United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2010 Decided June 28, 2011
No. 09-3099
UNITED STATES OF AMERICA,
APPELLEE
v.
MARK STUBBLEFIELD,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00171)
Dennis M. Hart, appointed by the court, argued the cause
and filed the brief for appellant.
Michael J. Friedman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Roy W. McLeese III, Chrisellen
R. Kolb, and Stephanie Brooker, Assistant U.S. Attorneys.
Before: TATEL, GARLAND, and KAVANAUGH, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: Mark Stubblefield appeals from his
convictions for multiple bank robberies. He contends that his
trial violated the Speedy Trial Act, that the district court erred in
limiting the scope of his counsel’s closing argument, and that
the court further erred in admitting evidence of an additional,
uncharged bank robbery. We reject the first two contentions and
conclude that any error with respect to the third was harmless.
I
On January 29, 2008, a man entered Washington First bank
in Northwest Washington, D.C. and passed the teller a crumpled
note informing her that it was a robbery. When the teller
dropped the note, the robber snatched it back. The teller then
turned over more than one thousand dollars in cash, and the
robber escaped. Washington First was robbed twice more, on
March 26 and April 7, 2008. On all three occasions, witnesses
described the perpetrator as a very short African-American
male, with unusual marks or indentations on the skin of his face.
In two of the robberies, witnesses also described the perpetrator
as having a unique, raspy voice. Two of the crimes were
initiated when the robber handed the teller a note, which he
snatched back before she could finish reading it. A bank
employee who witnessed all three robberies reported that the
robber was the same in each one.
On March 26, approximately fifteen minutes after the
second Washington First bank robbery, there was an
unsuccessful attempt to rob the Urban Trust Bank located less
than four blocks away. The perpetrator approached the teller
and handed her a note that said, “give me your large bills.” He
left when the teller ran away without handing over any money.
3
Witnesses described the robber as a short black man with a mark
on his face.
A United Bank in Northwest Washington was also robbed
twice during the first half of 2008. On March 21 and April 11,
2008, a person entered the bank, handed the teller a note
demanding money, and then left the bank with the cash.
Witnesses reported that the two robberies were committed by
the same person, again described as a very short African-
American man with odd facial skin.
Finally, on April 21, 2008, a robber obtained over six
hundred dollars from a teller at Commerce Bank by walking up
to her window, handing her a crumpled note, and -- before she
had a chance to read it -- telling her it was “a stick up.”
Witnesses reported that the robber was a short black man with
unusual facial markings or indentations and a raspy voice.
The Metropolitan Police Department distributed wanted
posters in connection with the robberies. In early May 2008, an
informant told the police that Mark Stubblefield matched the
description of the man on the posters. On May 13, Stubblefield
was charged by complaint with robbery, having been taken into
custody on another charge. Stubblefield did not have any of the
stolen currency on his person when he was arrested, nor was
there evidence of a dye pack that had been hidden in some of the
stolen money.1 His unusual appearance, however, did match the
witnesses’ descriptions of the robber: Stubblefield is a 5'2", 51-
year-old African-American male who, at the time of his arrest,
“had loose facial skin that created certain types of indentations
on his face when he made certain facial expressions.” Trial Tr.
1
The police were unable to search Stubblefield’s residence for
the currency or other physical evidence because he had no fixed
address, and investigators could not determine where he was living.
4
at 44 (Jan. 27, 2009).2 On June 13, 2008, a grand jury handed
down an indictment charging Stubblefield with six counts of
bank robbery and one count of attempted bank robbery, all in
violation of 18 U.S.C. § 2113(a).
At trial, the government relied primarily on witness
identification evidence. It presented at least one witness to each
robbery who picked Stubblefield out of a photo array,
identifying him as the perpetrator. In addition, the court
permitted the government to present -- over defense objections
-- information concerning a further, uncharged bank robbery that
occurred in Virginia. In that robbery, witnesses described the
perpetrator as a short African-American man with a “smoker’s
voice,” who used a note to obtain money from a teller during
business hours. A witness to the Virginia robbery identified
Stubblefield from a photo array.
In his defense, Stubblefield pointed out that, although the
police were able to collect some latent fingerprints at the scene
of several of the robberies, none of the prints matched each other
or those of Stubblefield. Stubblefield’s fingerprint expert
testified that this was highly unusual, as was the fact that the
police had been unable to detect any latent prints at all at some
of the banks. Stubblefield also sought to undermine the various
witness identifications. He presented evidence that one witness
to the March 26 Washington First robbery and one witness to
the United Bank robberies each indicated the perpetrator was not
in a photo array that contained Stubblefield’s picture, and he
elicited testimony that some witnesses initially described the
robber as having different physical characteristics than those of
Stubblefield. Stubblefield also called three witnesses to the
uncharged Virginia robbery to testify to their impressions that
2
These indentations were apparently caused by missing teeth,
which were repaired before trial by a dentist at the D.C. Jail.
5
the perpetrator was a 20- to 25-year-old, light-skinned man who
was approximately 5'6" tall. Trial Tr. 29-59 (Feb. 9, 2009 a.m.).
The jury convicted Stubblefield on all charges, and he now
raises three challenges to his conviction.
II
Stubblefield’s first contention is that his indictment should
have been dismissed pursuant to the 30-day complaint-to-
indictment clock of the Speedy Trial Act, 18 U.S.C. §§ 3161(b),
3162(a)(1). Defense counsel filed a motion to dismiss on that
ground in the district court, which the court denied without
comment. We review a district court’s Speedy Trial Act
determination “de novo [as to] matters of law,” and “for clear
error as to findings of fact.” United States v. Sanders, 485 F.3d
654, 656 (D.C. Cir. 2007).
The Speedy Trial Act provides: “If, in the case of any
individual against whom a complaint is filed charging such
individual with an offense, no indictment . . . is filed within the
[30-day] time limit required by section 3161(b) as extended by
section 3161(h) . . . , such charge against that individual
contained in such complaint shall be dismissed or otherwise
dropped.” 18 U.S.C. § 3162(a)(1). Stubblefield contends that,
because 31 calendar days passed between the May 13 complaint
and the June 13 indictment in his case, the Act required the
district court to dismiss the case.
The government does not dispute Stubblefield’s arithmetic.
The Speedy Trial Act, however, contains exceptions to the 30-
day rule. As just quoted, § 3162(a)(1) requires that the
indictment be filed within the 30-day limit “as extended by
section 3161(h).” That section provides, as particularly relevant
here, that the “following periods of delay shall be excluded in
6
computing the time within which . . . an indictment must be
filed”:
(1) Any period of delay resulting from other
proceedings concerning the defendant, including but
not limited to . . . (D) delay resulting from any pretrial
motion, from the filing of the motion through the
conclusion of the hearing on, or other prompt
disposition of, such motion.
18 U.S.C. § 3161(h). On appeal, the government suggests an
array of days that might be excluded under this provision.
However, because there were only 31 days between the
complaint and Stubblefield’s indictment, there need only be one
excluded day to bring the indictment within the Act’s time
limitation. And because at least one day clearly is excluded, we
need not address the government’s other arguments.
The excluded date is May 23, 2008. The district court’s
docket states that, on that day, the United States made an oral
motion to commit the defendant to the custody of the Attorney
General, the magistrate judge held a detention hearing, and the
magistrate granted the government’s motion and ordered pretrial
detention. See Crim. Docket for Case #: 1:08-cr-00171.
Accordingly, May 23 is excluded from the 30-day calculation as
a period of “delay resulting from any pretrial motion, from the
filing of the motion through the conclusion of the hearing
on . . . such motion,” 18 U.S.C. § 3161(h)(1)(D). See United
States v. Harris, 491 F.3d 440, 443 n.1 (D.C. Cir. 2007) (holding
that both the day on which a pretrial motion is filed and the day
on which the hearing is held are excluded); United States v.
Taylor, 497 F.3d 673, 676 (D.C. Cir. 2007) (holding that
“exclusion under § 3161(h) . . . is triggered by written and oral
motions alike”).
7
At oral argument, Stubblefield conceded that, had the
district court stated it was denying his Speedy Trial Act motion
because May 23 was excluded, he would have no ground for
appeal. Oral Arg. Tr. 12. But because the court did not give
that -- or any other rationale -- Stubblefield maintains that the
denial of his motion cannot be sustained. This circuit, however,
has held that the fact “[t]hat neither the district court nor the
government relied upon [an] exclusion provided by section
3161(h)(1) does not . . . preclude us from doing [so].” United
States v. Garrett, 720 F.2d 705, 710 (D.C. Cir. 1983). And
because the exclusion provided by § 3161(h)(1)(D) is
“automatic[,]” United States v. Tinklenberg, — S. Ct. —, 2011
WL 2039366, at *6 (May 26, 2011), and applies “without
district court findings,” Bloate v. United States, 130 S. Ct. 1345,
1353 (2010), there is no reason why we should not apply it and
hold Stubblefield’s indictment timely. See Garrett, 720 F.2d at
710-11.3
III
Stubblefield’s second contention is that the district court
erred in granting the government’s motion to bar his counsel
from pursuing two lines of argument in her closing. We review
the court’s decision to limit the scope of closing argument for
abuse of discretion. United State v. Brodie, 524 F.3d 259, 267
(D.C. Cir. 2008); United States v. Hoffman, 964 F.2d 21, 24
(D.C. Cir. 1992).
3
Tinklenberg held that “the filing of a pretrial motion falls
within [§ 3161(h)(1)(D)] irrespective of whether it actually causes, or
is expected to cause, delay.” 2011 WL 2039366, at *3. Bloate noted
that § 3161(h)(1)(D) “automatically” applies without a finding by the
district court that a continuance would serve the “ends of justice.” See
130 S. Ct. at 1350-53, 1355-56.
8
The district court barred counsel from arguing that law
enforcement officers had failed to engage in “best practices”
when presenting witnesses with photo arrays, and that DNA
evidence (which the government did not have) “was more
trustworthy than fingerprint or photo identification evidence.”
Appellant Br. 39. The district court barred these arguments
because counsel had presented “no evidence of what any [b]est
[p]ractices are” with respect to photo arrays, and no evidence
“that DNA evidence is more reliable” than fingerprints or
identifications. Trial. Tr. 54-55 (Feb. 9, 2009 p.m.).4 Because
it is “elementary . . . that counsel may not premise arguments on
evidence which has not been admitted,” Johnson v. United
States, 347 F.2d 803, 805 (D.C. Cir. 1965), we find no abuse of
discretion here. See also Hoffman, 964 F.2d at 24 (noting that
“it is improper for either the prosecutor or defense counsel to
make statements as to facts not proven” (internal quotation
marks and alteration omitted)).
At oral argument, Stubblefield conceded that he did not
introduce evidence concerning best practices, but suggested that
knowledge of the best practices for investigating crimes should
be considered part of the “common human experience” of jurors.
Oral Arg. Tr. 7. It is true that nothing precludes an attorney
“from referring to matters of common public knowledge or
human experience” in closing argument. United States v.
Maddox, 156 F.3d 1280, 1282 (D.C. Cir. 1998). But we have
previously held that a prosecutor may not premise a closing
argument on the assumption that police procedures are
“common knowledge.” Id. (holding it improper for the
government to argue without evidence that “police customarily
4
Counsel did question the law enforcement witnesses who
conducted the photo arrays about “best practices,” but they provided
no information and appeared unfamiliar with the term. See, e.g., Trial
Tr. 56-57 (Jan. 27, 2009); Trial Tr. 34-35 (Feb. 2, 2009 p.m.).
9
return car keys having evidentiary value”). The same rule
applies to defense counsel. See Hoffman, 964 F.2d at 25
(holding that the trial court properly barred defense counsel
from arguing “that standard police procedure required
fingerprint analysis,” without offering supporting evidence).
Although defense counsel may not introduce arguments for
which there is no evidentiary support, she “must be permitted to
argue all reasonable inferences from the facts in the record.”
Hoffman, 964 F.2d at 24. The district court permitted
Stubblefield’s counsel to do just that. While she was not
allowed to argue that the officers had failed to implement best
practices in conducting the photo arrays, she was permitted to
argue that the witnesses’ identifications were unreliable. See,
e.g., Trial Tr. 41-50 (Feb. 10, 2009). Similarly, while the court
did not allow counsel to argue that the government was required
to introduce fingerprint or DNA evidence, or that such evidence
was better than eye-witness identifications, it did permit her to
emphasize that the government had failed to introduce DNA or
fingerprint evidence against Stubblefield, and to argue that the
absence of such evidence created reasonable doubt. Id. at 53-59.
We therefore find no abuse of discretion in the district court’s
treatment of counsel’s closing argument.
IV
Finally, Stubblefield contends that the district court erred in
permitting the government to introduce evidence regarding an
uncharged bank robbery in Virginia. The court permitted the
introduction of this evidence under Federal Rule of Evidence
404(b), which bars the admission of “[e]vidence of other crimes
. . . to prove the character of a [defendant] in order to show
action in conformity therewith,” but allows the introduction of
such evidence “for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
10
absence of mistake or accident.” FED. R. EVID. 404(b). Here,
the government maintains that evidence concerning the
uncharged Virginia robbery was admissible because it used that
evidence for such an “other purpose” -- proof of identity.
Stubblefield argues that, to the contrary, the Virginia evidence
was valuable only for the impermissible purpose of proving his
alleged propensity to rob banks.
We need not resolve this dispute because even if the district
court erred, any error was harmless. See United States v.
Johnson, 519 F.3d 478, 483 (D.C. Cir. 2008). Under Federal
Rule of Criminal Procedure 52(a), we may not correct a district
court’s error unless it affected the defendant’s “substantial
rights.” FED. R. CRIM. P. 52(a). “[I]n most cases [this] means
that the error must have been prejudicial: It must have affected
the outcome of the district court proceedings.” United States v.
Olano, 507 U.S. 725, 734 (1993). When, as here, the error did
not involve a constitutional right, it is not prejudicial as long as
“it did not have a ‘substantial and injurious effect or influence
in determining the jury’s verdict.’” United States v. Powell, 334
F.3d 42, 45 (D.C. Cir. 2003) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)).
The government bears the burden of proving the absence of
prejudicial effect, Johnson, 519 F.3d at 483, and it has met that
burden in this case. At trial, the government presented
testimony from numerous witnesses to the six charged bank
robberies, each of whom described a perpetrator who resembled
Stubblefield. The jury also heard that at least one witness to
each of the charged robberies had identified Stubblefield as the
perpetrator from a photo array. Under these circumstances, it is
very unlikely that additional testimony regarding one more
allegedly similar robbery would have a “substantial . . .
influence in determining the jury’s verdict.” That is particularly
so given that, as Stubblefield himself argues, the evidence
11
connecting him to the Virginia robbery was substantially weaker
than that connecting him to the others. None of the prosecution
witnesses testified that the Virginia robber had unusual facial
skin; and the defense called several witnesses of its own who
described a robber who was taller, lighter-skinned, and younger
than Stubblefield. Indeed, we find it hard to understand why the
government went to the trouble of proffering the Virginia
evidence in the first place, given that it was considerably weaker
(and certainly no more gripping) than the evidence of the crimes
charged in the indictment.5
On this record, we conclude that, even if it were erroneous,
the admission of the Virginia evidence was harmless because it
did not have a “substantial and injurious effect or influence” on
the jury’s verdict. Kotteakos, 328 U.S. at 776.
V
For the foregoing reasons, the judgment of the district court
is
affirmed.
5
We further note that the district court gave the jury limiting
instructions designed to ensure that it did not use the evidence of the
uncharged offense to conclude that Stubblefield showed a propensity
to rob banks. See Trial Tr. 99 (Feb. 10, 2009); cf. United States v.
Pettiford, 517 F.3d 584, 590 (D.C. Cir. 2008) (finding no unfair
prejudice under Federal Rule of Evidence 403 because similar limiting
instructions “minimize[d] the danger that the jury would use the
404(b) evidence” to conclude that the defendant had a propensity to
commit the charged offense).