View Bank robbery despite otherwise compelling evidence, including Herdler’s

eyewitness identification. The government could have admitted evidence related to

Scott’s modus operandi, which he openly discussed with an FBI agent, in separate

trials. See Fed. R. Evid. 404(b) (permitting “[e]vidence of a crime, wrong, or other

act . . . . [to] prov[e] . . . plan, knowledge, [or] identity.”); United States v. Boyd, 180

F.3d 967, 983 (8th Cir. 1999) (“As the evidence would have been admissible in a

3

Although the indictment joined both offenses and defendants, Scott never

argued, either in the district court or on appeal, joinder was improper under Rule 8(b). 

Cf. United States v. Mann, 701 F.3d 274, 289 (8th Cir. 2012) (“Where an indictment

joins defendants as well as offenses, the propriety of the joinder of offenses is

governed by Rule 8(b), rather than Rule 8(a).”). Any such argument is therefore

waived. See, e.g., United States v. Greene, 513 F.3d 904, 906 (8th Cir. 2008). Even

if Scott had preserved such an argument, he could not show prejudice from any Rule

8(b) misjoinder because he was not tried alongside any other defendant. See, e.g.,

Mann, 701 F.3d at 290.

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separate trial for another crime under Rule 404(b), a joint trial does not result in

additional prejudice.”). Scott has fallen far short of showing the “severe prejudice”

required for reversing the district court’s denial of his motion to sever. Steele, 550

F.3d at 702. 

B. Suppression

“When reviewing a district court’s suppression determination, we review the

court’s factual findings for clear error and its legal conclusions de novo.” United

States v. Quintero, 648 F.3d 660, 665 (8th Cir. 2011). “The voluntariness of a consent

to search is a factual question that is reviewed for clear error.” United States v. Saenz,

474 F.3d 1132, 1136 (8th Cir. 2007). We discern no error in the district court’s

conclusions (1) Starnes “had common authority over the Jaguar,” and (2) Starnes

voluntarily consented to the search.4

1. Common Authority

As a legal matter, “[c]onsent to search, a valid exception to the warrant

requirement, Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973), may be given

either by the suspect or by some other person who has common authority over, or

sufficient relationship to, the item to be searched.” United States v. James, 353 F.3d

606, 613 (8th Cir. 2003) (emphasis added) (citing United States v. Matlock, 415 U.S.

164, 171 (1974)). The district court correctly concluded that the search of the Jaguar

did not violate the Fourth Amendment if Starnes had common authority over the car. 

As a factual matter, the district court did not clearly err in finding Starnes had

common authority over the Jaguar based on “mutual use, joint access, and control.” 

Id. (“Common authority . . . is a question of fact.”). Starnes not only drove the Jaguar,

4

Because we agree with the district court’s analysis, we need not consider the

government’s contention that because the mask was in plain sight the officers did not

need Starnes’s consent.

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but explained to the officers that she was the Jaguar’s only licensed driver (Scott’s

license was suspended). Starnes had the only key to the car, and earlier that day Scott

expressly told Starnes she could drive the car home from work. Even if Scott is

correct that he gave Starnes only narrow permission to drive the car home from work

because it was raining, Starnes described for the officers her control over the car in

broad terms sufficient to give a reasonable appearance of authority. See United States

v. Nichols, 574 F.3d 633, 636 (8th Cir. 2009) (explaining the Fourth Amendment does

not require suppression of the fruits of a search conducted in “reasonabl[e] rel[iance]

on the consent of a third party who demonstrates apparent authority to authorize the

search, even if the third party lacks common authority”). 

2. Consent

Given that Starnes testified she freely “said yes” and unlocked the car herself,

the district court did not err in finding her consent voluntary. Scott’s argument to the

contrary relies entirely on the number of officers present and the fact that some of the

officers had their guns drawn when those officers secured the apartment premises. 

This reliance is doubly misplaced. 

First, the district court reasonably refused to credit Starnes’s testimony that

there were “ten to fifteen law enforcement officers.” Second, the evidence shows that

at the time Starnes consented to the search, only a few officers were present, all with

their guns holstered. The security sweep of the apartment, conducted by officers with

guns drawn, was an understandable security measure considering the perpetrators of

the Bank Midwest robbery were heavily armed. The security sweep ended before

Agent Ramana interviewed Starnes and asked for her consent to search the Jaguar. 

The district court’s finding that Starnes voluntarily consented was amply justified by

the evidence. See Quintero, 648 F.3d at 667; United States v. Kelley, 594 F.3d 1010,

1013 (8th Cir. 2010).

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C. Sentence

We review a district court’s sentencing decision for abuse of discretion. See,

e.g., United States v. Washington, 515 F.3d 861, 865 (8th Cir. 2008). We begin by

“ensur[ing] that the district court committed no significant procedural error.” Gall v.

United States, 552 U.S. 38, 51 (2007). Once assured the sentence is “procedurally

sound,” we “consider the substantive reasonableness of the sentence imposed under

an abuse-of-discretion standard[,] . . . . tak[ing] into account the totality of the

circumstances.” Id. Consistent with Gall, we defer to the district court’s conclusion

that Scott deserved two life sentences because the district court (1) carefully

considered the § 3553(a) factors, and (2) imposed a substantively reasonable sentence. 

First, the district court committed no significant procedural error. Scott admits

the district court correctly calculated Scott’s advisory Guidelines range and “relied on

the [§ 3553(a)] factors.” Scott argues the district court erroneously believed “at least

one person [in the bank robbery] fainted or was on the ground in terror, something of

that nature.” It is true there is no evidence anyone fainted, but Scott ignores the

critical “or” in the district court’s statement. The record shows several individuals

were “on the ground in terror” and were deeply traumatized by the experience. The

district court did not base the sentence on “clearly erroneous facts.” Id. 

Neither did the district court fail to explain adequately its reasons for varying

upward. The district court explained the sentence was “an upward variance based

upon [Scott’s] criminal history and the need to protect the public.” The district court

noted Scott had “spent a lot of [his] life in prison,” but “prison hasn’t had much of a

rehabilitative effect upon [Scott], [who] continue[d] to commit crimes involving guns

subsequent to [his] release.” By “locking Michael Scott up,” the district court said,

“we know there’s not going to be any more bank robberies, at least at his hands, and

we won’t have to worry about [Scott] possessing a gun.” 

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Second, the sentence was substantively reasonable. Viewed with “due

deference” to the district court’s careful consideration of the § 3553(a) factors, the

record amply shows life sentences were justified for the reasons described by the

district court. Id. at 51-52. Scott’s sole argument to the contrary centers on his age:

56 at the time of sentencing. A defendant’s “advanced age” is a possible, but not

mandatory, basis for granting a downward variance. See United States v. Chase, 560

F.3d 828, 831 (8th Cir. 2009). “Advanced age,” under some circumstances, could

itself be a basis for an upward variance. The record shows the district court carefully

considered all § 3553(a) factors, “struggled” to find a “just punishment,” “considered

the arguments of the counsel involved in the case,” and determined a life sentence was

appropriate given Scott’s extensive criminal history and the need to protect the public. 

It does not matter whether we might think a lesser sentence more justified

because even the statutory minimum sentence would keep Scott in federal prison past

the age of ninety.5

 The Supreme Court has instructed us that the mere “fact that the

5

Geriatric prisoners place a heavy financial strain on the prison system. See,

e.g., Ashby Jones & Joanna Chung, Care for Aging Inmates Puts Strain on Prisons,

Wall St. J., Jan. 27, 2012, at A2 (reporting on the high health-related costs associated

with America’s rapidly aging prison population, although noting taxpayers will pay

for these health costs whether the individual is in or out of prison). Although violent

crime rates decrease with age, the young do not have a monopoly on violence. See,

e.g., Catherine F. Lewis et al., A Study of Geriatric Forensic Evaluees: Who Are the

Violent Elderly?, 34 J. Am. Acad. Psychiatry L. 324 (2006).

Of course, the wisdom of incarcerating elderly offenders as a categorical policy

matter is for Congress, not us, to decide. “[T]he relevant policy considerations do not

invariably point in one direction, and there is vehement disagreement over the validity

of the assumptions underlying many of them. The very difficulty of these policy

considerations, and Congress’ superior institutional competence to pursue this debate,

suggest that legislative not judicial solutions are preferable.” Patsy v. Bd. of Regents

of Fla., 457 U.S. 496, 513 (1982) (footnote omitted). Thus, while encouraging

sentencing courts to consider a defendant’s age, we defer to each sentencing court’s

case-by-case judgment on whether a particular defendant’s age justifies a lesser or

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appellate court might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S. at

51 (emphasis added). Consistent with our limited appellate role in sentencing, we

conclude the sentence was substantively reasonable. See, e.g., United States v. Stults,

575 F.3d 834, 849 (8th Cir. 2009) (“Where [a] district court in imposing a sentence

makes ‘an individualized assessment based on the facts presented,’ addressing the

defendant’s proffered information in its consideration of the § 3553(a) factors, such

sentence is not unreasonable.” (quoting Gall, 552 U.S. at 50)). 

III. CONCLUSION

We affirm.

BRIGHT, Circuit Judge, dissenting.

I concur with the majority’s decisions concerning severance and the evidentiary

ruling, but I respectfully dissent as to the sentencing issue. 

The sentence of 115 months in prison plus two life sentences imposed on

Michael Scott by the district court represents a prime example of what may be called

“gilding the lily.” It is unreasonable and excessive. For all practical purposes, the

roughly 39-year mandatory minimum sentence in this case—for a defendant who is

56 at the time of sentencing—would have itself amounted to a sentence of life

imprisonment. I ask what more is required. The sentence in this case is unreasonable

and simply represents an effort to send a message of being tough on crime. But that’s

not the purpose of a sentence. 

Prior to the enactment of the Sentencing Guidelines, one of America’s great

jurists, Judge Edward Devitt of the District of Minnesota, observed that “[a] short

greater sentence. See United States v. White, 506 F.3d 635, 644 (8th Cir. 2007).

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sentence will most likely accomplish the same objective. It is primarily the fact of

incarceration, not the length of it, which best serves the ends of justice.” Hon. Edward

J. Devitt, The Ten Commandments for the New Judge, 47 A.B.A. J. 1175, 1177 (Dec.

1961). Although the Guidelines do not reflect this principle, I believe it is still

important and should apply in cases such as this.

As an appellate judge, I add another observation. The federal courts are now

entering a new era of sentencing. Eric H. Holder, Jr., the United States Attorney

General, has recently called for a new approach to criminal sentencing in the federal

courts. The Attorney General emphasized the harsh reality that, as it stands today,

“our system is in too many respects broken.” Eric Holder, Attorney General of the

United States, United States Department of Justice, Remarks at the Annual Meeting

of the American Bar Association’s House of Delegates (Aug. 12, 2013), available at

http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html. Indeed, I

agree with the Attorney General that “too many Americans go to too many prisons 

for far too long, and for no truly good law enforcement reason.” Id. 

The clearly excessive sentence imposed in this case illustrates very graphically

the broken criminal justice system in the federal courts. Here, had Scott received a

39-year sentence—which the parties agreed was the mandatory minimum sentence in

this case—he would be in prison until he was 95 years old. Yet the district court felt

the need to impose a 115-month sentence followed by two life sentences. The district

court justified the sentence by emphasizing Scott’s “criminal history and the need to

protect the public.” But just how much protection does the public need from a 95-

year-old man—assuming Scott were to live that long? According to the National Vital

Statistics Reports, at the time he was sentenced, Scott was expected to live for another

27 years, or until he is about 83 years old. See Sherry L. Murphy et al., National

Center for Health Statistics, National Vital Statistics Reports, Vol. 61, No. 4, at 30

(May 8, 2013), available at http://www.cdc.gov/nchs/data/nvsr/nvsr61/

nvsr61_04.pdf. A 39-year sentence would have been more than enough to serve as

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a deterrent and an appropriate punishment for a series of bank robberies, during which

no one fired a gun and no one was physically injured. But instead, the district court

imposed a substantially unreasonable sentence that is greater than necessary to

accomplish the goals of sentencing. See 18 U.S.C. § 3553(a). This sentence is not

justified and is improper and I will not affirm a sentence that is obviously too harsh

and imposed simply to appear tough on crime. 

I would reverse and remand this case with instruction to the district court to

impose a sentence no greater than a 39-year sentence.

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