USA v. Terance Lashawn Grimmette, (11th Cir. 2006)

Status: Not Published

Docket Number: 05-00118

Parts: 06-12673

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 22, 2006

THOMAS K. KAHN

N o . 06-12673

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 05-00118-CR-01-TWT-1

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

TERANCE LASHAWN GRIMMETTE,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Northern District of Georgia

(N o v em b er 22, 2006)

B efo re TJOFLAT, DUBINA and CARNES, Circuit Judges.

P E R CURIAM:

O n January 26, 2006, a Northern District of Georgia jury found Terance

L ash aw n Grimmette guilty of violating 18U.S.C. §§ 2113(a), 3559(c)(1) by ro b b in g a Wachovia Bank in Atlanta, Georgia on November 30, 2004, and by ro b b in g a Wachovia Bank in Lilburn, Georgia on January 10, 2005. On May 2, 2 0 0 6 , the district court sentenced him to prison to concurrent terms of 240 months an d ordered him to make restitution in the sum of $4, 071. Grimmette now appeals h is convictions, raising these issues: (1 ) whether the district court committed Fourth Amendment error in denying h is motion to suppress evidence seized from his apartment pursuant to a search w a rr an t because the affidavit supporting the warrant lacked probable cause; (2 ) whether the district court committed Fourth Amendment error in denying h is motion to suppress the warrantless seizure of his Wachovia bank records and car rental records at Accent Car Rental; ( 3 ) whether the district court abused its discretion in admitting under Federal R u le of Evidence 404(b) evidence of five prior, uncharged bank robberies co m m itted at Wachovia banks in Columbus, Georgia, with a modus operandi strik in g ly similar to the method used to commit the robberies described in the in d ictm en t in this case; and (4 ) whether the district court committed plain error under Crawford v. Wash in g to n , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), in admitting ev id en ce of robberies mentioned in (3) above because he had no opportunity to ex am in e those witnesses or present evidence that he was not involved in the r o b b e r ie s .

We find no merit in the first issue. The Report and Recommendation of the magistrate judge, which the district court adopted as the judgment of the court, p ro p erly found probable cause for the warrant.

We find no merit in the second issue as well. Grimmette's bank and car r en ta l records, which were gathered from his bank and from the car rental agency, w ere legally obtained. Contrary to Grimmette's view of the law, "[I]ndividuals h av e no Fourth Amendment expectation of privacy in their financial records while th o se records are in the hands of third parties." Lopez v. First Union Nat'l Bank, 1 2 9 F.3d 1186, 1190 (11th Cir. 1997). "[A]n individual has no claim under the f o u r th amendment to resist the production of business records held by a third p a r ty." In re Grand Jury Proceeding, 842 F.2d 1229, 1234 (11th Cir. 1988). In sh o rt, Grimmette had no Fourth Amendment right of privacy in these records kept an d maintained by Wachovia Bank and Accent Car Rental.

A s for Grimmettee's third issue, we find no abuse of discretion in the ad m issio n into evidence of the five Wachovia bank robberies in Columbus.

Federal Rule of Evidence 404(b) provides that ev id en ce of other crimes, wrongs, or acts is not admissible to prove th e character of a person in order to show action in conformity th e r ew ith . It may, however, be admissible for other purposes, such as p r o o f of motive, opportunity, intent, preparation, plan, knowledge, id en tity, or absence of mistake or accident.

To be admissible under this rule "the evidence must be relevant to an issue other th a n the defendant's character," "as part of the relevance analysis, the evidence m u st be sufficient to support a finding that the defendant actually committed the ex trin sic act," and "the probative value of the evidence must not be substantially o u tw eig h ed by unfair prejudice." United States v. Diaz-Lizaraza, 981 F.2d 1216, 1 2 2 4 (11 th Cir. 1993).

W h en Rule 404(b) evidence is offered to establish identity, this standard is "p a r tic u la rly stringent" and "the likeness of the offenses is the crucial c o n s id e r atio n . The physical similarity must be such that it marks the offenses as th e handiwork of the accused. In other words, the evidence must demonstrate a m o d u s operandi." United States v. Lail, 846 F.2d 1299, 1301 (11th Cir. 1988) ( q u o tin g United States v. Beechum, 582 F.2d 898, 912 n.15 (5th Cir. 1978) (en b an c)). The level of proof required by the second prong of this test of admissibility is based on the standards of relevancy in Federal Rule of Evidence 104(b), and the g o v e r n m e n t need not come forward with proof beyond a reasonable doubt, or even clear and convincing evidence, that the defendant committed the extrinsic acts for th e Rule 404(b) evidence to be admissible. Beechum, 582 F.2d at 913.

T h e central factor in assessing whether the probative value of Rule 404(b) ev id en ce is substantially outweighed by its prejudicial impact is whether the e v id e n c e is essential to obtain a conviction or the government can do without such ev id en ce. See United States v. Pollock, 926 F.2d 1044, 1049 (11th Cir. 1991).

The probity of evidence of other crimes where introduced for this p u rp o se [demonstrating modus operandi] depends upon both the u n iq u en ess of the modus operandi and the degree of similarity b etw een the charged crime and the uncharged crime. Of course, it is n o t necessary that the charged crime and the other crimes be identical in every detail. But they must possess a common feature or features th a t make it very likely that the unknown perpetrator of the charged crim e and the known perpetrator of the uncharged crime are the same p e r so n . The more unique each of the common features is, the smaller th e number that is required for the probative value of the evidence to b e significant. But a number of common features of lesser u n iq u en ess, although insufficient to generate a strong inference of id en tity if considered separately, may be of significant probative value w h en considered together.

U n ited States v. Myers, 550 F.2d 1036, 1045 (5th Cir. 1977). "An evaluation of th e probative value of the evidence must also consider the similarity between the e x tr in s ic and charged offenses and the time gap between the two offenses." United S ta te s v. Hernandez, 896 F.2d 513, 521 (11th Cir. 1990).

T h e evidence that Grimmette committed the five Columbus robberies met th e relevancy and sufficiency prongs of the test for admissibility because it tended to show a common modus operandi in the seven robberies (the five Columbus r o b b e rie s and the two charged in the instant indictment) and that Grimmette was th e perpetrator.

T h e probative value of the evidence regarding those robberies was also not s u b s ta n tia lly outweighed by its undue prejudice. Since Grimmette contested w h eth er he had committed the charged bank robberies, identity was at issue in the trial, the government was required to prove it beyond a reasonable doubt, and the g o v ern m en t would have faced several difficulties obtaining a conviction of G r im m e tte without the Rule 404(b) evidence. Therefore, evidence of the robberies w as reasonably necessary for the government to prove identity. In addition, the R u le 404(b) conduct was substantially similar to the charged conduct in this case.

Further, the district court limited the prejudicial effect of the extrinsic evidence by g iv in g the jury cautionary instructions at the close of trial, although it did not give su ch instructions when the evidence was introduced. In sum, we find no abuse of d iscretio n in the admission of this evidence.

Grimmettee's fourth issue implicates the Sixth Amendment's Confrontation C lau se. He asserts that all of the information presented about five Wachovia ro b b eries in Columbus was testimonial, and that he had no opportunity to examine w itn esses providing that information. Grimmette did not raise this Confrontation C la u s e issue in the district court. We therefore consider it for plain error. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.), cert. denied, 545 U.S.

11 2 7 (2005). This standard requires that there be error, that it be plain, and that it affect substantial rights. Id. at 1298. A substantial right was affected if the ap p ellan t can show that there is a reasonable probability sufficient to undermine th e confidence in the outcome of the case that there would have been a different resu lt had there been no error. Id. at 1299. If these conditions are met, then we m ay exercise our discretion to notice the error if it seriously affects the fairness, in teg rity, or public reputation of judicial proceedings. Id. at 1298.

U n d er the Confrontation Clause, testimonial hearsay is admissible only w h ere the declarant is unavailable, and only where the defendant has had a prior o p p o rtu n ity to cross-examine. Crawford, 541 U.S. at 59, 124 S.Ct. at 1369.

Testimonial statements are typically declarations or affirmations made for the p u rp o se of establishing some fact. Id. at 51-52, 124 S.Ct. at 1364.

G rim m ette's rights under the Confrontation Clause were not violated by the ad m issio n of evidence relating to the five robberies because that evidence was not te stim o n ia l hearsay. The evidence consisted of live testimony from the bank tellers targ eted in the robberies. Hearsay is an out-of-court statement offered to prove the tru th of the matter asserted which is not a prior inconsistent statement or a partyo p p o n e n t admission. Fed. R. Evid. 801(c)-(d). The live testimony of a witness at trial is not an out-of-court statement, is not hearsay, and does not violate the C o n fro n tatio n Clause. Crawford, 541 U.S. at 55, 124 S.Ct. at 1367. In fine, we fin d no plain constitutional error in the admission of the challenged evidence.

Grimmettee's convictions are A F F IR M E D .