PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4576
COLLIN HAWKINS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(1:06-cr-00583-AMD-1)
Argued: September 25, 2009
Decided: December 18, 2009
Before MOTZ and AGEE, Circuit Judges, and
Mark S. DAVIS, United States District Judge
for the Eastern District of Virginia,
sitting by designation.
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 judg-
ment.
COUNSEL
ARGUED: Sicilia Englert, LAWLOR & ENGLERT, LLC,
Greenbelt, Maryland, for Appellant. Solette Allison Magnelli,
2 UNITED STATES v. HAWKINS
OFFICE OF THE UNITED STATES ATTORNEY, Balti-
more, Maryland, for Appellee. ON BRIEF: Michael E. Law-
lor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Jason
Weinstein, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland,
for Appellee.
OPINION
AGEE, Circuit Judge:
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 ("King") 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, ask-
ing 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 cab’s 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
UNITED STATES v. HAWKINS 3
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 King’s 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 driver’s side door. Hawkins then pushed King
in the direction of the trunk, during which time Hawkins emp-
tied the remainder of King’s 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, "I’m not going to shoot you
‘cause I know you." 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 car-
jacking 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 Balti-
more, which they had reason to believe involved Hawkins.
Acting on information that Hawkins would be arriving at a
4 UNITED STATES v. HAWKINS
convenience store officers watched Hawkins approach the
entrance of the store and tug at his waistband, indicating that
he might be armed.
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 Hawkins’ 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 King’s vehicle, in viola-
tion of 18 U.S.C. § 2119 (2000). Count II alleged that Haw-
kins "did knowingly possess and brandish a firearm in
furtherance of a crime of violence," the carjacking, in viola-
tion of 18 U.S.C. § 924(c)(1)(A)(ii). J.A. 7. Count III alleged
that Hawkins, "having been convicted of a crime punishable
by imprisonment for a term exceeding one year, did know-
ingly and unlawfully possess a loaded firearm, to wit: a Bersa
model Thunder 9 mm pistol" 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 Haw-
kins’ residence.
Prior to trial, Hawkins moved to sever Counts I and II (col-
lectively the "carjacking counts") 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 Pro-
cedure 8(a). J.A. 10. In the alternative, Hawkins argued sever-
ance was appropriate under Rule 14 because he "would be
significantly prejudiced by a single trial" because "the 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." J.A. 13. The district court denied Haw-
UNITED STATES v. HAWKINS 5
kins’ motion because it could "discern no reason why a jury
will not be able fairly and objectively to evaluate the evidence."1
J.A. 58.
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 open-
ing statements.2
During the trial, the Government introduced portions of a
transcript and tape recording from Hawkins’ post arrest inter-
view 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 sup-
ported 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, conceded his guilt as to Count III. Hawkins also
argued that the statement constituted evidence of other crimes
under Federal Rule of Evidence 404(b), and that the prejudice
of the statement significantly outweighed the probative value,
if any, the statement might have. The district court denied
Hawkins’ motion to suppress the statement:
1
Hawkins renewed his motion to sever Counts I and II from Count III
at trial upon the conclusion of the Government’s evidence and again at the
conclusion of the trial. The motions were denied.
2
The government later introduced an exhibit with Hawkins’ stipulations
as to Count III. In it, he stipulated to his prior felony conviction, to the fact
that he had not been pardoned for that felony nor had his civil rights
restored, and finally, to the fact that the parties agreed to admit the stipula-
tion into evidence to be read to the jury.
6 UNITED STATES v. HAWKINS
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 sug-
gested to the jury, it tends to suggest that Warren is
a drug dealer.
DEFENSE COUNSEL: But Your Honor —
COURT: Just let me finish. And so if, in fact, some
guy with Warren on November 22, 2006, got in Mr.
King’s 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. It’s not irrelevant. It’s 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 he’s a drug dealer.
J.A. 223. The district court then stated, "The fact that Mr.
Hawkins is willing to admit that he sells drugs is clearly rele-
vant to the charges in Counts One and Two. Clearly. Unmis-
takably." J.A. 224. Furthermore, the district court determined
that the probative value of Hawkins’ statement substantially
outweighed any undue prejudice:
COURT: I don’t see any prejudice in having the jury
know from Mr. Hawkins’ interview that he sells
drugs in east Baltimore. The relevance of that admis-
sion 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 he’s a drug dealer, coupled
with the evidence that whoever was in the car proba-
UNITED STATES v. HAWKINS 7
bly was or certainly could have been a drug dealer,
really ties him to the car in a way that no other evi-
dence in this case does.
J.A. 225. Additionally, the court found that even under Rule
404(b), the statement was admissible because it was evidence
of Hawkins’ 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: "If this is
about the gun, it’s not my gun, it’s my buddy’s gun. He
doesn’t know I have it and the bullets that are in it are mine.
I took my buddy’s bullets out." 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 Hawkins’ conformity therewith in violation of Rule
404(b). The district court disagreed:
COURT: This is very interesting because it clearly
suggests that if he’s willing to steal his cousin’s gun,
he’s willing to steal anything from anybody. If he’s
willing to steal his cousin’s gun, why wouldn’t he be
willing to steal money? His cousin’s gun, why
wouldn’t 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, Hawkins’ attorney stated:
DEFENSE COUNSEL: That’s exactly why we think
it’s not admissible, Your Honor. You’re sort of mak-
ing my point. If he’s willing to steal from his cousin,
you’re telling the jury, look, what a bad guy he is.
8 UNITED STATES v. HAWKINS
J.A. 230. The district court denied Hawkins’ motion to redact
the statement from the interview transcript or withhold that
part of the recording from the jury.
Hawkins testified in his own defense and vigorously denied
involvement in the carjacking. His counsel actively cross-
examined King and elicited various inconsistencies from his
testimony on direct examination.
During closing argument, counsel for the Government men-
tioned that the carjacking was not the first time Hawkins had
committed a crime against a person he knew, stating, "You
heard yesterday the defendant admitted to police that he stole
the 9 millimeter he was caught with on December 9th from
his cousin." 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 car-
jacking based on the fact that he robbed his own cousin. The
district court denied the motion.
During the Government’s rebuttal closing argument, coun-
sel 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)’s prohibi-
tion 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 dis-
trict court sentenced Hawkins to 180 months for Count I, 120
UNITED STATES v. HAWKINS 9
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 con-
tends 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 8.3 Alter-
natively, Hawkins argues that if all three counts were properly
joined for a single trial, the district court abused its discretion
in denying his motion to sever under Rule 14 because the
joinder of Count III with Counts I and II was unduly prejudi-
cial. Hawkins separately argues that the district court erred in
admitting into evidence the two statements he made during
his post-arrest interview.
III.
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). "If the initial
joinder was not proper, however, we review this nonconstitu-
tional error for harmlessness, and reverse unless the misjoin-
der resulted in no ‘actual prejudice’ to the defendant[ ]
‘because it had [no] substantial and injurious effect or influ-
3
Hawkins does not argue on brief that he was harmed by the joinder as
to Count III. Moreover, at oral argument he conceded that he was not con-
testing his conviction on Count III. Therefore, we will consider the issue
abandoned and will affirm the conviction on Count III. See 11126 Balti-
more Boulevard, Inc. v. Prince George’s County, Md., 58 F.3d 988, 993
n. 7 (4th Cir. 1995) (en banc). Hawkins does contend he is entitled to
resentencing on Count III because his sentence on that count was calcu-
lated in conjunction with and in reliance on the convictions for Counts I
and II.
10 UNITED STATES v. HAWKINS
ence in determining the jury’s verdict.’" United States v.
Mackins, 315 F.3d 399, 412 (4th Cir. 2003) (quoting United
States v. Lane, 474 U.S. 438, 449 (1986)). If misjoinder is
found, the Government bears the burden of demonstrating that
any error resulting from the misjoinder was harmless. Mack-
ins, 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—whether felo-
nies or misdemeanors or both—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 "very broad joinder,"
Mackins, 315 F.3d at 412 (quoting 1A Charles Alan Wright,
Federal Practice & Procedure § 141 (3d ed. 1999)), "because
the prospect of duplicating witness testimony, impaneling
additional jurors, and wasting limited judicial resources sug-
gests that related offenses should be tried in a single proceed-
ing." United States v. Mir, 525 F.3d 351, 357 (4th Cir. 2008).
Thus, joinder is the "rule rather than the exception," 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)), "because of the efficiency in trying the
defendant on related counts in the same trial." Cardwell, 433
F.3d at 385.
The requirements of Rule 8(a), however, "‘are not infinitely
elastic,’" Mackins, 315 F.3d at 412 (quoting United States v.
Randazzo, 80 F.3d 623, 627 (1st Cir. 1996)), "and so ‘cannot
be stretched to cover offenses . . . which are discrete and dis-
similar.’" Id. at 412 (quoting United States v. Richardson, 161
UNITED STATES v. HAWKINS 11
F.3d 728, 733 (D.C. Cir. 1998)). Joinder of unrelated charges
"create[s] the possibility that a defendant will be convicted
based on considerations other than the facts of the charged
offense." Cardwell, 433 F.3d at 385; see also Bruton v.
United States, 391 U.S. 123, 131 n.6 (1968) ("An important
element of a fair trial is that a jury consider only relevant and
competent evidence bearing on the issue of guilt or inno-
cence.").
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 "same or similar character." The Govern-
ment did not argue on brief, nor provide a rationale at oral
argument, that joinder was proper either because the counts
"are based on the same act" or "constitute parts of a common
scheme or plan." 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 "same act" or a
"common scheme or plan." Thus joinder rises and falls on
whether Counts I and II are of a "same or similar character"
to Count III.
Joinder of offenses that "are based on the same act or trans-
action or on two or more acts or transactions connected
together or constituting parts of a common scheme or plan"
presents the opportunity to submit evidence of one offense
that ordinarily would be admissible at a separate trial for the
other. United States v. Foutz, 540 F.3d 733, 737 (4th Cir.
1976); see also United States v. Carmichael, 685 F.2d 903,
910 (4th Cir. 1982) (determining that evidence of charges
joined because they were part of the same series of acts or
transactions would have been mutually admissible had defen-
dants enjoyed separate trials on the charges). However, when
offenses are joined based on their same or similar character,
"admissibility at separate trials is not so clear." Foutz, 540
F.3d at 737.
Hawkins admits that Counts I and II are properly joined
because "they both related to the same carjacking that
12 UNITED STATES v. HAWKINS
occurred on November 22, 200[6]." However, Hawkins
argues that Count III "was entirely unrelated" to Counts I and
II, in part because the felon-in-possession count "arose out of
a distinct incident unrelated to the carjacking" 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 Hawkins’ 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 prop-
erly joined as offenses of the "same or similar character" for
two reasons: first, because "all three were firearms offenses"
and second, because "all these events occurred within a three-
week period." Br. of Appellee at 12. In support of its argu-
ment, 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, pro-
vide 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
defendant’s alien smuggling charges where the aliens smug-
gled 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 "both 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 ‘related to, and
. . . logically and intimately connected together with’ the drug
conspiracy." Id. at 973 (quoting United States v. Jamar, 561
F.2d 1103, 1106 (4th Cir. 1977)). The Government alleges
that this "analogous" case supports its argument because in
Cole, we found "some connection" between the counts, and in
balancing the possible prejudice in trying the counts together
against the possible prejudice to the defendants, we found that
UNITED STATES v. HAWKINS 13
the balance "tilted in favor of a joint trial." Br. of Appellee at
13.
However, the Government’s 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 defen-
dants. Indeed, there existed a logical and intimate connection
between the offenses which made joinder proper.
There was not just "some connection" between the counts
in Cole; instead, it was a strong connection. However, in the
case at bar, the Government has proffered no evidence dem-
onstrating a logical and close connection between the alleged
carjacking and possession of a .357 caliber revolver on
November 22, and Hawkins’ possession of a 9 millimeter pis-
tol on December 9.
Similarly, the Government’s reliance on Rousseau is mis-
placed. 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 indict-
ment,4 the Ninth Circuit found that both "incidents involved
4
As we stated in Cardwell, "[w]hen the Government does not proffer
evidence tending to show a relationship between the charged crimes at a
pre-trial hearing on a motion to sever, . . . we examine compliance with
Rule 8(a) by looking to the allegations in the indictment and the evidence
produced at trial." Cardwell, 433 F.3d at 385. This view is in tension with
cases from other circuits holding that the propriety of joinder is to be
based on the indictment alone. For example, in the Ninth Circuit, district
courts examine only those allegations in the indictment to determine the
propriety of joinder. See United States v. VonWillie, 59 F.3d 922, 929 (9th
Cir. 1995). However, we believe that "[o]ur rule has the benefit of a built-
14 UNITED STATES v. HAWKINS
firearms charges," specifically felon-in-possession charges.
Id. at 932. Thus, the two offenses were of a "same or similar
character." Id.
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 "same
or similar character" when the defendant is charged only with
multiple violations of the same statute. See Acker, 52 F.3d at
514 ("Trial courts routinely allow joinder of different bank
robbery counts against a single defendant in the same indict-
ment.").
In the present case, however, Hawkins was charged with
three different offenses: carjacking and possession of a fire-
arm 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 Rous-
seau.
In contrast to Cole and Rousseau, we do find persuasive the
Fifth Circuit’s 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 rob-
bery and being a felon in possession of a firearm although the
in type of harmlessness review; if the indictment does not allege a suffi-
cient relationship for Rule 8(a) purposes, but the evidence at trial reveals
that such a relationship exists, it is difficult to see how the defendant could
ever be prejudiced by the technical misjoinder." Cardwell, 433 F.3d at 386
n.1.
UNITED STATES v. HAWKINS 15
arrest on the later charge came two months after the alleged
robbery. The Government argued joinder was proper because
the offenses were of the "same or similar character." How-
ever, the Fifth Circuit noted
that on the face of the indictment there is no indica-
tion 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 unre-
lated felon-in-possession charge was improper under Rule 8:
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 Holloway’s possession when he was arrested was
the weapon used in the robberies. Furthermore, Hol-
loway’s arrest took place almost two months after
the most recent robbery. Thus, we can see no basis
for the conclusion that this count of Holloway’s
indictment was the same as the robbery counts
....
Id. at 310-11.
We find the case against Hawkins no more convincing than
that the Fifth Circuit rejected in Holloway. In this case, the
16 UNITED STATES v. HAWKINS
only connection we discern between Count III and the car-
jacking counts is the appellant, Hawkins. We have held previ-
ously such a connection is not sufficient to sustain joinder.
See Cardwell, 433 F.3d at 387 (requiring "additional facts"
beyond the defendant as a basis for joinder of charges for
defendant’s participation in a murder-for-hire plot and for
defendant’s 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 Hawkins’ 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
"same or similar character."
Thus we do not find that Counts I and II are offenses of the
"same or similar character" 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 "identical or strik-
ingly similar."
Moreover, the Government’s 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 tem-
poral relationship is not sufficient to establish the propriety of
joinder. See Cardwell, 433 F.3d at 386 ("[W]e do not believe
that a mere temporal relationship is sufficient to show that the
two crimes at issue here were logically related.").5
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.
5
As we stated in Cardwell, allowing joinder based merely on a temporal
relationship "would effectively read Rule 8(a) to allow limitless joinder
whenever the charge resulted from the fruits of a single investigation."
Cardwell, 433 F.3d at 386.
UNITED STATES v. HAWKINS 17
B.
An error involving misjoinder "‘affects substantial rights’
and requires reversal only if the misjoinder results in actual
prejudice because it ‘had substantial and injurious effect or
influence in determining the jury’s verdict.’" United States v.
Lane, 474 U.S. 438, 449 (1986) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)) (emphasis added); see also
Mackins, 315 F.3d at 414. In assessing whether a misjoinder
error results in actual prejudice, we are guided by the Lane
Court’s indicia of harmlessness:
(1) whether the evidence of guilt was overwhelming
and the concomitant effect of any improperly admit-
ted evidence on the jury’s 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).
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 Government’s ability to
present evidence on the unrelated charge of being a felon in
possession to the same jury hearing the carjacking case "in-
crease[d] the likelihood that . . . Hawkins would be convicted"
of all three charges. Br. of Appellant at 17. Hawkins asserts
that a jury hearing only Counts I and II would not hear evi-
dence that Hawkins possessed a gun on December 9, 2006,
that he had a prior felony conviction,6 that he sold drugs to
6
Although we have held previously that a defendant’s stipulation to the
existence of a prior felony "diffuse[s] any passions that would be aroused
by specific evidence of the defendant’s felonious past," Cardwell, 433
F.3d at 388, in this case, the government presented further prejudicial evi-
dence related only to Count III by introduction of the statements on Haw-
kins’ drug dealing and theft of his cousin’s gun.
18 UNITED STATES v. HAWKINS
support himself, and finally, that he had stolen the 9 millime-
ter gun from his cousin. Br. of Appellant at 18.
The Government responds that Hawkins suffered no undue
prejudice from misjoinder because there was overwhelming
evidence of Hawkins’ 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). Fur-
thermore, the Government contends "the district court took
steps to eliminate any spillover effect as a result of the join-
der." 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.7 However, we conclude that, based on the other
two indicia of harmlessness provided in Lane, the error in
misjoinder affected Hawkins’ substantial rights, and, further-
more, "‘had substantial and injurious effect or influence in
determining the jury’s verdict.’" Lane, 474 U.S. at 449 (quot-
ing Kotteakos, 328 U.S. at 776, 66 S. Ct. 1239).
7
The district court gave the following instruction to the jury:
The superseding indictment, which I will refer to simply as the
indictment, contains a total of three counts. You must, as a matter
of law, consider each of the three counts of the indictment that
are before you and you must return a separate verdict as to each
of the three counts. Your verdict on any count should not control
your decision as to any other count, with one exception which I
will note for you later.
S.J.A. 456.
I instruct you in this connection that the prior conviction that is
an element of the charge in Count Three and is not disputed is
only to be considered by you for the fact that it exists, and for
nothing else. You are not to consider it for any other purpose.
You are not to speculate as to what it was for. You may not con-
sider the prior conviction in deciding whether it is more likely
than not that the defendant was in knowing possession of the fire-
arm that is charged, which is the disputed element of the offense.
S.J.A. 481.
UNITED STATES v. HAWKINS 19
Although the Government argues to the contrary, we do not
find that all of the evidence on Count III and that on Counts
I and II would have been mutually admissible under Rule
404(b) if Hawkins had enjoyed the benefit of separate trials.
Much of the evidence presented to the jury on Count III
would have been only marginally relevant, if relevant at all,
to Counts I and II. There was simply nothing about Hawkins
being in possession of a different firearm in December that
was related to any of the elements of the carjacking counts.
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 out-
weighed by the danger of unfair prejudice to Hawkins. See
Foutz, 540 F.2d at 736 ("[E]vidence of ‘other crimes’ which
is relevant only to prove a criminal disposition is universally
acknowledged to be inadmissible."); Holloway, 1 F.3d at 311
(concluding that had the felon-in-possession count been sev-
ered from the unrelated robbery counts, "the 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 admissible" in a separate trial on the
robbery counts). As in Holloway, had Count III been tried
separately from Counts I and II, "the 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 admissible" 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.8
Our point is illustrated by the district court’s statement
from the bench denying Hawkins’ motion to exclude his
8
We do not mean to suggest that the mere possession of a gun at the
time of an arrest is so prejudicial that it could never be admissible.
20 UNITED STATES v. HAWKINS
admission that he had stolen the 9 millimeter pistol from his
cousin:
COURT: This is very interesting because it clearly
suggests that if he’s willing to steal his cousin’s gun,
he’s willing to steal anything from anybody. If he’s
willing to steal his cousin’s gun, why wouldn’t he be
willing to steal money? His cousin’s gun, why
wouldn’t 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, Hawkins’ attorney stated:
DEFENSE COUNSEL: That’s exactly why we think
it’s not admissible, Your Honor. You’re sort of mak-
ing my point. If he’s willing to steal from his cousin,
you’re 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 defendant’s general propen-
sity to commit crimes can have a "‘substantial and injurious
effect or influence in determining the jury’s verdict’," as with
Counts I and II in the case at bar. Lane, 474 U.S. at 449 (quot-
ing Kotteakos, 328 U.S. at 776); see also Holloway, 1 F.3d at
312 (finding that by failing to sever the defendant’s felon-in-
possession count from the unrelated robbery counts, "the jury
emphatically was told that [the defendant] was a bad and dan-
gerous person ‘by his very nature,’ and that a felon who car-
ried a gun was just the sort of character who was most likely
to have committed the robberies charged in the indictment").
Additionally, in contrast to the circumstances of Lane or
Mackins, we are not persuaded that the evidence against Haw-
kins related to the carjacking counts was overwhelming. In
UNITED STATES v. HAWKINS 21
other cases in which we have analyzed error resulting from
misjoinder, we have determined that there was overwhelming
evidence supporting guilty verdicts on all of the misjoined
counts. See Mir, 525 F.3d at 358 n.1 (finding that even if there
was error in joining charges against the defendant, that error
was harmless because "the evidence of labor certification
fraud was overwhelming, and it is clear beyond a reasonable
doubt that the jury would have returned a guilty verdict on the
various counts absent the challenged testimony"); Mackins,
315 F.3d at 414 ("Most importantly, . . . this was [not] a close
case . . . . The evidence supporting the guilty verdicts for [the
defendants] on the drug and money laundering counts was
simply overwhelming. Similarly, the evidence of Willie
Mackins’[s] guilt on the counterfeit check counts was also
overwhelming.").
The only evidence against Hawkins at trial on the carjack-
ing counts was the testimony of the lone witness to the car-
jacking, King. Throughout the trial, counsel for Hawkins
brought out multiple inconsistencies prevalent in King’s story
about the carjacking. For example, the number of years King
claimed that he knew Hawkins, King’s description of Haw-
kins’ clothing and his statements during the carjacking, and
the location of the stops made during the carjacking varied
between his statement to prosecutors, testimony in front of the
grand jury, and testimony at trial. Although the Government
offered the testimony of the two police officers King ran to
after the alleged carjacking occurred, they simply repeated the
story King told them. The Government produced no further
corroborating evidence of Hawkins’ guilt on that charge. The
.357 caliber revolver and shotgun allegedly used in the car-
jacking were never found. Hawkins’ accomplices, Warren and
the unidentified female, were also never found.
Essentially, the case against Hawkins on Count I and II
boiled down to King’s testimony that Hawkins carjacked
King and Hawkins’ denial that he was involved in that crime.
While the evidence against Hawkins as to Count III was over-
22 UNITED STATES v. HAWKINS
whelming, the Government’s case against Hawkins on Counts
I and II was not overwhelming and "it is possible that the jury
found him guilty of that crime under the rationale that with so
much smoke there must be fire." Foutz, 540 F.2d at 739; see
also Holloway, 1 F.3d at 312 (finding that misjoinder of a
felon-in-possession charge with unrelated robbery charges led
to the defendant being "unjustifiably tried, at least in part, on
the basis of who he was, and not on the basis of the material
evidence presented against him"). Had the three offenses not
been joined for trial, Count III’s prejudicial evidence would
not have reached the jury, and Hawkins might well have been
acquitted of Counts I and II.
We therefore conclude that the misjoinder of Counts I and
II with Count III affected Hawkins’ substantial rights because
the misjoinder "had substantial and injurious effect or influ-
ence in determining the jury’s verdict." Kotteakos, 328 U.S.
at 776. The district court’s error in misjoinder of the counts
against Hawkins thus requires reversal. Therefore we vacate
Hawkins’ convictions on Counts I and II.9
IV.
For the foregoing reasons, we affirm Hawkins’ conviction
on Count III as a convicted felon in possession of a firearm,
but vacate his sentence on that count as it was determined, in
9
Hawkins also argued on brief that the district court erred when it
denied his request at trial that the court define the concept of reasonable
doubt in its instructions to the jury. To the extent this claim applies to
Count III, we reject Hawkins’ argument. This Court has, on several occa-
sions, held that a trial court should not define the concept of reasonable
doubt for a jury unless the jury specifically requests that the court do so
because of the "belief that efforts to define reasonable doubt are likely to
confuse rather than clarify the concept." United States v. Williams, 152
F.3d 294, 298 (4th Cir. 1998); see also United States v. Walton, 207 F.3d
694, 696-99 (4th Cir. 2000) (en banc); United States v. Reives, 15 F.3d 42,
45 (4th Cir. 1994); United States v. Adkins, 937 F.2d 947, 950 (4th Cir.
1991). The jury in the case at bar did not make such a request; therefore
clear precedent establishes that denial of the instruction was proper.
UNITED STATES v. HAWKINS 23
part, based on his convictions under Counts I and II. We
vacate Hawkins’ convictions under Counts I and II. We
remand this case to the district court for retrial on Counts I
and II and for resentencing on Count III.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
DIANA GRIBBON MOTZ, Circuit Judge, concurring in the
judgment:
I concur in the court’s judgment that joinder error requires
us to vacate Hawkins’ convictions on Counts I and II. I write
separately simply to note that this circuit’s approach to Fed-
eral Rules of Evidence 404(b) and 403 may well have precipi-
tated the error in this case.
We have used two interrelated theories in construing these
rules to permit admission of evidence of prior bad acts, not-
withstanding the potential of this evidence to prove criminal
propensity. See Michelson v. United States, 335 U.S. 469,
475-76 (1948). On the one hand, we have construed Rule
404(b) to permit admission of "all evidence of other crimes or
acts except that which tends to prove only criminal disposi-
tion." United States v. Powers, 59 F.3d 1460, 1464 (4th Cir.
1995) (internal quotation marks omitted). On the other hand,
we have construed Rule 403 to require exclusion of evidence
as prejudicial "only in those instances where the trial judge
believes that there is a genuine risk that the emotions of the
jury will be excited to irrational behavior, and that this risk is
disproportionate to the probative value of the offered evi-
dence." Id. at 1467 (internal quotation marks omitted).
Together, these theories require exclusion of prior bad act evi-
dence only in rare and egregious circumstances.
Indeed, we have consistently held that the admission of
even highly prejudicial bad act evidence does not violate
24 UNITED STATES v. HAWKINS
either rule. See, e.g., United States v. Branch, 537 F.3d 328,
341-42 (4th Cir. 2008) (affirming admission of evidence of
prior unrelated arrest and conviction for possession with
intent to distribute cocaine base in trial for the same crime);
United States v. Uzenski, 434 F.3d 690, 710 (4th Cir. 2006)
(affirming admission of evidence of defendant’s teenage
attempts to make pipe bombs in trial of defendant—now an
adult—for manufacture of a pipe bomb); United States v.
Hodge, 354 F.3d 305, 311-12 (4th Cir. 2004) (affirming
admission of evidence of prior unrelated drug transactions in
trial for possession of cocaine with intent to distribute);
United States v. Van Metre, 150 F.3d 339, 350-52 (4th Cir.
1998) (affirming admission of evidence of a prior conviction
for kidnapping and sexual assault in trial for separate act of
unrelated kidnapping).
In the face of this precedent, it is not at all surprising that
a busy district judge, concerned with both justice and judicial
economy, might find joinder permissible if evidence as to one
count demonstrated likelihood to commit a crime charged in
another count. Of course, as the majority explains, the law
does not permit such joinder any more than it permits admis-
sion of propensity evidence.