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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 25, 2003 Decided July 13, 2004
No. 03-3017
UNITED STATES OF AMERICA,
APPELLEE
v.
BRIAN ERIC CARR,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00106–01)
Edward C. Sussman, appointed by the court, argued the
cause and filed the briefs for appellant.
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, Elizabeth Tros-
man, and Barbara E. Kittay, Assistant U.S. Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: GINSBURG, Chief Judge, and EDWARDS and TATEL,
Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Brian Carr was convicted on five
counts of bank robbery. Carr challenges his convictions and
his sentence, arguing that the district court erred by: (1)
failing to sever each count for a separate trial; (2) instructing
the jury that the change in Carr’s appearance before trial
could be considered as evidence of his consciousness of guilt;
and (3) making his 22–month sentence on one count consecu-
tive to his concurrent sentences of 240 months on each of the
other four counts. Carr also claims he received ineffective
assistance of counsel, in violation of the Sixth Amendment to
the Constitution of the United States. Because none of
Carr’s arguments has any merit, we affirm the judgment of
the district court.
I. Background
On January 30, 2002 Carr entered a branch of the Chevy
Chase Bank in downtown Washington, D.C. and passed the
teller a note demanding ‘‘all the money.’’ Upon exiting the
bank Carr was immediately stopped by officers of the Metro-
politan Police Department because he fit the description of
the suspect in four other bank robberies perpetrated within a
few blocks of the Chevy Chase branch. After confirming the
bank had just been robbed, the officers set up an identifica-
tion procedure at which two bank employees identified Carr
as the person who had just robbed their branch; questioning
of Carr then elicited an admission that he had robbed the
branch.
The officers informed Carr that his appearance fit that of
the person who had committed the other four robberies.
That person was, like Carr, a black male in his 20s or 30s,
who had a thick, unkempt beard and wore a heavy jacket and
either a baseball cap or a knit hat. The modus operandi of
all five robberies was also similar, as were the robber’s facial
expressions, gestures, and demand notes, which in each case
3
the robber asked be returned to him. Carr denied robbing
the other four banks.
Carr was charged with all five bank robberies. He was
tried by a jury and convicted on all counts, for which he was
sentenced to four prison terms of 240 months, to be served
concurrently, and one term of 22 months, to be served
consecutively. Carr now appeals both his conviction and the
sentence.
II. Analysis
We take up first Carr’s three claims of reversible error by
the district court. We then turn to Carr’s claim to have
received ineffective assistance of counsel at trial.
A. Severance
Carr argues the district court erred in denying his motion
to sever each bank robbery count for a separate trial. Under
Rule 14 of the Federal Rules of Criminal Procedure, a ‘‘court
may order [a] separate trial[ ]’’ for each offense if it appears
the defendant would be prejudiced by ‘‘the joinder of of-
fenses’’ in a single trial. Carr, laboring under the mistaken
impression his counsel had not moved for severance before
trial, now argues that ‘‘[a]s the trial progressed’’ the district
court should have sua sponte ordered separate trials for each
of the five counts because the ‘‘joint trial of extremely similar
events, and the manner in which it was tried, created an
unfairly prejudicial environment.’’ The Government argues
Carr did not suffer any prejudice from the district court’s
failure to sever each count.
A district court’s denial of a defendant’s motion to sever
may generally be reversed ‘‘only upon a finding of clear
prejudice and abuse of discretion.’’ United States v. Levi, 45
F.3d 453, 455 (D.C. Cir. 1995) (citations and internal quota-
tions omitted). In Levi, as in the present case, ‘‘the perpetra-
tor [had] used similar notes, made similar statements and
gestures, wore similar clothing, and robbed banks TTT in the
same general area of the city’’ in each robbery. Id. We
explained that a ‘‘finding of prejudice is logically precluded if,
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had the counts been tried separately, the evidence concerning
each count would have been admissible on each other count.’’
Id. In that case, as in this, if the defendant had been tried
separately on each count, then the same evidence concerning
the perpetrator’s modus operandi would have been admissi-
ble in each case under the identity exception to Federal Rule
of Evidence 404(b). Id.; see United States v. Rollins, 301
F.3d 511, 518–19 & n.3 (7th Cir. 2002) (evidence of modus
operandi admissible under ‘‘identity exception’’ to 404(b)).
Therefore, here, as in Levi, there was no prejudice to the
defendant from joining the counts in a single trial.
B. Appearance Instruction
Between Carr’s arrest and his trial he gained weight,
shaved his beard, and began to wear glasses. The Govern-
ment therefore asked for and the district court gave the jury
the following instruction:
A defendant’s attempt to change his appearance after
a crime has been committed does not create a presump-
tion of guilt. An innocent person charged with a serious
offense may resort to various means, both lawful and
unlawful, to avoid prosecution.
On the other hand, you may consider evidence of the
defendant’s attempt to change his appearance as tending
to prove the defendant’s fear of being identified and
therefore his consciousness of guilt. You are not re-
quired to do so. You should consider and weigh such
evidence along with all of the other evidence in the case
and give it the weight you think it deserves.
Carr argues this instruction created a ‘‘presumption of
guilt,’’ the first sentence of the instruction to the contrary
notwithstanding. The Government responds that a defen-
dant’s attempt to change his appearance is properly the
subject of a jury instruction, citing United States v. Perkins,
937 F.2d 1397, 1403 (9th Cir. 1991), and United States v.
McKinley, 485 F.2d 1059, 1061 (D.C. Cir. 1973). We review
the district court’s instruction for abuse of discretion. See
United States v. White, 116 F.3d 903, 924 (D.C. Cir. 1997);
United States v. Williams, 113 F.3d 243, 246 (D.C. Cir. 1997).
5
Obviously Carr could anticipate that witnesses would be
called at trial to identify him as the robber. For whatever
reason, Carr made profound alterations to his appearance
before trial by gaining weight, shaving his heavy beard, and
donning glasses. Almost every witness who was asked none-
theless identified Carr as the robber — and each such witness
commented upon the change in his appearance. Because
there was ‘‘independent evidence indicating that the defen-
dant TTT changed his appearance,’’ the jury could reasonably
infer that he did so in order to avoid identification at trial and
thereby ‘‘evinced [a] consciousness of guilt.’’ Perkins, 937
F.2d at 1403. Therefore, the district court’s instruction that
the jury ‘‘may consider evidence of the defendant’s attempt to
change his appearance’’ was founded in the record and was
not an error.
On appeal, Carr’s counsel points out — as trial counsel
pointed out to the jury — there could be innocent explana-
tions for the changes in Carr’s appearance. Whether to
credit those explanations is properly for the jury, however,
not for this court.
C. Sentencing
Carr next argues the district court erred in making his 22–
month sentence on the fifth count of bank robbery consecu-
tive to his concurrent sentences of 240 months on the other
four counts. According to Carr, such ‘‘stacking should not be
permitted when concurrent sentencing will achieve a sentence
within the guideline range,’’ which in this case was 210 to 260
months.* The Government argues the district court was
required by § 5G1.2(d) of the Sentencing Guidelines to sen-
tence Carr as it did.
Carr cites no authority to support his argument, and with
good reason. Section 5G1.2(d) of the Sentencing Guidelines
provides that, because the statutory maximum sentence for
bank robbery (240 months) is less than the total punishment
(of 262 months) ‘‘arrived at for all counts through application
* The district court determined that Carr should be sentenced at
the top of that range, which determination Carr does not dispute.
6
of the Guidelines,’’ United States v. Lott, 310 F.3d 1231, 1242
(10th Cir. 2002), the ‘‘sentence imposed on one or more of the
other counts shall run consecutively, but only to produce a
combined sentence equal to the total punishment.’’
Once the district court determined Carr’s total punishment
should be 262 months, the Guidelines required the court to
stack Carr’s sentences in order to reach that duration; the
command of § 5G1.2(d) ‘‘that multiple sentences ‘shall’ run
consecutively in circumstances of this case leaves no room for
district court discretion.’’ United States v. Lafayette, 337
F.3d 1043, 1050 & n.12 (D.C. Cir. 2003); United States v.
Garc´a-Torres, 341 F.3d 61, 75 (1st Cir. 2003) (section
ı
5G1.2(d) ‘‘mandate[s] the imposition of consecutive sentences
in order to achieve (as close as possible) the ‘total punish-
ment’ ’’); United States v. Fuller, 332 F.3d 60, 67–68 (2d Cir.
2003) (noting error where ‘‘total punishment’’ was 151 months’
imprisonment, yet district court stacked only 120– and 30–
month sentences).
D. Ineffective Assistance of Counsel
Finally, Carr argues his trial attorney’s performance was
so deficient as to deprive him of his Sixth Amendment right
to the assistance of counsel. Specifically, he complains that
trial counsel: (1) failed to move for a severance of counts,
either pre-trial or during trial; (2) failed to enter into evi-
dence a prescription that would have shown Carr’s eyeglasses
were medically necessary and not a cosmetic change Carr
made in order to avoid identification at trial; and (3) did not
make ‘‘sufficient efforts’’ to locate two individuals the police
had suspected, before Carr was apprehended, of committing
the first four bank robberies.
To succeed upon a claim of ineffective assistance of counsel
the defendant must show: (1) ‘‘his lawyer made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment’’; and (2) ‘‘a reasonable
probability that but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’’ Strick-
land v. Washington, 466 U.S. 668, 687, 694 (1984). Our
practice in this circuit is to remand an ineffective assistance
7
of counsel claim to the district court ‘‘for an evidentiary
hearing unless the trial record alone conclusively shows that
the defendant either is or is not entitled to relief.’’ United
States v. Rashad, 331 F.3d 908, 909–10 (D.C. Cir. 2003)
(citations and internal quotations omitted).
In this case no remand is necessary because it is clear from
the record Carr is not entitled to relief. First, Carr’s counsel
did request a severance of all counts before trial, but the
district court (as we have seen) correctly denied the motion.
Counsel did not renew the motion during the trial, but failure
to renew a non-meritorious motion renders a lawyer’s per-
formance efficient, not deficient. See Vieux v. Pepe, 184 F.3d
59, 64 (1st Cir. 1999).
Second, Carr’s counsel can hardly be faulted for failing to
introduce into evidence Carr’s prescription for eyeglasses
because Carr himself was responsible for it coming to light
only after the close of the evidence. Carr had got the
prescription from the D.C. Department of Corrections while
awaiting trial but he did not bring it to the attention of his
attorney until after the trial record was closed and both sides
had presented their closing arguments to the jury.
Finally, there is ample record evidence that Carr’s trial
counsel did attempt to locate the two men whom the police
had suspected, before Carr was apprehended, of committing
the first four robberies. Carr’s counsel attempted to subpoe-
na both individuals several times at their last known work
and home addresses, but neither man could be found. Coun-
sel next moved to have their photographs admitted into
evidence, which the district court denied. Then, in his cross-
examination of an FBI agent who had investigated the bank
robberies, Carr’s counsel elicited testimony that the two men
in question, who also fit the physical description of the bank
robber, had been suspected of committing the other four
robberies prior to Carr’s arrest. Thus did Carr’s counsel do
the best he could, with the resources available to him, to put
before the jury Carr’s defense that one or both of the other
suspects, and not Carr, committed the robberies. Therefore,
the record conclusively shows Carr’s trial attorney did not
8
provide Carr with constitutionally ineffective assistance of
counsel.
III. Conclusion
For the foregoing reasons, the judgment of the district
court is
Affirmed.