UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4407
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES MICHAEL HARKUM,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Frederick P. Stamp, Jr.,
District Judge. (CR-03-47)
Submitted: August 3, 2005 Decided: August 30, 2005
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
L. Richard Walker, Assistant Federal Public Defender, Clarksburg,
West Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Robert H. McWilliams, Jr., Sherry L. Muncy, Assistant
United States Attorneys, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Harkum appeals his conviction following a jury
trial and his 462-month sentence imposed for conspiracy to commit
bank robbery, in violation of 18 U.S.C. § 371 (2000), attempted
bank robbery, in violation of 18 U.S.C. §§ 2113(a), 2 (2000), armed
bank robbery, in violation of 18 U.S.C. § 2113(a), (d) (2000), two
counts of possession of a firearm, in violation of 18 U.S.C.
§ 924(c) (2000), and interference with commerce by violence, in
violation of 18 U.S.C. § 1951 (2000).
On appeal, Harkum asserts that the district court erred
by admitting evidence of an uncharged prior robbery of the local
McDonald’s. Review of a district court’s determination of the
admissibility of evidence under Rule 404(b) is for abuse of
discretion. See United States v. Queen, 132 F.3d 991, 995 (4th
Cir. 1997). A district court will not be found to have abused its
discretion unless its decision to admit evidence under Rule 404(b)
was arbitrary or irrational. United States v. Haney, 914 F.2d 602,
607 (4th Cir. 1990). Evidentiary rulings are also subject to
review for harmless error under Federal Rule of Criminal Procedure
52, and will be found harmless if the reviewing court can conclude
“without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error.” United States
v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (quoting United States
v. Heater, 63 F.3d 311, 325 (4th Cir. 1995)).
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Rule 404(b) prohibits the admission of evidence of “other
crimes” solely to prove a defendant’s bad character, but such
evidence may be “admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Fed. R. Evid.
404(b). For such evidence to be admissible under Rule 404(b), it
must be necessary, reliable, and relevant to an issue other than
character. See United States v. Rawle, 845 F.2d 1244, 1247 (4th
Cir. 1988). After careful review of the record, we conclude that
this evidence was properly admitted to demonstrate Harkum’s ongoing
participation in a conspiracy to commit a spree of robberies that
included robbing this McDonald’s. Fed. R. Evid. 404(b); Rawle, 845
F.2d at 1247; United States v. Masters, 622 F.2d 83, 86 (4th Cir.
1980. Accordingly, we find no abuse of discretion. Queen, 132
F.3d at 995.
Harkum also contends that the district court abused its
discretion in admitting evidence of his flight from police
following the instant offense, in violation of Fed. R. Evid. 403.
The Government asserts that evidence of flight demonstrated
consciousness of guilt and was therefore both relevant and
probative. This court reviews a district court’s evidentiary
rulings for abuse of discretion. United States v. Leftenant, 341
F.3d 338, 342 (4th Cir. 2003), cert. denied, 540 U.S. 1166 (2004).
This court defers to the balancing engaged in by the district court
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under Rule 403 “unless it is an arbitrary or irrational exercise of
discretion.” United States v. Heater, 63 F.3d 311, 321 (4th Cir.
1995). We conclude that the district court’s admission of such
evidence to demonstrate consciousness of guilt was not an arbitrary
or irrational exercise of discretion. Heater, 63 F.3d at 321; see
United States v. Obi, 239 F.3d 662, 665 (4th Cir. 2001)
(recognizing that consciousness of guilt may be inferred from
evidence of flight).
Harkum also asserts that various instances of
prosecutorial misconduct affected his substantial rights and
deprived him of a fair trial. A claim of prosecutorial misconduct
is reviewed to determine whether the conduct complained of so
infected the trial with unfairness as to make the resulting
conviction a denial of due process. United States v. Scheetz, 293
F.3d 175, 185 (4th Cir. 2002). To prevail under this standard,
Harkum must show that “the prosecutor’s remarks or conduct were
improper and, second . . . that such remarks or conduct
prejudicially affected his substantial rights” so as to deprive him
of a fair trial. Id. Whether prejudice exists is in turn
established by the following: (1) the degree to which the
prosecutor’s remarks had a tendency to mislead the jury; (2)
whether the remarks were isolated or extensive; (3) the strength of
competent proof introduced to establish defendant’s guilt; (4)
whether the prosecutor’s remarks were invited by the improper
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conduct of defense counsel; and (5) whether curative instructions
were given. Id. at 186. No one factor is dispositive. United
States v. Wilson, 135 F.3d 291, 299 (4th Cir. 1998). After careful
consideration of Harkum’s numerous claims of prosecutorial errors,
we conclude that Harkum has failed to demonstrate that the conduct
complained of so infected the trial with unfairness as to make the
resulting conviction a denial of due process. Scheetz, 293 F.3d at
185. Accordingly, we affirm Harkum’s conviction.
Finally, we turn to Harkum’s claim that in light of the
Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296
(2004), the district court erroneously enhanced his sentence based
upon facts not found by the jury. Because Harkum did not raise
this claim in the district court, his sentence is reviewed for
plain error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
2005) (citing United States v. Olano, 507 U.S. 725, 731-32 (1993)
(holding that to demonstrate plain error, a defendant must
establish that error occurred, that it was plain, that it affected
his substantial rights, and the error seriously affected the
fairness, integrity or public reputation of judicial proceedings)).
After Harkum filed this appeal, the Supreme Court decided United
States v. Booker, 125 S. Ct. 738 (2005), holding that the federal
sentencing guidelines’ mandatory scheme, which provides for
sentencing enhancements based on facts found by the court that were
not submitted to the jury, violated the Sixth Amendment.
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On appeal, Harkum asserts that three different offense-
level enhancements were imposed in violation of his Sixth Amendment
rights. At sentencing, the district court applied a two-level
increase, pursuant to U.S. Sentencing Guidelines Manual
§ 2B3.1(b)(1), because the object of the robbery was a financial
institution. The district court also applied a two-level increase
for bodily injury to a victim, pursuant to USSG § 2B3.1(b)(3)(D).
Finally, Harkum received a three-level enhancement for possession
of a firearm, pursuant to USSG § 2B3.1(b)(2)(E). Based on an
offense level of 26, and a Criminal History Category of III, the
district court imposed a 78-month sentence for Counts II, III, and
V, to run concurrently with a five-year sentence for Count I.
Finally, the court imposed a consecutive seven-year mandatory
minimum sentence on Count IV,1 and a consecutive 25-year mandatory
minimum on Count VI.2
First we conclude that the financial institution
enhancement was not erroneous. At trial, the Government presented
uncontroverted evidence that Harkum participated in the bank
robbery of the Huntington Bank (Count III). Harkum never
challenged these facts at trial or sentencing. Instead, Harkum
asserted the defense of duress, a claim the jury necessarily
rejected in finding Harkum guilty. Consequently, we find that the
1
See 18 U.S.C. § 924(c)(1)(A)(ii) (2000).
2
See 18 U.S.C. § 924(c)(1)(C)(i) (2000).
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facts underlying the district court’s enhancement for robbing a
financial institution were charged in the indictment and
necessarily found by the jury. Thus, there is no plain error.
Olano, 507 U.S. at 731-32; see Booker, 125 S. Ct. at 748 (quoting
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“[A]ny fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt.").
Evaluation of the constitutionality of the remaining
enhancements challenged by Harkum requires a two-step analysis.
The firearm enhancement was applied to Count II; however, the
indictment does not allege possession of a firearm. Moreover, the
jury was not required to find a possession of a firearm in this
instance to return a guilty verdict. Consequently, we find that
this enhancement was based upon facts not submitted to the jury, or
admitted by Harkum. Additionally, although several witnesses at
trial testified that Harkum struck a bank employee with the butt of
his gun, the jury did not have to make a finding of bodily injury
to convict Harkum of bank robbery and assault with a dangerous
weapon, as charged in Count III. We therefore conclude that this
enhancement as well was based upon facts not submitted to the jury,
or admitted by Harkum.
Nevertheless, we conclude that the application of these
two enhancements did not violate Harkum’s Sixth Amendment rights.
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Without the firearm and bodily injury enhancements, Harkum’s
offense level for Counts II, III and V would be reduced to 25,
making his applicable sentencing range 70-87 months. See United
States v. Evans, ___ F.3d ___, 2005 WL 1705531, at *1 n.4 (4th Cir.
July 22, 2005) (noting that, in determining whether Sixth Amendment
error occurred, sentence imposed must be compared to permissible
guideline range before adjusting for acceptance of responsibility).
Because the 78-month sentence actually imposed by the district
court fell squarely within this range, we conclude that no Sixth
Amendment violation occurred.
Accordingly, we affirm Harkum’s convictions and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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