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Full Opinion
Affirmed in part, vacated in part, and remanded by published opinion. Judge AGEE wrote the opinion, in which Judge DAVIS joined. Judge MOTZ wrote an opinion concurring in the judgment.
Collin Hawkins was indicted on separate counts related to a carjacking and a subsequent arrest as a felon in possession of a firearm. Prior to trial, Hawkins timely moved the court to sever the carjacking counts from the felon in possession charge on the grounds of improper joinder. The district court denied the motion and Hawkins was found guilty by a jury on all counts. For the reasons that follow, we affirm the judgment of the district court, in part, and vacate the judgment, in part.
I.
Reuben King (âKingâ) testified that on the evening of November 22, 2006, he was employed as a driver for Sedan Service in Baltimore, Maryland. That night, King received a phone call from a regular customer he knew as Warren, asking to be picked up at an apartment complex parking lot. When King arrived three persons entered his cab: Warren, the appellant Hawkins, and an unidentified female. At trial, King testified that he instantly recognized Hawkins, who sat next to him on the cabâs front seat, from casual contact in the neighborhood over many years.
Warren instructed King that he needed to make three stops that night. During the first two stops, King explained that Warren got out of the car, talked to unidentified individuals for roughly ten to fifteen minutes, returned to the car, and then told King the intersection for the next stop. During the last stop, both Warren and Hawkins got out of the car for about ten or fifteen minutes, and then returned. Warren then instructed King to return to the apartment complex parking lot.
Once back in the parking lot King turned on the overhead dome light to calculate the fare and saw Hawkins holding a .357 caliber revolver only a few inches from his head, while Warren held a shotgun positioned to the back of Kingâs head. According to King, Warren stated that if King moved, Warren would shoot him. King claimed that Hawkins then took two cell phones and roughly $400 in cash from him, and pushed King out of the driverâs side door. Hawkins then pushed King in the direction of the trunk, during which time Hawkins emptied the remainder of Kingâs pockets while Warren kept the shotgun pointed at King. Once they reached the trunk area, King testified that Hawkins told King to kneel down and keep his hands up. According to King, after he complied with the instruction, Hawkins then stated, âIâm not going to shoot you âcause I know you.â J.A. 108.
King claimed he then heard footsteps going toward the car, the car doors closing, and the car pulling off. King testified that he then ran until he found police officers to whom he reported the carjacking.
Shortly thereafter, King gave information about the carjacking to detectives and told them that Hawkins was involved. When shown a photo array King identified Hawkins as one of the perpetrators.
On December 9, 2006, Baltimore City police officers were investigating an unrelated incident in the same area of Baltimore, which they had reason to believe involved Hawkins. Acting on information that Hawkins would be arriving at a convenience store officers watched Hawkins
Officers entered the store and ordered Hawkins to the ground, but he refused to comply and started to slide his right hand up under his waistband. This caused officers to order Hawkins to keep his hands where they could be seen, but Hawkins refused to comply until he was physically subdued. A .9 millimeter pistol was retrieved from Hawkinsâ waistband when he was arrested.
On March 7, 2007, a federal grand jury in the District of Maryland indicted Hawkins on four counts. Count I alleged a carjacking based on the robbery of Kingâs vehicle, in violation of 18 U.S.C. § 2119 (2000). Count II alleged that Hawkins âdid knowingly possess and brandish a firearm in furtherance of a crime of violence,â the carjacking, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). J.A. 7. Count III alleged that Hawkins, âhaving been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly and unlawfully possess a loaded firearm, to wit: a Bersa model Thunder 9 mm pistolâ in violation of 18 U.S.C. § 922(g)(1), the gun seized when he was arrested. J.A. 8. Count IV alleged another felon in possession of a firearm charge, relating to a shotgun seized during a search of Hawkinsâ residence.
Prior to trial, Hawkins moved to sever Counts I and II (collectively the âcarjacking countsâ) from Counts III and IV. Hawkins contended that Counts III and IV were improperly joined to Counts I and II under Federal Rule of Criminal Procedure 8(a). J.A. 10. In the alternative, Hawkins argued severance was appropriate under Rule 14 because he âwould be significantly prejudiced by a single trialâ because âthe jury may well conclude that Hawkins is guilty of one firearm count and then find him guilty of the others because of his criminal disposition.â J.A. 13. The district court denied Hawkinsâ motion because it could âdiscern no reason why a jury will not be able fairly and objectively to evaluate the evidence.â
The Government elected not to proceed on Count IV and trial was held only on Counts I, II, and III. Hawkins pled not guilty to all three counts. However, as to Count III, Hawkins conceded his prior felony conviction and his possession of the .9 millimeter handgun at the time of his arrest both to the court prior to opening statements and again to the jury during opening statements.
During the trial, the Government introduced portions of a transcript and tape recording from Hawkinsâ post arrest interview for possession of the .9 millimeter pistol at issue in Count III. However, the transcript and tape recording also contained two additional admissions Hawkins asked be redacted before publication to the jury.
First, Hawkins admitted during the interview that he supported himself by gambling and selling drugs. Hawkins objected to the admission of this statement based on lack of relevance to any contested issue in the case because he had, in effect, con
COURT: It makes it more likely, assuming Warren is selling drugs, assuming that somebody known to Mr. King as Warren was actually in that vehicle on November 22nd and went to east Baltimore and made these three stops that have been described, assuming all of that, then as you yourself have suggested to the jury, it tends to suggest that Warren is a drug dealer.
DEFENSE COUNSEL: But Your Honorâ
COURT: Just let me finish. And so if, in fact, some guy with Warren on November 22, 2006, got in Mr. Kingâs vehicle and went to these three stops and came back to the parking lot, then that makes it more likely that the person who did that was also a drug dealer. I mean it ties it up. Itâs not irrelevant. Itâs not irrelevant. The question of whether Mr. Hawkins was in that vehicle on November 22nd, 2006, is made more likely true, his presence in the vehicle is more likely true if heâs a drug dealer.
J.A. 223. The district court then stated, âThe fact that Mr. Hawkins is willing to admit that he sells drugs is clearly relevant to the charges in Counts One and Two. Clearly. Unmistakably.â J.A. 224. Furthermore, the district court determined that the probative value of Hawkinsâ statement substantially outweighed any undue prejudice:
COURT: I donât see any prejudice in having the jury know from Mr. Hawkinsâs interview that he sells drugs in east Baltimore. The relevance of that admission is extraordinary.... Its relevance is manifest, and its probative value is significant because, as I just said, Mr. Hawkins, even by his not guilty plea, actually denies being in the car on November 22nd. And his admission that heâs a drug dealer, coupled with the evidence that whoever was in the car probably was or certainly could have been a drug dealer, really ties him to the car in a way that no other evidence in this case does.
J.A. 225. Additionally, the e'ourt found that even under Rule 404(b), the statement was admissible because it was evidence of Hawkinsâ identity as one of the persons in the car with Warren.
Second, Hawkins objected to the admission of his separate statement during the interview that he stole the .9 millimeter pistol found on him when arrested from his cousin: âIf this is about the gun, itâs not my gun, itâs my buddyâs gun. He doesnât know I have it and the bullets that are in it are mine. I took my buddyâs bullets out.â J.A. 219. Hawkins argued that the statement was irrelevant because, he had conceded that he possessed the gun. Additionally, Hawkins contended that the statement was unduly prejudicial and evidence of other crimes to prove Hawkinsâs conformity therewith in violation of Rule 404(b). The district court disagreed:
COURT: This is very interesting because it clearly suggests that if heâs willing to steal his cousinâs gun, heâs willing to steal anything from anybody. If heâs willing to steal his cousinâs gun, why wouldnât he be willing to steal money? His cousinâs gun, why wouldnât be he be willing [to] steal a car or cash or cell phones from some guy he just knows casually from the neighborhood?
DEFENSE COUNSEL: Thatâs exactly why we think itâs not admissible, Your Honor. Youâre sort of making my point. If heâs willing to steal from his cousin, youâre telling the jury, look, what a bad guy he is.
J.A. 230. The district court denied Hawkinsâ motion to redact the statement from the interview transcript or withhold that part of the recording from the jury.
Hawkinsâ counsel actively cross-examined King and elicited various inconsistencies from his testimony on direct examination.
During closing argument, counsel for the Government mentioned that the carjacking was not the first time Hawkins had committed a crime against a person he knew, stating, âYou heard yesterday the defendant admitted to police that he stole the 9 millimeter he was caught with on December 9th from his cousin.â J.A. 272. While the Government acknowledged that Hawkins had conceded his guilt to the felon-in-possession charge, it argued to the jury that it was a tactical admission:
U.S. ATTORNEY: Now, why would the defendant rob someone he knew? Well, as I indicated, this was not the first time he did that. He robbed, stole a gun from [his] cousin around December 9th.
J.A. 273. These statements prompted Hawkins to move for a mistrial maintaining that the Government was attempting to persuade the jury to conclude Hawkins committed the carjacking based on the fact that he robbed his own cousin. The district court denied the motion.
During the Governmentâs rebuttal closing argument, counsel again mentioned that Hawkins had admitted to stealing the gun from his cousin. Hawkins again moved for a mistrial, contending that the statement violated Rule 404(b)âs prohibition on the use of propensity evidence. The district court denied, the motion and the case was submitted to the jury.
The jury found Hawkins guilty on all three counts. The district court sentenced Hawkins to 180 months for Count I, 120 months for Count II, and 120 months for Count III, for an aggregate term of incarceration of 360 months followed by three years of supervised release. Hawkins noted a timely appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291 (2006).
II.
Hawkins raises two primary issues on appeal. First, he contends that the district court erred in denying his motion to sever Counts I and II from Count III because Count III was improperly joined with Counts I and II under Rule 8.
Whether charges are properly-joined in an indictment is a question of law that we review de novo. See United States v. Cardwell, 433 F.3d 378, 384-85 (4th Cir.2005). âIf the initial joinder was not proper,' however, we review this non-constitutional error for harmlessness, and reverse unless the misjoinder resulted in no âactual prejudiceâ to the defendant!] âbecause it had [no] substantial and injurious effect or influence in determining the juryâs verdict.â â United States v. Mackins, 315 F.3d 399, 412 (4th Cir.2003) (quoting United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)). If misjoinder is found, the Government bears the burden of demonstrating that any error resulting from the misjoinder was harmless. Mackins, 315 F.3d at 412.
A.
Federal Rule of Criminal Procedure 8(a) provides:
Joinder of Offenses. The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged â whether felonies or misdemeanors or both â 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 8(a) permits âvery broad joinder,â Mackins, 315 F.3d at 412 (quoting 1A Charles Alan Wright, Federal Practice & Procedure § 141 (3d ed.1999)), âbecause the prospect of duplicating witness testimony, impaneling additional jurors, and wasting limited judicial resources suggests that related offenses should be tried in a single proceeding.â United States v. Mir, 525 F.3d 351, 357 (4th Cir.2008). Thus, joinder is the ârule rather than the exception,â United States v. Armstrong, 621 F.2d 951, 954 (9th Cir. 1980) (quoted favorably in United States v. Acker, 52 F.3d 509, 514 (4th Cir.1995)), âbecause of the efficiency in trying the defendant on related counts in the same trial.â Cardwell, 433 F.3d at 385.
The requirements of Rule 8(a), however, â âare not infinitely elastic,â â Mackins, 315 F.3d at 412 (quoting United States v. Randazzo, 80 F.3d 623, 627 (1st Cir.1996)), âand so âcannot be stretched to cover offenses ... which are discrete and dissimilar.â â Id. at 412 (quoting United States v. Richardson, 161 F.3d 728, 733 (D.C.Cir.1998)). Joinder of unrelated charges âcreate[s] the possibility that a defendant will be convicted based on considerations other than the facts of the charged offense.â Cardwell, 433 F.3d at 385; see also Bruton v. United States, 391 U.S. 123, 131 n. 6, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (âAn important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence.â).
In this case, the Government contends that the carjacking counts and possession of a firearm by a felon (Count III) are all offenses of the âsame or similar character.â The Government did not argue on brief, nor provide a rationale at oral argument, that joinder was proper either because the counts âare based on the same actâ or âconstitute parts of a common scheme or plan.â Our review of the record substantiates the lack of a nexus between the carjacking counts and Count III which would reflect the charges to be the âsame actâ or a âcommon scheme or plan.â Thus joinder rises and falls on whether Counts I and II are of a âsame or similar characterâ to Count III.
Joinder of offenses that âare based on the same act or transaction or on two or more acts or transactions connected to
Hawkins admits that Counts I and II are properly joined because âthey both related to the same carjacking that occurred on November 22, 200[6].â However, Hawkins argues that Count III âwas entirely unrelatedâ to Counts I and II, in part because the felon-in-possession count âarose out of a distinct incident unrelated to the carjackingâ and occurred seventeen days later. Hawkins emphasizes that there is no link between the carjacking counts and Count III because the handgun the police recovered from Hawkinsâ person on December 9 was not the same gun used in the carjacking. The fact that the carjacking and felon in possession counts involve different firearms is not contested by the Government.
The Government contends that all three counts were properly joined as offenses of the âsame or similar characterâ for two reasons: first, because âall three were firearms offensesâ and second, because âall these events occurred within a three-week period.â Br. of Appellee at 12. In support of its argument, the government cites, inter alia, United States v. Cole, 857 F.2d 971 (4th Cir.1988), and United States v. Rousseau, 257 F.3d 925 (9th Cir.2001). These decisions, however, provide no help to the Government in this case.
In Cole, we held proper the joinder of various drug charges stemming from a large-scale cocaine distribution ring with the defendantâs alien smuggling charges where the aliens smuggled into the country began to sell cocaine for his distribution ring after their arrival. Cole, 857 F.2d at 973. We stated in Cole that âboth the allegations in the indictment and the proof at trial were more than adequate to establish the connection between the drug conspiracy and the alien smuggling charges. Unquestionably, the smuggling counts were ârelated to, and ... logically and intimately connected together withâ the drug conspiracy.â Id. at 973 (quoting United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir.1977)). The Government alleges that this âanalogousâ case supports its argument because in Cole, we found âsome connectionâ between the counts, and in balancing the possible prejudice in trying the counts together against the possible prejudice to the defendants, we found that the balance âtilted in favor of a joint trial.â Br. of Appellee at 13.
However, the Governmentâs argument fails to appreciate the extent of the connection we found in Cole. In Cole, the smuggled aliens worked in the drug distribution ring once they arrived in America. In effect, drug profits subsidized the illegal smuggling of aliens who, in turn, went to work in the drug conspiracy to generate further drug profits for the defendants. Indeed, there existed a logical and intimate connection between the offenses which made joinder proper.
There was not just âsome connectionâ between the counts in Cole; instead, it was a strong connection. However, in the case at bar, the Government has proffered no evidence demonstrating a logical and close connection between the alleged carjacking and possession of a .357 caliber revolver on
Similarly, the Governmentâs reliance on Rousseau is misplaced. In Rousseau, the defendant was charged with two counts of possession of a firearm by a convicted felon, although each arrest related to a different firearm. Rousseau, 257 F.3d at 929. Prior to trial, Rousseau moved to sever the two felon-in-possession counts, but the court denied the motion. Id. Based only upon its review of the face of the indictment,
The circumstances in Rousseau are easily distinguishable from the circumstances in the present case. In Rousseau, the defendant was charged with two counts of violating the same statute, 18 U.S.C. § 922(g)(1), although the offenses occurred nearly six and a half months apart and the guns were different. But it is an unremarkable example of offenses of the âsame or similar characterâ when the defendant is charged only with multiple violations of the same statute. See Acker, 52 F.3d at 514 (âTrial courts routinely allow joinder of different bank robbery counts against a single defendant in the same indictment.â).
In the present case, however, Hawkins was charged with three different offenses: carjacking and possession of a firearm in furtherance of a crime of violence, and, about three weeks later, being a felon in possession of a different firearm. We perceive no similarity in .the connection between these three different counts and the counts on the same offense found appropriate for joinder by the Ninth Circuit in Rousseau.
In contrast to Cole and Rousseau, we do find persuasive the Fifth Circuitâs analysis in United States v. Holloway, 1 F.3d 307, 310-11 (5th Cir.1993), which held joinder improper on a factual scenario very similar to that in the case at bar. In Holloway, the defendant was tried on separate counts for robbery and being a.felon in possession of a firearm although the arrest on the later charge came two months after the alleged robbery. The Government argued joinder was proper because the offenses were of the âsame or similar character.â However, the Fifth Circuit noted
that on the face of the indictment there is no indication that a connection exists between his possession of the weapon and the alleged robbery conspiracy. Furthermore, there is no allegation that he had planned to use the weapon in a robbery, had used the weapon in a robbery, or that the weapon was in any way connected to the charged robberies or to any robbery.
Holloway, 1 F.3d at 310.
The Court then held that joinder of the robbery and unrelated felon-in-possession charge was improper under Rule 8:
*209 Plainly speaking, we can see no basis for the United States Attorney to have included this weapons charge in the indictment in the first place unless he was seeking to get before the jury evidence that likely would be otherwise inadmissible, i.e., that Holloway was a convicted felon and that he had a weapon on his person when arrested.... Even the government does not contend that the weapon found in Hollowayâs possession when he was arrested was the weapon used in the robberies. Furthermore, Hollowayâs arrest took place almost two months after the most recent robbery. Thus, we can see no basis for the conclusion that this count of Hollowayâs indictment was the same as the robbery counts....
We find the case against Hawkins no more convincing than that the Fifth Circuit rejected in Holloway. In this case, the only connection we discern between Count III and the carjacking counts is the appellant, Hawkins. We have held previously such a connection is not sufficient to sustain joinder. See Cardwell, 433 F.3d at 387 (requiring âadditional factsâ beyond the defendant as a basis for joinder of charges for defendantâs participation in a murder-for-hire plot and for defendantâs possession of a handgun when arrested for the murder-for-hire plot). Certainly, the indictment does not allege any explicit connection between the carjacking charges on November 26, 2006, and the felon-in-possession charge that stemmed from Hawkinsâ unrelated arrest on December 9, 2006. Nor do we find that the testimony at trial provides a basis by which to join the three counts as offenses of the âsame or similar character.â
Thus we do not find that Counts I and II are offenses of the âsame or similar characterâ as Count III. While the offenses all involved firearms, albeit different firearms, nothing ties them together except the defendant. There are no additional factors which indicate the offenses were âidentical or strikingly similar.â
Moreover, the Governmentâs reliance on the fact that all three offenses occurred during a three-week period will not sustain joinder, as we have held consistently that a mere temporal relationship is hot sufficient to establish the propriety of joinder. See Cardwell, 433 F.3d at 386 (â[W]e do not believe that a mere temporal relationship is sufficient to show that the two crimes at issue here were logically related.â).
Accordingly, we conclude that the district court erred in allowing joinder of Counts I and II with Count III because the charges are not of a same or similar character. We therefore turn to the question of whether this error requires reversal.
B.
An error involving misjoinder â âaffects substantial rightsâ and requires reversal only if the misjoinder results in actual prejudice because it âhad substantial and injurious effect or influence in determining the juryâs verdict.â â United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) (emphasis added); see also Mackins, 315 F.3d at 414. In assessing whether a misjoinder error results in actual prejudice, we are
(1) whether the evidence of guilt was overwhelming and the concomitant effect of any improperly admitted evidence on the juryâs verdict; (2) the steps taken to mitigate the effects of the error; and (3) the extent to which the improperly admitted evidence as to the misjoined counts would have been admissible at trial on the other counts.
Mackins, 315 F.3d at 414 (citing Lane, 474 U.S. at 450, 106 S.Ct. 725).
Hawkins argues that if there had been separate trials, no evidence presented during a trial on Count III would have been admissible in the trial on Counts I and II, and vice versa. In particular, Hawkins avers that the ' Governmentâs ability to present evidence on the unrelated charge of being a felon in possession to the same jury hearing the carjacking case âin-creasefd] the likelihood that ... Hawkins would be convictedâ of all three charges. Br. of Appellant at 17. Hawkins asserts that a jury hearing only Counts I and II would not hear evidence that Hawkins possessed a gun on December 9, 2006, that he had a prior felony conviction,
The Government responds that Hawkins suffered no undue prejudice from misjoin-der because there was overwhelming evidence of Hawkinsâs guilt on each count, and because the evidence relating to Count III and the carjacking counts would have been mutually admissible under Rule 404(b). Furthermore, the Government contends âthe district court took steps to eliminate any spillover effect as a result of the joinder.â Br. of Appellee at 17.
The district court did provide a limiting instruction to the jury in its attempt to mitigate the effects of the joinder of all three counts.
Although the Government argues to the contrary, we do not find that all of the
Additionally, under a proper balancing analysis pursuant to Federal Rules of Evidence 403 and 404(b), the probative value of the evidence would have been substantially outweighed by the danger of unfair prejudice to Hawkins. See Foutz, 540 F.2d at 736 (â[Ejvidence of âother crimesâ which is relevant only to prove a criminal disposition is universally acknowledged to be inadmissible.â); Holloway, 1 F.3d at 311 (concluding that had the felon-in-possession count been severed from the unrelated robbery counts, âthe fact that [the defendant] was a felon would not have been repeated and repeated to the jury, nor is it likely that his possession of the gun would have been admissibleâ in a separate trial on the robbery counts). As in Holloway, had Count III been tried separately from Counts I and II, âthe fact that [Hawkins] was a felon would not have been repeated and repeated to the jury, nor is it likely that his possession of the [9mm] gun would have been admissibleâ in the carjacking trial. Furthermore, the fact that Hawkins had stolen the 9mm gun from his cousin, a fact the Government repeatedly highlighted during closing argument, would not have come into evidence in a separate carjacking trial.
Our point is illustrated by the district courtâs statement from the bench denying Hawkinsâs motion to exclude his admission that he had stolen the .9 millimeter pistol from his cousin:
COURT: This is very interesting because it clearly suggests that if heâs willing to steal his cousinâs gun, heâs willing to steal anything from anybody. If heâs willing to steal his cousinâs gun, why wouldnât he be willing to steal money? His cousinâs gun, why wouldnât be he be willing [to] steal a car or cash or cell phones from some guy he just knows casually from the neighborhood?
J.A. 229-30. In response, Hawkinsâs attorney stated:
DEFENSE COUNSEL: Thatâs exactly why we think itâs not admissible, Your Honor. Youâre sort of making my point. If heâs willing to steal from his cousin, youâre telling the jury, look, what a bad guy he is.
J.A. 230.
This exchange reflects how unrelated bad conduct (the felon-in-possession of a gun) offered in evidence on another charge (carjacking) to prove the defendantâs general propensity to commit crimes can have a â âsubstantial and injurious effect or influence in determining the juryâs verdictâ,â as with Counts I and II in the case at bar. Lane, 474 U.S. at 449, 106 S.Ct. 725 (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239); see also Holloway, 1 F.3d at 312 (finding that by failing to sever the defendantâs felon-in-possession count from the unrelated robbery counts, âthe jury emphatically was told that [the defendant] was a bad and dangerous person âby his very nature,â and that a felon who carried a gun was just the sort of character who was most likely to have committed the robberies charged in the indictmentâ).