Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-14-2006
USA v. Haas
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1191
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-1191
____________
UNITED STATES OF AMERICA
v.
WILLIAM MARTIN HAAS,
Appellant
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 03-cr-00271)
District Judge: Honorable Arthur J. Schwab
____________
Argued February 13, 2006
Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges.
(Filed June 14, 2006)
Karen S. Gerlach
Renee Pietropaolo (Argued)
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
Attorneys for Appellant
Laura S. Irwin (Argued)
Office of United States Attorney
700 Grant Street, Suite 400
Pittsburgh, PA 15219
Attorney for Appellee
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
William Haas was convicted by a jury in the United States District Court for the
Western District of Pennsylvania of a single count of gun possession in violation of 18
U.S.C. § 922(g). Haas was sentenced to twenty-four years’ imprisonment, and now
appeals his conviction and his sentence. We have jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742. We hold that the District Court misapplied the Federal Rules of
Evidence and allowed evidence to be introduced against Haas that should not have been.
We will vacate Haas’s conviction and remand for a new trial.
I.
Haas was on parole in March 2003, and on the 21st he visited his parole office in
Pittsburgh for a routine urine test. Haas, who had been using heroin, had come a day late
to avoid seeing his assigned parole officer, but to no avail: the officer supervising the test
caught Haas attempting to substitute a vial of urine for his own sample. Haas admitted
that he was using heroin, and was placed under arrest for violating his parole. Several
officers then proceeded to the parole office parking lot to search Haas’s pickup truck. In
the truck sat Paul Daniel Meyers, with a pistol next to him on the seat and ammunition for
2
it in his pockets. In the back of the truck, in a toolbox, the officers found another pistol,
along with a wig, sunglasses, and work gloves.
These latter items took on enhanced importance in light of the story told by Meyers
upon his own arrest for gun possession. Meyers claimed that two days earlier, he and
Haas had robbed Frank and Shirley’s Restaurant in Pittsburgh. Meyers, according to his
story, was the getaway driver, while Haas was the gunman. Haas, wearing the wig,
sunglasses, and gloves, had reached into the drive-through window to rob the cashier,
while Meyers, undisguised, drove the getaway car. Haas, said Meyers, had held the gun
found in the toolbox.
Meyers pled guilty to state robbery and gun possession charges, and served ten
months in jail. Haas, by contrast, was indicted on the federal charges on November 19,
2003. The indictment alleged that Haas possessed the gun “on or about March 21, 2003.”
The November indictment made no mention of the March 19th robbery.
Pursuant to Federal Rule of Evidence 404(b), the government notified Haas that it
planned to introduce the March 19th robbery, as well as a 1991 robbery with a similar
modus operandi for which Haas had been convicted, as evidence of Haas’s possession of
the gun. The government argued that evidence that Haas had used the gun in the
March 19th robbery would disprove Haas’s claim that the gun belonged to Meyers, that
the robbery “completed the story” of Haas’s possession, and that the similarities between
3
the 1991 robbery and the March 19th robbery would refute Haas’s claim of innocence of
the latter.
Haas moved in limine to exclude evidence of both robberies. The government
responded that the 1991 robbery shared a modus operandi with the March 19th robbery,
strengthening Meyers’ testimony that Haas wielded the gun during the March 19th
robbery. Furthermore, the wig found with the gun in the bag in the toolbox could be
linked to Haas by his girlfriend’s testimony and by DNA evidence, and the restaurant
cashier, Manfredo, would testify that the robber who used the gun wore a wig. Manfredo
identified Meyers as the getaway driver, and her description of the other robber’s disguise
and gun was consistent with the items found in Haas’s truck. Thus, argued the
government, the combination of Manfredo’s testimony, Meyers’ testimony, and the wig
combined to make out a possession case against Haas.
The District Court granted Haas’s motion to suppress evidence of the 1991
robbery, but ruled the March 19th robbery admissible. The District Court found that the
March 19th robbery was “intrinsic” evidence of the charged crime. At trial, witnesses
testified in detail about the robbery, and the government laid particular stress on it in
closing.1
1
“Remember Ms. Manfredo’s reaction when I pulled this gun out, handed it to her.
Put it up on the stand. Do you remember her reaction to it? Remember, she gasped,
became uneasy. She immediately wanted to turn away from that gun and not want to look
at it.” (App. 417 (Trial Transcript, July 21, 2004).)
4
At argument, this Court asked the government why it did not charge Haas with
possessing the gun on the 19th, the date of the robbery, since its case rested so heavily on
the events of that day. The government candidly admitted that it could not make out a
case for possession on the 19th because it could not prove that Haas was the gunman in
the robbery. The government’s primary witness, Meyers, was highly impeachable: a
drug addict with a long criminal history, he had been facing the same legal jeopardy as
Haas, but had avoided federal charges altogether and served only ten months. Meyers’s
veracity was admittedly malleable: he testified that he would have told the police
whatever he thought would help him. And the government’s only other witness to the
robbery, Kimberly Manfredo, the cashier, could testify that she had been robbed by two
men, but could identify only Meyers, and not Haas, as one of the robbers. Accordingly,
Haas was charged only with possessing the gun “on or about March 21, 2003,” the date
the gun was found in Haas’s truck.
Without evidence of the robbery, the government would have been forced to argue
constructive possession based on Haas’s control over his truck, and Haas’s defense – that
the gun found in the toolbox belonged to Meyers – might have been effective. There was,
after all, no direct physical evidence, such as fingerprints, connecting Haas to the gun,
and there was considerable doubt as to whether the toolbox had actually been locked as
the government contended. In any event, the keys had been in the truck during the entire
time Haas was in the probation office, so Meyers had ready access to the toolbox.
5
The robbery, in sum, was central to the case against Haas, and we cannot conclude
that it is “highly probable” that its introduction “did not affect the outcome of the case.”
If the District Court’s ruling admitting the robbery as “intrinsic” evidence was error,
therefore, it was not harmless. See Hill v. Reederei F. Laeisz G.M.B.H., 435 F.3d 404,
411 (3d Cir. 2006) (citing Forrest v. Beloit Corp., 424 F.3d 344, 349 (3d Cir. 2005)
(citing McQueeney v. Wilmington Trust Co., 779 F.2d 916, 924 (3d Cir. 1985)).
Nor can we agree with our dissenting colleague that this is a plain error case. Plain
error review applies when an issue is raised on appeal that was not brought to the
attention of the trial court. See, e.g., Collins v. Alco Parking, No. 05-2802 at *5-7, 2006
U.S. App. LEXIS 12525 (3d Cir. May 22, 2006) (Becker, J.). That certainly was not the
case here. Haas filed a motion in limine objecting to the admission of the March 19th
robbery evidence, the government filed a response, and the court considered their
arguments and issued an opinion. We have held repeatedly that the filing and denial of a
motion in limine in such circumstances “relieves a defendant of his need to make
contemporaneous objections in order to preserve an issue on appeal.” United States v.
Mussare, 405 F.3d 161, 167 (3d Cir. 2005) (citing Gov’t of the V.I. v. Joseph, 964 F.2d
1380, 1384-85 (3d Cir. 1992) (citing American Home Assurance Co. v. Sunshine
Supermarket, Inc., 753 F.2d 321, 325 (3d Cir. 1985) (holding issue raised in limine
preserved because “counsel . . .filed a written pretrial motion [on the issue, which] set
forth reasons, including case citations, in support of the request[, and t]he trial court held
6
a hearing at which it considered the arguments of counsel and made a definitive oral
ruling with no suggestion that it would reconsider the matter at trial”))).
II.
The government argues two theories of admissibility on appeal. First, the
government argues that the robbery should come in under Rule 404(b), in order to show,
inter alia, knowledge or absence of mistake with respect to the ownership of the gun.
Second, the government argues that the robbery does not fall under 404(b) at all, because
it was “inextricably intertwined” with Haas’s possession of the gun two days later, and
“completes the story” of the charged crime. As authority for the propositions that
evidence “inextricably intertwined” with, or that “completes the story” of, the charged
offense, does not come under 404(b), the government cites cases from the Eleventh
Circuit.2 However authoritative these cases may be in the Eleventh Circuit, the
interpretation of 404(b) adopted by that Circuit does not control the law of this one.
Our standard of review of evidentiary rulings depends upon the nature of the
ruling. “To the extent that our review of the district court’s Rule 404(b) ruling requires us
to interpret the rules of evidence our review is plenary, but, if the evidence could [be]
admissible in some circumstances, we . . . review the district court’s decision to admit
2
(See App. 106b-c (Government’s Response to Defendant’s Motion in Limine to
Exclude Evidence) (citing United States v. Weeks, 716 F.2d 830, 832 (11th Cir. 1983);
United States v. Fortenberry, 971 F.2d 717, 721 (11th Cir. 1992); United States v. Costa,
691 F.2d 1358, 1361 (11th Cir. 1982)).)
7
evidence of prior ‘bad acts’ under Rule 404(b) for an abuse of discretion.” United States
v. Daraio, No. 05-2460 (3d Cir. Apr. 10, 2006) (citing United States v. Givan, 320 F.3d
452, 460 (3d Cir. 2003)). This case implicates both the District Court’s interpretation of
the rule and its evaluation of evidence under the rule.
We considered the “inextricably intertwined” doctrine and the “completes the
story” doctrine in United States v. Cross, 308 F.3d 308 (3d Cir. 2002). We declined the
government’s invitation to adopt either doctrine, calling them, respectively, “a definition
that elucidates little,” and “a definition so broad that it renders 404(b) meaningless.” Id.
at 320. Instead, we insisted on a significantly closer connection for exemption from
404(b). Rather than “intertwined,” evidence must “directly prove the charged [offense]”
to escape the rule. Id.
Cross was a conspiracy case, and thus the scope of the acts which constituted the
offense was much broader than in this case. The defendants, state court personnel, were
charged with conspiring to fix cases to engineer guilty verdicts. There was evidence that
they also conspired to fix some cases in defendants’ favor, and the government argued
that this evidence should be exempt from 404(b) on the grounds that it “completed the
story” of the defendants’ crimes. We held that this latter evidence “d[id] not directly
prove” the charged offense, “and thus by any definition [was] not ‘intrinsic’ to the
[charged] offense.” Id.
8
In this case, the District Court stated that it “agreed with the government” that the
robbery on the 19th was “direct, intrinsic evidence of [Haas’s] possession of the .357
Magnum.” Under Cross, evidence is “intrinsic” if it directly proves the charged offense.
The charged offense was possession of the gun on the 21st, not the 19th. Whatever
probative value the evidence about Haas’s activities on the 19th may have had, it did not
directly prove that Haas possessed the gun on the 21st. To hold otherwise would be to
strip the words “directly prove” of all meaning. The District Court erred, therefore, and
the only route to admissibility for the robbery evidence is through 404(b).
Accordingly, we will consider four factors: whether the robbery evidence (1) was
introduced for a permissible purpose, (2) was relevant, (3) satisfied Rule 403 (i.e., was
not substantially more prejudicial than probative), and (4) was accompanied by a limiting
instruction that the jury not use the evidence for an improper purpose. See Cross, 308
F.3d at 321. The first two steps are straightforward. The robbery evidence satisfied at
least two of the legitimate purposes suggested in 404(b): knowledge, and absence of
mistake. If Haas had used the gun two days earlier while wearing gloves and a wig, it is
more likely that its presence in his truck, in a bag with gloves and a wig, was due to its
being his gun, than to its having been secreted there without Haas’s knowledge. Because
the robbery evidence makes it more probable that the gun was Haas’s, the robbery
evidence is relevant. See Fed. R. Evid. 401.
9
The second two steps are more problematic. The District Court did not balance the
probative value of the robbery evidence against its prejudicial effect as required under
Rule 403. It admitted the evidence solely upon the determination that it was “intrinsic.”
Though this determination was error, we emphasize that even “intrinsic” evidence is
subject to Rule 403 balancing. As we explained in Cross,
Federal Rule of Evidence 403 provides that “evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” It creates a presumption of admissibility. United
States v. Universal Rehabilitation Servs. (PA), 205 F.3d 657, 664 (3d Cir.
2000) (en banc) (citations omitted). Evidence cannot be excluded under
Rule 403 merely because its unfairly prejudicial effect is greater than its
probative value. Rather, evidence can be kept out only if its unfairly
prejudicial effect “substantially outweighs” its probative value. Fed. R.
Evid. 403. As one example, when evidence is highly probative, even a
large risk of unfair prejudice may be tolerable.
Cross, 308 F.3d at 323. Even highly probative evidence is subject to balancing. Of
course, as we noted, the more probative the evidence, the greater the degree of prejudice
that can be tolerated. But the court is still obligated to undertake that balancing inquiry.
The failure to do so here was error.3
Finally, no limiting instruction was given. It does not appear from the record that
one was requested, and Haas conceded at oral argument that he did not request an
instruction, as contemplated by Rule 105. However, we agree with Haas that in light of
3
We leave it to the District Court on remand to conduct this balancing in the first
instance.
10
the District Court’s ruling that the robbery evidence was “intrinsic” to the charged offense
and thus exempt from 404(b), it would have been futile to request a limiting instruction
under that rule.
We think Haas is entitled to a trial in which his attorney can seek to limit
prejudicial evidence under the Federal Rules of Evidence. On remand, the robbery
evidence, if proffered, will be considered under 404(b), and the District Court will
balance its probative value against its prejudicial effect. If requested, the District Court
will give a limiting instruction restricting consideration of the robbery evidence to any
permissible purposes for which it was admitted.
III.
For the foregoing reasons, we will vacate the judgment of conviction and sentence,
and remand the case to the District Court for proceedings consistent with this opinion.4
Barry, Circuit Judge, dissenting
This is, in my view, a “plain error” case in which, if error there be, it surely is not
“plain.” I respectfully dissent.
Twelve days before trial, the District Court ruled on a motion in limine that the
robbery of Frank and Shirley’s was admissible as direct evidence that Haas had violated
4
Because we are vacating Haas’s conviction, his sentencing-related claims are
moot, and we do not address them.
11
18 U.S.C. § 922(g)(1), the crime with which he was charged. No limiting instruction was
thereafter sought – not pretrial, not during trial. Neither was any objection made to the
superseding indictment with its “sentencing allegations,” allegations calling for the same
evidence of the robbery: the testimony of Meyers and Manfredo that the wig, sunglasses,
gloves, and, indeed, the gun found in Haas’s truck on March 21 were those used at Frank
and Shirley’s two days earlier.
Given these failures, our review is for plain error. I see no error, much less error
that is “clear” or “obvious,” and I surely do not see error that “affected the outcome of the
district court proceedings” or that “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732-36 (1993)
(citation and quotation marks omitted). I note, in this connection, that the case against
Haas, even aside from the evidence of which he now complains, was powerful. His DNA
was on the wig and the sunglasses found with the gun in his truck on March 21, and his
explanation at trial, at least in my view, buried him. I would affirm the judgment of
conviction and sentence.
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