United States v. Clay

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0008p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 09-5568
v.
,
>
-
Defendant-Appellant. -
GARY CLAY,
-
N
Appeal from the United States District Court
for the Eastern District of Tennessee of Chattanooga.
No. 07-00147-001—Harry S. Mattice, Jr., District Judge.
Argued: July 21, 2011
Decided and Filed: January 10, 2012
Before: MOORE and KETHLEDGE, Circuit Judges; MARBLEY, District Judge.*

_________________

COUNSEL
ARGUED: Christopher P. Keleher, QUERREY & HARROW, LTD., Chicago, Illinois,
for Appellant. Scott A. Winne, ASSISTANT UNITED STATES ATTORNEY,
Chattanooga, Tennessee, for Appellee. ON BRIEF: Christopher P. Keleher,
QUERREY & HARROW, LTD., Chicago, Illinois, M. Keith Davis, AUSTIN, DAVIS
& MITCHELL, Dunlap, Tennessee, for Appellant. Zachary C. Bolitho, ASSISTANT
UNITED STATES ATTORNEY, Knoxville, Tennessee, for Appellee.
MARBLEY, D. J., delivered the opinion of the court, in which MOORE, J.,
joined. KETHLEDGE, J. (pp. 21–25), delivered a separate dissenting opinion.

*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.

1
No. 09-5568 United States v. Clay Page 2

_________________

OPINION
_________________

ALGENON L. MARBLEY, District Judge. Defendant-Appellant Gary Clay
appeals his convictions of carjacking and brandishing a firearm, contending that the
district court erred in admitting evidence of prior bad acts, in denying his Rule 29 motion
for acquittal, and in denying his motion for a downward variance at sentencing. Because
the district court erred in admitting evidence of prior bad acts and the errors were not
harmless, we REVERSE Clay’s convictions and REMAND for a new trial.

I. BACKGROUND

In 2007, Kathryn White worked for the Internal Revenue Service in Chattanooga,
Tennessee. When she arrived at work the morning of November 1, an African American
male approached her as she exited her white 2003 Pontiac Grand Prix. The man pointed
a silver semi-automatic handgun at her and ordered her out of the car. A co-worker,
Ramona Means, pulled into the parking lot a few minutes later. When the man saw
Means, he turned and pointed the gun at her car. He looked back and forth between
White and Means, and threatened to “put a cap in [Means]” if White did not start her car.
White complied, and the man drove away in the Grand Prix.

The FBI assigned Officer Matthew Hennessee to the case. He soon learned that
about an hour after the car was stolen someone attempted to use White’s stolen Bank of
America and Conoco Phillips card at a First Tennessee Bank ATM. The Bank’s
surveillance video showed that a unshaven, African American man wearing a red and
white patterned shirt and a hooded jacket had attempted to use the cards. Officer
Hennessee obtained still photos from the ATM video, compared them to Gary Clay’s
driver’s license photo, and determined that they were the same person.

After days of searching, officers located the Grand Prix in the parking lot of the
East Lake Courts housing complex. They conducted surveillance on the vehicle and
determined the apartment with which the car was associated. They went to that
No. 09-5568 United States v. Clay Page 3

apartment and were met by two women, Miranda Abernathy and Valerie Hancock. Clay
was in the apartment and arrested without incident.

Hancock, the lessee, consented to a search of the apartment. Officers located
several items, including the keys to the Grand Prix and items reported stolen in a recent
robbery. Inside the Grand Prix, officers found a compact disc containing pictures of
Clay with friends and family. In several of the pictures, he was wearing a red and white
patterned shirt.

Officer Hennessee traced the items reported stolen to a robbery of two vehicles
in a Cricket Communications parking lot. The first vehicle belonged to Steve Moser.
A handgun, handgun case, and Motorola cell phone were missing from his truck after
the break-in. While police found the case in bushes near the lot, they never recovered
the gun. The second vehicle belonged to Ronald Archey. A checkbook and portable
DVD player were missing from his car. The police located these two items in the
apartment where they found Clay. A surveillance video from the lot showed an African
American man wearing a red and white patterned shirt breaking into the cars and
walking away with the handgun case. The red and white shirt was similar to the shirt on
the compact disc found in the Grand Prix and the shirt worn in the video from the First
Tennessee Bank.

A grand jury charged Clay with carjacking in violation of 18 U.S.C. § 2119 and
brandishing a firearm during a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). The case proceeded to trial, and the district court made two pre-trial
evidentiary rulings that are at issue in this appeal. First, Clay sought to exclude evidence
of an assault he had committed against Karissa Marshall in 2006. The district court
admitted Marshall’s testimony under Rule 404(b) to show Clay’s specific intent, but
prevented the government from informing the jury that Clay had been convicted of
assaulting Marshall. The court also agreed to provide a limiting instruction before
No. 09-5568 United States v. Clay Page 4

Marshall’s testimony.1 Second, Clay sought to exclude any evidence relating to the theft
of Moser’s handgun from his truck. The district court admitted evidence of the
uncharged theft under both the res gestae doctrine and 404(b), and issued a limiting
instruction prior to the evidence’s introduction.2

At trial, Officer Hennessee testified about his investigation. Abernathy, who
lived in the apartment, testified that she saw Clay with a semi-automatic handgun during
the general time period of the offense. She also testified that she saw Clay driving a
Pontiac Grand Prix during this same time period, and when shown a picture of White’s
car, stated, “[t]hat’s the car he drove.” Means, a parking lot witness, could not positively
identify the suspect. White died in a car accident before the trial. There is no indication
in the record that she made any prior identifications. At the close of the government’s
case, Clay made a Rule 29 motion. The district court denied the motion.

Clay did not testify, but he presented four witnesses. Gail Evans, an IRS
employee who was also in the parking lot that morning, testified that she had previously
described the carjacker as 5’8,” clean shaven, and of medium complexion. A day after
the carjacking, she reviewed a photographic lineup, which included Clay. She identified
an individual that she was 50% sure was the person she saw during the carjacking. It
was not Clay. Evans also testified that a week before trial, she was shown a photograph
of two men standing next to each other: Clay and his friend Adarius Smith. She
identified Smith, who is 5’8,” as the carjacker.

The evidence established that Clay was between 6’1” and 6’2.” Clay’s brother,
Gregory Clay, testified that Clay is right-handed, has two tattoos, and always wears a
mustache. On cross-examination, he was shown letters that Clay had written from jail

1
The district court instructed the jury that Marshall’s testimony was “to shed light, if you believe
her testimony sheds any light, on whether [the defendant] had the requisite intent to cause death or serious
bodily harm in connection with the November 1, 2007 incident, not the incident that Ms. Marshall is going
to testify about.”
2
The district court instructed the jury that the video was admitted for the limited purpose of
showing how Clay might have obtained the handgun, as well as to show preparation and identity. The
court further explained that Clay was not on trial for stealing the handgun or anything else from the truck,
but only for the carjacking, and so the jury was not to consider the evidence for propensity, but only to
consider it for the limited purposes described.
No. 09-5568 United States v. Clay Page 5

to Jessica Starkey, the mother of his child. In the letters, Clay asked Ms. Starkey to
construct an alibi for him and to blame the carjacking on Adarius Smith.

The jury found Clay guilty on both counts. The court sentenced him to 360
months of imprisonment.

II. LAW AND ANALYSIS

A. Standard of Review

A district court determines the admissibility of evidence under Rule 404(b)
pursuant to a three-step process.

First, the district court must decide whether there is sufficient evidence
that the other act in question actually occurred. Second, if so, the district
court must decide whether the evidence of the other act is probative of
a material issue other than character. Third, if the evidence is probative
of a material issue other than character, the district court must decide
whether the probative value of the evidence is substantially outweighed
by its potential prejudicial effect.

United States v. Jenkins, 345 F.3d 928, 937 (6th Cir. 2003) (citing United States v.
Haywood, 280 F.3d 715, 719–20 (6th Cir. 2002)).

We typically review a district court’s evidentiary rulings for an abuse of
discretion. General Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997); United States v.
Ganier, 468 F.3d 920, 925 (6th Cir. 2006). Because the district court uses a multi-step
analysis in determining whether to admit Rule 404(b) evidence, however, we also utilize
a three-step process in reviewing these determinations. First, we review for clear error
the factual determination that other acts occurred. Second, we review de novo the legal
determination that the acts were admissible for a permissible 404(b) purpose. Third, we
review for abuse of discretion the determination that the probative value of the evidence
is not substantially outweighed by unfair prejudicial impact. United States v. Hardy, 228
F.3d 745, 750 (6th Cir. 2000).

Finally, this Court reviews de novo a district court’s denial of a Rule 29 motion
for judgment of acquittal based on the insufficiency of the evidence. United States v.
No. 09-5568 United States v. Clay Page 6

Humphrey, 279 F.3d 372, 378 (6th Cir. 2002). The Court must construe the evidence in
the light most favorable to the government, and then determine whether any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Hofstatter, 8 F.3d 316,
324 (6th Cir. 1993), cert. denied, 510 U.S. 1131 (1994). A defendant “bears a very
heavy burden” in a sufficiency of the evidence challenge. United States v. Davis, 397
F.3d 340, 344 (6th Cir. 2005) (internal citations omitted).

B. Other Act: Assault

Federal Rule of Evidence 404(b) allows the government to introduce evidence
of “other crimes, wrongs, or acts” committed by the defendant so long as the evidence
is not used merely to show propensity and if it “bears upon a relevant issue in the case.”
Hardy, 228 F.3d at 750. The Rule contains a non-exhaustive list of possible purposes:
“motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Fed. R. Evid. 404(b). Such evidence “is not admissible to prove
the character of a person in order to show action in conformity therewith.” Id.

Clay argues that the district court erred in admitting the evidence of the
September 2006 assault of Karissa Marshall pursuant to Rule 404(b). At trial, Marshall
testified that when she was 15, a car driven by Clay pulled alongside her as she was
walking to a bus stop and asked her if she wanted a ride. When she resisted, the driver
got out of the car, grabbed her, and hit her in the face with a gun. The blow knocked her
unconscious, and she told the jury, “I thought I was going to die that day.”

1. Sufficient Evidence That Other Acts Occurred

First, we must review for clear error the district court’s determination that there
is “sufficient evidence to support a finding by the jury that the defendant committed” the
assault. Huddleston v. United States, 485 U.S. 681, 685 (1988). The assault of Marshall
is undisputed, so no discussion is needed as to step one.
No. 09-5568 United States v. Clay Page 7

2. Permissible 404(b) Purpose

Second, we review de novo whether the evidence was admitted for a proper
404(b) purpose. It is well-established that this determination is a question of law. See
United States v. Ayoub, 498 F.3d 532, 548 (6th Cir. 2007), cert. denied, 129 S. Ct. 37
(2008). This Circuit has taken the position that “in reviewing a trial court’s evidentiary
determinations, this court reviews de novo the court’s conclusions of law.” United
States v. McDaniel, 398 F.3d 540, 544 (6th Cir. 2005). The court in McDaniel
confirmed that “this standard is consistent with the Supreme Court’s admonition in
General Elec. Co. v. Joiner, 522 U.S. 136 (1997) that we review evidentiary decisions
for an abuse of discretion, because it is an abuse of discretion to make errors of law or
clear errors of factual determination.” Id.

Indeed, this Circuit has been consistent in adopting McDaniel’s interpretation of
Joiner. See, e.g., United States v. Geisen, 612 F.3d 471, 495 (6th Cir. 2010), cert.
denied, 131 S. Ct. 1813 (2011) (reviewing the district court’s legal determinations de
novo and its factual decisions for clear error, holding “that these two standards of review
are not in conflict as ‘it is an abuse of discretion to make errors of law or clear errors of
factual determination’ in evidentiary rulings”) (citing McDaniel); United States v.
Martinez, 588 F.3d 301, 309 (6th Cir. 2009) (following McDaniel’s approach in
“reviewing de novo the court’s conclusions of law,” reasoning that “[t]o the extent the
district court’s admission of the Boswell video constitutes an error of law, such error is
an abuse of discretion”); United States v. Baker, 458 F.3d 513, 517 (6th Cir. 2006)
(adopting McDaniel’s interpretation of Joiner by “point[ing] out that these two standards
of review are not in fact inconsistent because ‘it is an abuse of discretion to make errors
of law or clear errors of factual determination.’”) (citations omitted).

The dissent urges us instead to apply an abuse of discretion standard in deference
to the district court. The dissent grounds its position in a reading of Joiner that has not
been adopted in this Circuit and is in derogation of McDaniel and its progeny. The
dissent then bootstraps this insular reading of Joiner, relying on United States v. Jenkins,
which cites Joiner’s holding that “all evidentiary rulings are subject to abuse-of-
No. 09-5568 United States v. Clay Page 8

discretion review” but does not discuss its standard of review of the trial court’s legal
determination of the proper 404(b) purpose, 593 F.3d 480, 484 (6th Cir. 2010), and
Trepel v. Roadway Exp. Inc., which held that after Joiner, hearsay evidentiary rulings
must be reviewed for an abuse of discretion. 194 F.3d 708 (6th Cir. 1999). The
dissent’s cases, however, are not apposite to the McDaniel line of cases. First, Jackson
simply recites Joiner’s general abuse of discretion standard for evidentiary
determinations, which McDaniel follows and so do we. Secondly, McDaniel simply
took over where Trepel left off by clarifying that the abuse of discretion review of
evidentiary determinations which Joiner commands is not inconsistent with the court’s
abiding duty to review questions of law de novo. McDaniel, 398 F.3d at 544, supra.
The dissent wishes to create a split in our precedent where one need not exist. It is
unnecessary to address the remainder of the dissent’s arguments as they are predicated
on the heightened deference it grants to the district court’s evidentiary decisions under
the erroneous standard of review. This Court, accordingly, reviews the district court’s
determination of a proper 404(b) purpose de novo.

The federal carjacking statute, 18 U.S.C. § 2119, requires the government to
prove that a defendant had the specific intent to cause serious bodily harm or death when
he or she took the victim’s car. United States v. Fekete, 535 F.3d 471, 476 (6th Cir.
2008). In other words, the government must “prove beyond a reasonable doubt that the
defendant would have at least attempted to seriously harm or kill the driver if that action
had been necessary to complete the taking of the car.” Id. at 477 (quoting Holloway v.
United States, 526 U.S. 1, 11–12 (1999)). In order to satisfy this requirement, the
government sought to use the assault of Marshall to show that Clay had the specific
intent to cause serious bodily harm or death to White.

As a threshold matter, we have approved of the admission of other acts evidence
to show specific intent in certain circumstances. See United States v. Johnson, 27 F.3d
1186, 1192 (6th Cir. 1994), cert. denied, 513 U.S. 1115 (1995) (holding that “where
there is thrust upon the government, either by virtue of the defense raised by the
defendant or by virtue of the elements of the crime charged, the affirmative duty to prove
No. 09-5568 United States v. Clay Page 9

that the underlying prohibited act was done with a specific criminal intent, other acts
evidence may be introduced under Rule 404(b)”). Most frequently, we admit this
evidence in cases involving drug offenses such as possession with intent to distribute or
conspiracy to distribute, or when the charged offenses are identical. See, e.g., United
States v. Love, 254 F. App’x 511, 515–20 (6th Cir. 2007) (defendant’s prior drug
convictions admissible to show intent to participate in a conspiracy where defendant had
pleaded not guilty to engaging in a conspiracy to distribute cocaine); United States v.
Conteh, 234 F. App’x 374, 384–85 (6th Cir. 2007) (finding no error in the admission of
testimony about defendant’s Colorado bank fraud scheme in a prosecution for Ohio bank
fraud scheme); Johnson, 27 F.3d at 1192–93 (finding no error in the admission of other
acts of possession with intent to distribute in a prosecution for the same offense); United
States v. Pierce, 16 F.3d 1223 (Table), 1993 WL 513950, at *3 (6th Cir. 1993) (finding
no error in the admission of evidence to show intent of past sexual abuse in prosecution
of attempt to commit sexual abuse when victim was the same); United States v. Crachy,
800 F.2d 83, 87 (6th Cir. 1986) (finding no error in the admission of evidence of
conversations about prior acts relating to counterfeit bills in prosecution of possession
of counterfeit money and delivery of counterfeit money).

We have yet to consider, however, whether prior bad acts are admissible to show
specific intent to cause serious bodily harm or death in a carjacking case. Other circuits
have found that prior acts may be admissible to show specific intent to cause serious
bodily harm or death in a carjacking case in narrow circumstances, such as when the
prior acts occur nearly simultaneously with the charged offense or when they involve the
same victim. See United States v. Rodriguez-Berrios, 573 F.3d 55, 63–64 (1st Cir. 2009)
(evidence about prior abuse and stalking of carjacking victim was admissible to show
specific intent in carjacking offense); United States v. Basham, 561 F.3d 302, 328 (4th
Cir. 2009) (threats of violence made during crime spree were admissible to show specific
intent to kill or to cause serious harm to victim of carjacking, which occurred during the
spree).
No. 09-5568 United States v. Clay Page 10

Relying on these cases, the government argues that the assault is admissible to
prove specific intent because it shows that Clay could develop the intent to cause serious
bodily harm to innocent strangers who resist his demands. Considering both the case
law and the purposes of Rule 404(b), this sweeps too broadly and risks eroding the
Rule’s very purpose. It perches perilously close to proving specific intent by showing
propensity, as it suggests that a person who engages in bad behavior toward another is
likely to do so again. The two offenses at issue—assault and carjacking—are too
unrelated and too far apart in time to be probative of whether Clay had the specific intent
to do harm to White; they merely show the criminal character of Clay. See United States
v. Bell, 516 F.3d 432, 443 (6th Cir. 2008) (holding that Rule 404(b) evidence is
probative of intent only “when the prior [acts] were part of the same scheme or involved
a similar modus operandi as the present offense”). While a prior act may be relevant in
other circumstances to show specific intent in a carjacking, the assault of Marshall is not
admissible for a permissible 404(b) purpose in this case. The district court erred in
admitting the evidence.

3. Prejudicial/Probative Balancing

The district court admitted the evidence of the assault for an improper purpose.
Our 404(b) analysis does not have to proceed, but in order to firmly establish that error
occurred, we continue to the final step.

The third step in the Rule 404(b) analysis requires us to determine whether the
unfair prejudicial impact of the evidence substantially outweighs its probative value.
Evidence of other bad acts undoubtedly has a powerful impact on a juror’s mind. As we
have previously explained, “[w]hen prior acts evidence is introduced, regardless of the
stated purpose, the likelihood is very great that the jurors will use the evidence precisely
for the purpose it may not be considered: to suggest that the defendant is a bad person,
a convicted criminal, and that if he “‘did it before he probably did it again.’” United
States v. Johnson, 27 F.3d 1186, 1193 (6th Cir. 1994), cert. denied, 513 U.S. 1115
(1995). While a limiting instruction can minimize the prejudicial impact of prior
No. 09-5568 United States v. Clay Page 11

criminal acts, it is not “a sure-fire panacea for the prejudice resulting from needless
admission of such evidence.” Haywood, 280 F.3d at 724.

This evidence was of slim probative value. In making this evaluation, we
consider whether there are alternate sources of proving the same facts. See Haywood,
280 F.3d at 723; see also United States v. Merriweather, 78 F.3d 1070, 1077 (6th Cir.
1996) (“One factor in balancing unfair prejudice against probative value under Rule 403
is the availability of other means of proof.”). Here, Means testified about the
perpetrator’s verbal threats and use of the gun during the carjacking. Thus, the evidence
of the assault was not necessary to show that Clay had specific intent.

By contrast, this evidence was extremely prejudicial. The prejudice must be
unfair; it must do more than “paint[] the defendant in a bad light.” United States v.
Sanders, 95 F.3d 449, 453 (6th Cir. 1996). In this case, the evidence of the assault is so
unrelated to the charged offense that it creates too much of a risk that the jury will
generalize from prior examples of bad character. It goes beyond the elements of proof
essential to the government’s case and may lure the jury into making its determination
of guilt or innocence on proof unrelated to the carjacking.

Balancing is highly discretionary, and thus the district court “is afforded great
deference.” Bell, 516 F.3d at 445. Despite this substantial deference, the district court
abused its discretion in admitting the evidence of the assault. As explained supra, this
evidence is not particularly probative of the charged offense. Nor is it necessary to
prove that Clay had specific intent to harm White. By contrast, the unfair prejudicial
impact of the evidence was high. As empirical studies have shown, evidence of prior
bad acts influences factfinders even when the court gives a limiting instruction. See
United States v. Hardy, 643 F.3d 143, 161 (6th Cir. 2011) (Cole, J., dissenting) (stating
that “empirical studies confirm that ‘juries treat prior bad acts evidence as highly
probative of the charged crime’”) (quoting United States v. Amaya-Manzanares, 377
F.3d 39, 49 (1st Cir. 2004) (Torruella, J., dissenting)); see also Abraham P. Ordover,
Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a),
38 Emory L.J. 135, 175–78 (1989). In this case, the differing nature of the crimes
No. 09-5568 United States v. Clay Page 12

suggested that Clay was a repeatedly violent offender. This created a serious risk that
the jury used the evidence for precisely the reasons it was counseled not to: that Clay
was a bad person and a threat to society. Thus, the unfair prejudicial impact of the
evidence substantially outweighed its slim probative value.

As the evidence of the assault was not admissible for a permissible purpose under
Rule 404(b) and its unfair prejudicial impact outweighed its probative value, we find that
the district court erred in admitting the evidence.

C. Prior Act: Uncharged Handgun Theft

Clay argues that the district court erred in admitting evidence of the theft of the
handgun from Moser’s car. The court admitted the evidence under the res gestae
exception and under Rule 404(b) to show preparation and identity.

1. Res Gestae

We have recognized the admissibility of res gestae, or background evidence, in
limited circumstances when the evidence includes conduct that is “inextricably
intertwined” with the charged offense. United States v. Hardy, 228 F.3d 745, 748 (6th
Cir. 2000). While this rule is an exception to Rule 404(b), see id. at 748, it does not
allow a party to evade 404(b) by introducing any and all other act evidence, see United
States v. Buentello, No. 08-2199, 2011 WL 1838698, at *4 (6th Cir. May 16, 2011)
(noting that “the concerns that prompted Rule 404(b) are very real, and a party may not
rely on [the res gestae] exception as a backdoor to circumvent its goals”). The principle
contains severe limitations as to “temporal proximity, causal relationship, or spatial
connections” among the other acts and the charged offense. Hardy, 228 F.3d at 749.
Examples of general categories that may satisfy these requirements include evidence that
“is a prelude to the charged offense, is directly probative of the charged offense, arises
from the same events as the charged offense, forms an integral part of a witness’s
testimony, or completes the story of the charged offense.” Id. at 748.

Here, Clay was charged with carjacking and brandishing a firearm during and in
relation to the carjacking. In order to convict on both counts, the government had to
No. 09-5568 United States v. Clay Page 13

establish that Clay did in fact brandish a firearm. Eyewitness testimony established that
the carjacker used a silver semi-automatic handgun during the incident. Another
witness, Abernathy, testified that she saw Clay with a semi-automatic handgun either the
day of or the day before the carjacking. The government argues that the evidence of the
uncharged theft was necessary to complete the story of the offense and explain how Clay
obtained the handgun.

This argument is logically flawed. There is no evidence that firmly establishes
a relationship between the carjacking and the theft. The gun stolen from Moser’s car
was never recovered, and nothing confirms that stolen weapon was the gun Abernathy
saw with Clay, or the gun used during the carjacking. Without confirmation that the gun
is the same, the car theft is neither a prelude to the charged offense, nor probative of it.
It does not arise from the same events as the carjacking; in fact, it is a completely
separate and distinct offense that is not essential for providing a “coherent and
intelligible description of the charged offense.” McCormick on Evidence § 190 (6th ed.
2006).

The government relies on two cases in which evidence of prior acts involving a
gun were admitted pursuant to the res gestae exception to show that the defendant had
access to a gun in the charged offense. In both of these cases, there was no dispute that
the defendant or the weapon were the same. See United States v. Brown, 22 F. App’x
102, 103 (4th Cir. 2001) (per curiam) (holding that, in a prosecution for possession of
a firearm by a convicted felon, defendant’s assault with the firearm the evening before
the charged offense was necessary to “complete the story and prove that Brown
possessed the gun”); United States v. Mitchell, 613 F.2d 779, 782 (10th Cir. 1980)
(holding that, in a prosecution for possession of an unregistered firearm, evidence of an
armed robbery committed with the firearm was admissible). In other words, there was
a confirmed link between the prior act and the charged offense. Here, the gun has never
been found and no such link exists. Thus, the trial court abused its discretion in
admitting the evidence of the theft under the res gestae exception.
No. 09-5568 United States v. Clay Page 14

2. Rule 404(b)

Having determined that the video could not have been admitted under the res
gestae exception, we now examine whether it was properly admitted under Rule 404(b)
for the purposes of showing preparation and identity. As explained supra, this analysis
requires a three-part test.

a. Sufficient Evidence That Other Acts Occurred

First, we must determine whether there is “sufficient evidence to support a
finding by the jury that the defendant committed” the other act. Huddleston v. United
States, 485 U.S. 681, 685 (1988). The government argues that this factor does not merit
any discussion because there is no dispute that the handgun was stolen from Moser’s
truck three days before the carjacking. This is not the issue before us; the issue is not
whether the theft occurred but whether there is sufficient evidence that Clay committed
the act. Clay was never charged with this offense. There are two pieces of evidence that
link him to the crime. One, the surveillance video shows that a man in a red and white
patterned shirt robbed the cars, and police recovered photos of Clay wearing a similar
red and white patterned shirt. Two, items stolen from Archey’s car were found in the
apartment Clay was located in. These links are tenuous at best, and even more tenuous
because the parties dispute whether the evidence from Archey’s car is admissible. For
the purposes of step one, however, the district court did not clearly err in finding that a
jury could reasonably conclude that Clay stole the handgun from the car.

b. Permissible 404(b) Purpose

Second, we must determine whether the evidence relating to the theft of the
handgun was offered for the proper purposes of preparation and identity. Looking to
preparation first, we have allowed the admission of other acts evidence to show how the
defendant obtained items used in the charged offense. See United States v. Hembree,
312 F. App’x 720, 724 (6th Cir. 2008). In Hembree, we approved the admission of
evidence under 404(b) that the defendant was driving a stolen car when arrested. Id. In
that case, however, it was clear that the stolen car was the car used during the offense.
No. 09-5568 United States v. Clay Page 15

Here, the government asked the jury to infer that Clay stole the handgun from Moser’s
car, and then infer that Clay used that handgun in the carjacking. Even if the jury
reaches the first conclusion, there is no evidence that would enable them to reach the
second. The fact that both guns were silver is not enough. Guns do not come in a wide
variety of colors. This piling of inference upon inference is calling for exactly the kind
of propensity determination that Rule 404(b) was intended to prevent. See Huddleston,
485 U.S. at 689 (noting that “the Government may [not] parade past the jury a litany of
potentially prejudicial similar acts that have been established or connected to the
defendant only by unsubstantiated innuendo”). Thus, the evidence of the theft was not
properly admitted as evidence of preparation.

Turning next to identity, Rule 404(b) allows the introduction of other acts
evidence to show identity, “provided they are ‘of sufficient distinctive similarity’ with
the charges in the indictment to ‘create a pattern or modus operandi.’” United States v.
Allen, 619 F.3d 518, 524 (6th Cir. 2010) (quoting United States v. Perry, 438 F.3d 642,
648 (6th Cir. 2006)). The government argues that the evidence relating to the theft of
the handgun shows that Clay was responsible for the theft, which in turn shows that he
committed the carjacking. This argument contains the same flaw as the argument about
preparation: there is no evidence that the handgun stolen from Moser’s truck was used
in the carjacking. Thus, evidence from the theft of the handgun does not help establish
the identity of the carjacker. While the government suggests that the red and white
patterned shirt connects both offenses and shows that the same man was responsible,
without a substantiated evidentiary link or shared methodology, a mass-produced shirt
does not establish a unique identity. In sum, the crimes are not so similar that they
establish a pattern or distinctive modus operandi. See Perry, 438 F.3d at 648 (affirming
admission of other acts evidence that established a distinctive “signature”); Johnson, 27
F.3d at 1194 (noting that other acts evidence is admissible if the perpetrator employed
“the same modus operandi or method of operation”). Accordingly, the evidence of the
theft was not properly admitted for evidence of identity.
No. 09-5568 United States v. Clay Page 16

c. Prejudicial/Probative Balancing

The district court erred in admitting evidence of the theft of the handgun for the
purposes of establishing preparation and identity. The Court’s 404(b) analysis does not
have to proceed, but in order to establish firmly that error occurred, we will continue
with the final step.

For the most part, the analysis here mirrors the preceding analysis of the assault.
As with the assault, the evidence of the theft of the handgun was of limited probative
value. Additionally, there was other, less prejudicial, evidence admitted in the trial that
Clay had possession of a gun. Abernathy testified that she saw Clay with a handgun
before the carjacking occurred. If the government’s goal was to show that Clay had
obtained a handgun before the charged offense, it successfully achieved that goal with
Abernathy’s testimony.

The prejudicial impact of the evidence was high. There was a great risk that the
evidence suggested that Clay was a repeatedly violent offender. This risk increased the
possibility that the jury used the evidence for precisely the reasons it was counseled not
to: that Clay was a bad person and a threat to society. Thus, the prejudicial impact of the
evidence substantially outweighed its slim probative value.

As the evidence of the theft was not admissible pursuant to the res gestae
doctrine or for a permissible purpose under Rule 404(b) and because its prejudicial
impact outweighed its probative value, we find that the district court erred in admitting
the evidence of the theft of the handgun.

D. Harmless Error

Although the district court erred in admitting the evidence of the assault and the
theft of the handgun, the rulings are “‘harmless unless it is more probable than not that
the error materially affected the verdict.’” United States v. Childs, 539 F.3d 552, 559
(6th Cir. 2008) (quoting United States v. Daniel, 134 F.3d 1259, 1262 (6th Cir. 1998)).
In other words, “[a]n error is harmless unless one can say, with fair assurance that the
error materially affected the defendant’s substantial rights—that the judgment was
No. 09-5568 United States v. Clay Page 17

substantially swayed by the error.” United States v. Murphy, 241 F.3d 447, 452 (6th Cir.
2001). Our focus is not “with whether there was sufficient evidence on which [the
defendant] could have been convicted without the evidence complained of,” but rather
the “question is whether there is a reasonable possibility that the evidence complained
of might have contributed to the conviction.” United States v. DeSantis, 134 F.3d 760,
769 (6th Cir. 1998) (internal quotations omitted). In particular, the admission of
evidence of prior bad acts is “‘harmless error’ if the record evidence of guilt is
overwhelming, eliminating any fair assurance that the conviction was substantially
swayed by the error.” United States v. Hardy, 643 F.3d 143, 153 (6th Cir. 2011).

In this case, there is a high probability that the wrongly admitted evidence of the
assault and the theft contributed to Clay’s conviction. As explained supra, the evidence
was of limited probative value, but it layered coincidence upon coincidence to suggest
to the jury that Clay was a violent man who posed a threat to the community. This made
it substantially more likely that the jury would convict him, not on the evidence of the
charged offense, but on the belief that Clay was a dangerous man. The limiting
instructions were insufficient to mitigate these potential risks. By instructing the jury
to use the evidence of the gun theft as background, preparation, and intent evidence, the
district court implicitly approved the idea that the stolen gun was used in the carjacking.
Yet there is absolutely no evidence of this in the record.

While some of the admissible evidence connected Clay to the carjacking, it was
far from overwhelming. Thus the risks that the jury would use inadmissible evidence
for an improper purpose were even greater. See Bell, 516 F.3d at 448. None of the
witnesses positively identified Clay as the carjacker, and one witness identified another
man as the perpetrator. While the evidence may connect Clay to the ATM cards and the
car itself, none of it actually places him in the parking lot where the offense occurred.
The repeated reference to the mass-produced red and white patterned shirt, without
more, does not establish identity. In sum, we are not persuaded that the errors in this
case were harmless. The impact was substantial, and thus, we find that Clay is entitled
to a new trial.
No. 09-5568 United States v. Clay Page 18

E. Sufficiency of the Evidence

We review the district court’s denial of defendant’s Rule 29 motion for acquittal
based on insufficient evidence de novo. Humphrey, 279 F.3d at 378. Despite having
already identified non-harmless errors necessitating reversal, supra, the Sixth Circuit
considers insufficiency-of-the-evidence claims “even if a remand is necessary because
of trial error.” Patterson v. Haskins, 470 F.3d 645, 651 (6th Cir. 2006). In this case,
sufficient evidence existed to support Clay’s convictions for the January 14, 2009,
carjacking and brandishing a firearm during that carjacking, when taking that evidence
in the light most favorable to the government. See Hofstatter, 8 F.3d at 324 (“The
government is entitled to the benefit of all reasonable inferences that can be drawn from
the evidence.”).

To convict Clay of carjacking under under 18 U.S.C. § 2119, the government had
to prove that he: “(1) with intent to cause death or serious bodily harm, (2) took a motor
vehicle, (3) that had been transported, shipped, or received in interstate or foreign
commerce, (4) from the person or presence of another; (5) by force and violence of
intimidation.” Fekete, 535 F.3d at 476. To convict Clay of brandishing a firearm during
and in relation to a crime of violence, the government had to prove that he brandished
a firearm during the charged carjacking. 18 U.S.C. § 924(c)(1)(A)(ii).

In weighing the sufficiency of the evidence against Clay, we “‘must consider all
of the evidence admitted by the trial court,’ regardless of whether that evidence was
admitted erroneously.” McDaniel v. Brown, 130 S. Ct. 665, 672 (2010) (quoting
Lockhart v. Nelson, 488 U.S. 33, 39 (1988). This somewhat counter-intuitive standard
applies because “[a]n ‘appellate court’s reversal for insufficiency of the evidence is in
effect a determination that the government’s case against the defendant was so lacking
that the trial court should have entered a judgment of acquittal.’” Id.(citation omitted).
To “‘make the analogy complete,’” therefore, we must adjudge the sufficiency of the
same evidence that was before the district court when it denied defendant’s motion for
acquittal. Id. (quoting Lockhart, 488 U.S. at 42). Moreover, “because reversal for
No. 09-5568 United States v. Clay Page 19

insufficiency of the evidence is equivalent to a judgment of acquittal, such a reversal
bars a retrial.” Id. (citing Burks v. United States, 437 U.S. 1, 18 (1978)).

Including the challenged 404(b) evidence discussed above at length, at trial the
government presented evidence that, inter alia, Clay attempted to use Ms. White’s bank
cards one hour after her car was stolen with the cards inside; Ms. White’s Grand Prix
was later found at Clay’s residence; ten days after the carjacking Clay was found in
possession of the keys to Ms. White’s Grand Prix; compact discs were found inside the
Grand Prix with pictures of Clay wearing the same shirt he was wearing when caught on
surveillance tape attempting to use Ms. White’s bank cards; Ms. Abernathy saw Clay
with a semi-automatic handgun around the time of the carjacking; and Ms. Means
testified that the carjacker pointed a semi-automatic handgun at both her and Ms. White.
Finally, Clay wrote letters from jail asking Ms. Starkey to construct an alibi for him to
suggest that another man committed the carjacking.

The central thrust of Clay’s argument for acquittal is identity. He argues that the
government presented insufficient evidence that he was the carjacker. As the district
court noted in denying Clay’s motion for a new trial, the evidence “particularly with
respect to the issue of identification—was circumstantial and that at least some of the
Government’s evidence—particularly with respect to the testimony of
eyewitnesses—was conflicting.” There does not seem to be any direct evidence that
places Clay in the parking lot where the carjacking occurred. All of the evidence that
connects Clay to the offense—the ATM video and cards, the location of the Grand Prix
and the keys, the compact disc in the Grand Prix—puts Clay in possession of stolen
goods, but does not put him in the lot. Furthermore, Clay did not fit the witnesses’
description of the carjacker and none could identify him as the perpetrator.

The lack of direct evidence, however, does not require that the verdict be
overturned. See United States v. Clay, 346 F.3d 173, 176 (6th Cir. 2003); United States
v. Stone, 748 F.2d 361, 362 (6th Cir. 1984) (“[C]ircumstantial evidence alone can sustain
a guilty verdict and that to do so, circumstantial evidence need not remove every
reasonable hypothesis except that of guilt.”); United States v. Callan, 22 F. App’x 434,
No. 09-5568 United States v. Clay Page 20

449 (6th Cir. 2001) (noting that “the law generally makes no distinction between direct
and circumstantial evidence”) (unpublished opinion). Relying on the circumstantial
evidence, the jury could have determined that Clay was the man in the parking lot.

In sum, the totality of the evidence presented, both direct and circumstantial, was
sufficient to allow a “rational fact-finder” to infer that Clay had stolen Ms. White’s
Grand Prix, and used a gun to accomplish the theft. Jackson, 443 U.S. at 319. That is
all that is necessary to uphold the sufficiency of the evidence supporting the jury’s
convictions of Clay for carjacking, and brandishing a firearm during and in relation to
a crime of violence. .

III. CONCLUSION

For the foregoing reasons, we REVERSE Appellant’s convictions and
REMAND for a new trial. In light of this conclusion, we do not consider the two
remaining assignments of error.
No. 09-5568 United States v. Clay Page 21

________________

DISSENT
________________

KETHLEDGE, Circuit Judge, dissenting. Every trial presents its own field of
maneuver, with issues rising up in different places on the terrain. Some issues reach
commanding heights, others are just a gentle rise; some have evidence arrayed densely
on each side, others have evidence more thin. Whatever the layout, the district court
knows the ground better than we do. Its understanding comes from the front lines,
whereas we are back in a headquarters tent. And thus we defer a great deal to the district
court’s judgment as to whether a particular piece of evidence aligns with one issue, or
another, or instead does not belong on the field at all.

But here the majority manages Clay’s trial from afar. It reviews de novo the
question whether, under Rule 404(b), the district court admitted evidence of Clay’s prior
crimes for proper purposes. I believe that is an incorrect standard of review. Although
our court has a longstanding intra-circuit conflict regarding the appropriate standard of
review for evidentiary decisions under Rule 404(b), the correct standard, I submit, is the
deferential one that we apply to every other evidentiary ruling. See United States v.
Jenkins, 593 F.3d 480, 484 (6th Cir. 2010) (citing Gen. Elec. Co. v. Joiner, 522 U.S.
136, 141 (1997)); United States v. Allen, 619 F.3d 518, 524 n.2 (2010) (noting that this
circuit has “repudiated the three-tiered standard of review for Rule 404(b)
determinations in light of” Joiner); United States v. Haywood, 280 F.3d 715, 720 (6th
Cir. 2002) (rejecting precisely the standard of review that the majority employs today);
Trepel v. Roadway Exp. Inc., 194 F.3d 708, 716–17 (6th Cir. 1999) (citing Joiner).
Indeed the very reason why the Supreme Court granted certiorari in Joiner (which is
usually thought of as a Rule 702 case) was to set straight the Eleventh Circuit’s
departure from “traditional ‘abuse-of-discretion’ review” in reversing the evidentiary
decision there. 522 U.S. at 141; see also id. at 138–39 (“We granted certiorari in this
case to determine what standard an appellate court should apply in reviewing” the
evidentiary decision there). And the Court did so in categorical terms: “[A]buse of
No. 09-5568 United States v. Clay Page 22

discretion is the proper standard of review of a district court’s evidentiary rulings.” Id.
at 141. We should follow that clear directive here; and I think we are simply wrong to
say that we know just as well as the district court whether certain evidence is admissible
for a proper purpose in light of all the issues and evidence at trial. I would defer to the
district court’s decisions here and affirm.

The district court admitted evidence that, three days before the carjacking, Clay
broke into a pickup truck in a parking lot and stole a “shiny” stainless steel or brushed
nickel semiautomatic handgun. This evidence included security-camera footage
showing an African-American man wearing a distinctively patterned red-and-white shirt
that matches the shirt Clay is wearing in photos the police later found in his home. The
evidence also included a checkbook and DVD player that were stolen from a car in the
same parking lot, and that the police likewise found in Clay’s home.

The district court admitted this evidence because, when viewed against the
backdrop of the other evidence in the case, it helped identify Clay as the person who
carjacked Kathryn White three days after the thefts in the parking lot. See Fed. R. Evid.
404(b) (providing that evidence of other crimes may be “admissible for . . . identity”).
Specifically, an eyewitness to the carjacking testified that the “shiny” stainless steel gun
that Clay stole from the pickup truck “look[ed] like” the “silver semi-automatic” gun that
the carjacker brandished three days later. (Tr. 112.) And the red-and-white shirt that
Clay wore while breaking into the pickup appears identical to the shirt the carjacker is
wearing in yet another security-camera photograph—this one from an ATM, about an
hour after the carjacking, showing the carjacker trying to use White’s credit cards.
Hence this evidence was probative of the carjacker’s identity. Such was the district
court’s view of the issues and evidence first-hand.

The majority disagrees, reviewing the issue de novo. It says that nothing
“confirms” that the shiny handgun in the parking-lot video was the silver one used in the
carjacking three days later, and that the red-and-white shirt is “mass produced” and so
cannot “establish a unique identity.” (Maj. Op. at 13, 16.) But the test for whether this
evidence was admissible to prove identity is not whether it confirms that Clay was the
No. 09-5568 United States v. Clay Page 23

carjacker; rather, the test is merely whether the evidence “tends to make it more
probable” that he was. See United States v. Bonds, 12 F.3d 540, 572 (6th Cir. 1993)
(quotation marks and citation omitted). Even the majority concedes that the evidence
supports the district court’s finding that Clay is the person shown stealing the gun on the
parking-lot video. And the improbability that two different men—wearing the same
distinctive shirt and possessing guns that “look[ed] like” the same one—committed these
crimes only three days and two miles apart, does “tend[] to make it more probable” that
Clay was the criminal in both. Id. Thus, the district court did not abuse its discretion
in finding evidence of the parking-lot thefts admissible to prove Clay’s identity as the
carjacker. And I do not think this evidence was anywhere near inadmissible under Rule
403.

The district court separately admitted testimony that Clay pistol-whipped a
teenage girl a year before the carjacking. On that occasion, Clay was armed with a gun
and drove up alongside the girl as she walked to work. He asked her to get into the car
with him. She declined. Clay continued to drive alongside her and ordered her to stop.
She did not comply, and instead began to run. He got out of his car and chased her.
Eventually he caught up to her, grabbed her, and threatened to kill her if she “s[aid]
anything.” (Tr. 147.) Clay then pistol-whipped the girl—striking her jaw—and fled.

The district court admitted this evidence as proof of Clay’s intent “to cause death
or serious bodily harm” during the carjacking, which is an element of the offense, see
18 U.S.C. § 2119, and proof of which is a permissible purpose under Rule 404(b).
Specifically, the court found that the pistol-whipping episode was sufficiently analogous
to the carjacking one to support an inference that Clay intended to harm Kathryn White
or Ramona Means if White did not comply with his demands. (The government needed
proof on this point because Clay did not in fact physically harm either woman; White
complied with his demands.) In both episodes, Clay was armed with a gun, approached
a female stranger, and made a demand. When the girl did not comply with his demand
in the first episode, Clay followed up with serious bodily harm. Proof of the first
No. 09-5568 United States v. Clay Page 24

episode thus supported an inference that Clay would have done the same thing had
White not complied with his demand in the second.

The majority disagrees, again concluding de novo that the two offenses are “too
unrelated and too far apart in time” to support that inference. But the path to that
conclusion leads through the mire of yet another intra-circuit conflict, in which we are
sunk up to the axles here. Specifically, the majority cites United States v. Bell for the
proposition that evidence of prior crimes is admissible only if the prior crime was “part
of the same scheme or involved a similar modus operandi.” 516 F.3d 432, 443 (6th Cir.
2008). But Bell’s narrow rule for the admissibility of prior-crimes evidence is
“inconsistent with prior precedent and is therefore not controlling.” United States v.
Hardy, 643 F.3d 143, 152 (6th Cir. 2011); see also Jenkins, 593 F.3d at 485 (“Our
precedents are hard to reconcile on this point”). The test for admissibility in this circuit
and elsewhere has long been more permissive: whether the defendant’s conduct in prior
crimes is “sufficiently analogous to support an inference” that the defendant intended to
do something similar later. See United States v. Benton, 852 F.2d 1456, 1468 (6th Cir.
1988). That is functionally the test the district court applied here.

Thus, in United States v. LeCroy, 441 F.3d 914 (11th Cir. 2006), the court upheld
the admission of evidence that the police found notes in the defendant’s car saying that
he planned to “rob cars and kill people” and “rape rob and pillage” as evidence that he
intended to cause harm during a carjacking 10 years later. Id. at 918, 926; see also
Benton, 852 F.2d at 1459, 1467–68 (holding that the government could introduce
evidence that a sheriff had accepted kickbacks to protect bootleggers to prove that the
sheriff later accepted kickbacks for the purpose of protecting a cocaine-distribution
scheme). The two offenses in LeCroy were no more related than the two offenses in this
case. Nor were they closer in time. See also United States v. Finnell, 276 F. App’x 450
(6th Cir. 2008) (admitting evidence of 7-year-old crime); United States v. Love, 254 F.
App’x 511 (6th Cir. 2007) (8 years). The district court did not abuse its discretion by
admitting the pistol-whipping evidence as proof of Clay’s intent to cause serious bodily
harm.
No. 09-5568 United States v. Clay Page 25

The majority alternatively concludes that this evidence was substantially more
prejudicial than probative. (That makes no less than four evidentiary determinations on
which the majority would reverse the district court.) It reasons that the government had
other evidence of Clay’s intent: namely, his threat to shoot White and Means. But to
prove “intent to cause death or serious bodily harm[,]” as required by § 2119, it was not
enough for the government to prove that Clay made such a threat. The government had
to prove that Clay was not bluffing when he made it—that he actually intended to shoot
one of those women if White did not hand over her car. And given the nature of what
the government had to prove—beyond a reasonable doubt, no less—the proof was going
to be ugly no matter what form it took. The pistol-whipping evidence was undoubtedly
prejudicial, but sometimes prejudice is fair. It was here.

The district court did not abuse its discretion in this case. I respectfully dissent.