REVISED MARCH 19, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 9, 2010
No. 09-40309 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
TIMOTHY LEE YORK
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
The Government indicted Timothy Lee York (York) on three counts: arson
in violation of 18 U.S.C. § 844(f)(1) (count one); carrying a destructive device in
relation to a crime of violence contrary to 18 U.S.C. § 924(c)(1)(b) (count two);
and possession of a firearm not registered in the National Firearms Registration
and Transfer Record in violation of 26 U.S.C. § 5861(d) (count three). He was
convicted of these offenses following the jury’s verdict of guilty on all three
counts, and in February 2009 was sentenced to 497 months’ imprisonment.
York appeals his conviction and sentence on multiple grounds. First, he
argues that the evidence is insufficient to sustain the guilty verdict. Second,
No. 09-40309
that the trial court erred by overruling his motion for mistrial based on juror
misconduct. Third, that inadmissible extrinsic offense evidence was admitted.
Fourth, that the trial court erroneously excluded relevant evidence. And fifth,
that the sentence imposed was neither procedurally nor substantively
reasonable. For the reasons stated below, we affirm York’s conviction and
sentence.
BACKGROUND
As Jeremy Carroll and his father-in-law, Walter Vickers, drove home from
church on the evening of February 21, 2006, they saw a fire at the Cooke County
Courthouse in Gainesville, Texas. It was two to three feet high burning at a
courthouse window. At the time, the courthouse was being renovated, so the
window where the fire burned had been boarded up with plywood. They stopped
their car, called 911, and approached the courthouse. When Carroll saw a
broken bottle at the base of the fire, he kicked it away. He testified that after
kicking away the bottle, the flames died down somewhat, but continued to burn
around the bottle. Vickers testified that he saw liquid inside the bottle. When
firefighters arrived, they attempted to put out the fire. The captain of the fire
department testified that a Molotov cocktail caused the fire. A chemist for the
state conducted a gas chromatography test which revealed gasoline residue in
the glass bottle discovered at the courthouse. The firefighters discovered a
checkbook at the scene. The Fire Marshal testified the checkbook was somewhat
intact after it had been rolled up and used as a wick for the Molotov cocktail.
The checkbook had printed on or in it York’s name and address in Irving,
Texas. Investigators went to the address, but found that York’s parents lived
there. York’s mother informed investigators that York’s father had taken him
to Gainesville for a forfeiture hearing. Investigators learned that York stayed
at a Ramada Inn, two blocks away from the courthouse, while he was in
Gainesville. Using information from his parents, and further investigation into
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No. 09-40309
his activities in Gainesville, investigators discovered that York had moved into
a girlfriend’s house after staying at the Ramada Inn. The girlfriend gave
investigators consent to search her home. They found a duffel bag that belonged
to York. It contained an order signed by Texas district judge Janelle Haverkamp
for a scheduling conference in a forfeiture suit of York’s property. Judge
Haverkamp presided over this suit and had chambers in the Cooke County
Courthouse. The bag also had in it a document with Judge Haverkamp’s home
phone number and an incorrect home address for her. Investigators also found
in the bag high resolution maps of the home that York apparently believed to be
Judge Haverkamp’s, a photo of the judge, and notes of research into the security
of the courthouse.
York’s then-girlfriend, Brenda Finch, also told investigators that York had
borrowed her car and driven to Oklahoma, where he was arrested on criminal
charges. The Fire Marshal and another agent traveled to Oklahoma to interview
York who was in custody there. During the interview, York admitted that he
was very angry about a prior forfeiture proceeding against him. Incident to an
arrest on July 16, 2005, forfeiture proceedings had been brought by the State of
Texas against the York’s vehicle and about $865 cash that they found in that
vehicle. York admitted that, out of anger, he purchased gasoline, bought a bottle
of Jack Daniels Liquor, and created the Molotov cocktail by pouring the gasoline
in the bottle and using his checkbook as a wick. York also admitted to lighting
the checkbook and throwing this Molotov cocktail against the boarded window
at the courthouse. When the investigators questioned York about the
information he had about Judge Haverkamp and the courthouse, York became
visibly agitated and refused to answer questions.
At trial, York recanted his confession, stating that he only admitted to
using the Molotov cocktail because he wanted to get out of Oklahoma state jail.
The Government corroborated York’s confession with testimony from York’s co-
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No. 09-40309
workers and Finch who heard the defendant threaten to blow up the courthouse.
In response to the Government’s evidence, York called multiple witnesses,
including his father and himself. After the Government’s rebuttal evidence,
instructions and arguments from both sides, the jury found York guilty on all
three counts.
DISCUSSION
I. Sufficiency of Evidence
York argues that the evidence is legally insufficient on each count. On the
arson count, York argues that there is no sufficient evidence that he acted
“maliciously” or that a federal nexus for the offense existed. Because the second
count is predicated on the arson count, York argues that this court should
reverse on the second count too. Finally, he argues that the Government lacked
legally sufficient evidence on the third count to prove that York possessed a
firearm.
This court reviews de novo a denial of a motion for judgment of acquittal.
United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003).
“We will affirm the jury's verdict if a reasonable trier of fact could
conclude from the evidence that the elements of the offense were
established beyond a reasonable doubt, viewing the evidence in the
light most favorable to the verdict and drawing all reasonable
inferences from the evidence to support the verdict. Our review of
the sufficiency of the evidence does not include a review of the
weight of the evidence or of the credibility of the witnesses.”
Id. (quoting United States v. Myers, 104 F.3d 76, 78 (5th Cir. 1997)).
A. Count One
The Government first charged York with violation of 18 U.S.C. § 844(f)(1):
“Whoever maliciously damages or destroys, or attempts to damage
or destroy, by means of fire or an explosive, any building, vehicle, or
other personal or real property in whole or in part owned or
possessed by, or leased to, the United States, or any department or
agency thereof, or any institution or organization receiving Federal
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No. 09-40309
financial assistance, shall be imprisoned for not less than 5 years
and not more than 20 years, fined under this title, or both.”
18 U.S.C. § 844(f)(1).
First, York objects that the evidence does not show that he acted
“maliciously” in this respect. We have interpreted maliciously to include wanton
and willful burnings without justification or excuse when interpreting 18 U.S.C.
§ 844(i). United States v. Corona, 108 F.3d 565, 571 (5th Cir. 1997); see also St.
Tammany Parish ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307,
320 (5th Cir. 2009) (“[A]s a matter of statutory interpretation, in determining
the meaning of a particular statutory provision, it is helpful to consider the
interpretation of other statutory provisions that employ the same or similar
language.”) (quoting Flowers v. S. Regional Physician Servs. Inc., 247 F.3d 229,
233 n.4 (5th Cir. 2001)). The defendant acts maliciously if he acts in willful
disregard of the likelihood of damaging a building. United States v. Monroe, 178
F.3d 304, 307 (5th Cir. 1999). Intent is sufficient, but not necessary. Id.
There is sufficient evidence of York’s intent. For example, the Fire
Marshal who investigated this fire testified that the evidence clearly suggested
that the fire was intentionally set. In United States v. Patel, the First Circuit
found sufficient evidence of intent when two fire investigators testified that the
fire was intentionally set. 370 F.3d 108, 111–12 (1st Cir. 2004). Some courts
have looked at motive as evidence of malice. E.g., United States v. Gardner, 211
F.3d 1049, 1053 (7th Cir. 2000); United States v. Hans, 332 F. App’x 116, 124
(4th Cir. 2009) (unpublished). In this case, the evidence shows that York was
very angry at the judge in his prior forfeiture case. York made statements that
he intended to kill the judge. He also told several people he wanted to blow up
the courthouse. Finally, evidence of preparation for the offense may be evidence
of intent. See United States v. Stymiest, 581 F.3d 759, 766–67 (8th Cir. 2009).
The Government produced evidence that York knew how to make Molotov
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No. 09-40309
cocktails and had demonstrated making a Molotov cocktail to others. the
evidence showed that research related to the security of the courthouse was in
York’s duffel bag. There was evidence that York had a photograph and the
personal address and phone number of the judge in his prior state court
forfeiture case. The Fire Marshal testified that York told him that, before he
acted, he had made the decision to burn down the Courthouse by throwing a
Molotov cocktail.
York also argues that there is not legally sufficient evidence of a federal
nexus for the arson count. The statute requires that the damaged building,
vehicle, or other personal or real property be in whole or in part owned or
possessed by, or leased to, the United States, or any department or agency
thereof, or any institution or organization receiving Federal financial assistance.
§ 844(f)(1). Phyllis Ann Griffin, a county agent for the Texas Agrilife Extension
Service, testified that it was her office window that was, in her words,
“bomb[ed]” and that her employer receives federal funding. The Fire Marshal
testified that there were other offices in the courthouse that received federal
funding, including: an adjunct office of the United States Department of
Agriculture, County Clerk’s office, the District Clerk’s office, and the County
Auditor’s office. He also testified that an Emergency Management office of
Homeland Security also has an office in the courthouse. Given that these
institutions or organizations receive federal financial assistance, or are a federal
agency or department, and possess a part of the damaged building, the
Government has put on legally sufficient evidence of the federal nexus.
B. Count Two
Next, York argues that because the predicate offense, count one, arson,
was not proven by legally sufficient evidence, the Government has not produced
legally sufficient evidence of count two, carrying and using a destructive device
during or in relation to a crime of violence. 18 U.S.C. § 924(c)(1), 924(c)(1)(B).
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No. 09-40309
As discussed previously, the Government has produced legally sufficient
evidence of the arson count on which the jury convicted York. Arson is a crime
of violence.1 Accordingly, the government has proven the predicate offense to
count two.
As count two also requires the use of a destructive device in the
commission of the crime of violence, York next argues that there is not legally
sufficient evidence that he used or carried a destructive device. 18 U.S.C.
§ 924(c)(1)(B). The statute defines “destructive device” as:
“any explosive, incendiary, or poison gas–(i) bomb, (ii) grenade, (iii)
rocket having a propellant charge of more than four ounces, (iv)
missile having an explosive or incendiary charge of more than one-
quarter ounce, (v) mine, or (vi) device similar to any of the devices
described in the preceding clauses.”
18 U.S.C. § 921(a)(4)(A).2 We have interpreted the definition of
destructive device under 26 U.S.C. § 5845(f), which uses language identical to
that in 18 U.S.C. § 921(a)(4)(A). Under section 5845, we have held that a
Molotov cocktail is a destructive device. United States v. Wilson, 546 F.2d 1175,
1177 (5th Cir. 1977); United States v. Ross, 458 F.2d 1144, 1145–46 (5th Cir.
1972). Our interpretation is consistent with that of at least three other circuits.
E.g., United States v. Buchanan, 787 F.2d 477, 479 (10th Cir. 1986) (affirming
the conviction where a device consisted of a plastic milk container filled with
gasoline and charcoal fluid was lit with a fuse made of rags); United States v.
Curtis, 520 F.2d 1300, 1304 (1st Cir. 1975); United States v. Cruz, 492 F.2d 217,
219 (2d Cir. 1973) (holding that a Molotov cocktail does constitute a destructive
1
A crime of violence is a felony that has as an element the use or attempted use of
physical force against the person or property of another. § 924(c)(1)(D)(3)(A). Arson fits this
definition. See also 18 U.S.C. § 3559(c)(2)(B) & (F); U.S.S.G. § 4A1.2(a). York does not argue
that arson falls outside the definition of crime of violence.
2
The definitions in § 921(a) are applicable to Chapter 44 (§§ 921-931) of Title 18.
Section 921(a)(3) defines “firearm” to include, among other things, “any destructive device.”
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No. 09-40309
device). See also United States v. Graziano, 616 F. Supp. 2d 350, 362–63
(E.D.N.Y. 2008) (looking at the text of section 921 and surveying the cases from
the various circuits to conclude that a Molotov cocktail is a destructive device
within the definition of section 921). We hold that a Molotov cocktail falls within
the definition of a destructive device under section 921(a)(4)(A) because it is an
incendiary bomb.
It is possible to construe York’s brief to argue that there is not legally
sufficient evidence that York actually possessed a Molotov cocktail. The record,
however, does not support such an argument. One of the eye witnesses who put
out the fire saw the window of the courthouse burning and saw a bottle with
liquid in it burning next to it. He saw paper stuck down in the bottle. The Fire
Marshal concluded that York’s checkbook had been rolled up and used as the
wick for the Molotov cocktail. A chemist for the Government testified that there
was gasoline in the bottle. The state also put on the record admissions by York
that he not only constructed the Molotov cocktail, but how he constructed it.
York himself admitted (though he later recanted) that he stuck the checkbook
into the bottle filled with gasoline. York’s co-worker testified seeing one of
York’s Molotov cocktails and that York asked the co-worker to help him blow up
the courthouse.
C. Count Three
Finally, York argues respecting count three only that there is no legally
sufficient evidence that he possessed an unregistered firearm. Section 5861(d)
of Title 26 provides that it is “unlawful for any person . . . to receive or possess
a firearm which is not registered to him in the National Firearms Registration
and Transfer Record.” 26 U.S.C. § 5861(d). For purposes of Chapter 53 of the
Internal Revenue Code (26 U.S.C. §§ 5801-5872), “firearm” is defined as
including, inter alia, a “destructive device.” 26 U.S.C. § 5845(a). Section 5845(f)
likewise defines a destructive device as, “any explosive, incendiary, or poison gas
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No. 09-40309
(A) bomb, (B) grenade, (C) rocket having a propellent charge of more than four
ounces, (D) missile having an explosive or incendiary charge of more than
one-quarter ounce, (E) mine, or (F) similar device.” This is identical to the
definition contained in 18 U.S.C. § 921(a)(4)(A). A Molotov cocktail is a
destructive device within the definition of section 5845(f), and it is
uncontroverted that the device was not registered. Ross, 458 F.2d at 1145–46;
Buchanan, 787 F.2d at 479; Curtis, 520 F.2d at 1304; Cruz, 492 F.2d at 219. We
reject York’s contention that there is insufficient evidence that he possessed an
unregistered firearm contrary to section 5861(d).3
II. Premature Jury Deliberations
York argues that the trial court erred when it denied his motion for
mistrial for jury misconduct. Specifically, he argues that the trial court should
have inquired into whether jurors prematurely deliberated at the time (or
before) they sent a note asking to see certain evidence. At no time did ever York
request to have a hearing or question the jury or any juror about possible
deliberations. He simply requested a mistrial. This court reviews the district
court’s denial of a mistrial based on jury misconduct for an abuse of discretion.
United States v. Sharpe, 193 F.3d 852, 861–62 (5th Cir. 1999).
After the Government and the defense had each rested, but before either
had closed, the jury was temporarily excused as defense counsel renewed his
motion for judgment of acquittal and the Government announced it would have
3
This contention is York’s sole attack on the sufficiency of the evidence to support his
conviction on count three. He makes no challenge to the jury charge on count three (or on any
other count). His sentence on count three was 120 months, all of which was concurrent to his
sentence on count one, which was 137 months; his sentence on count two was 360 months, all
of which was consecutive to his sentence on count one, as required by 18 U.S.C. § 924(c)(1)(A)
& (B)(ii). Concurrent terms of supervised release of three years each on counts one and three
and five years on count two were imposed. No fine was imposed. Restitution to the Cooke
County Auditor in the amount of $827.08 was ordered. A Special Assessment of $300 ($100
per count of conviction) was ordered. It does not appear that any portion of York’s sentence
(other than the $100 assessment) depends on his count three conviction. We consider with
respect to count three only the contentions that York has raised on appeal.
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No. 09-40309
rebuttal evidence but first wanted to put on a witness out of the presence of the
jury to get a ruling on a matter from the district court. While this witness was
testifying, and the jury was still out, the note from the jury was received. After
a few more questions to the witness who had been testifying and the court
having ruled most of the testimony would be admissible, the court called the jury
in and asked them concerning the unsigned note, “is this coming from one juror?
Is it coming from everyone?” One unidentified juror responded that the note
“was something that we had all been interested in.” The court then responded
as follows:
“The Court: Okay. And your note says, ‘Can we hear a tape
of Mr. York’s confession to Mr. Henry and Mr. Ward recorded in
Oklahoma?
First of all, I don’t know if there’s a recording of that
confession. But you’ll have to decide this case based upon the
evidence that’s presented to you. I don’t know if there’s a recorded
confession.
But when you’re deliberating, if there’s evidence that you’ve
heard during the course of the trial that you have a disagreement
about, then perhaps we can read back some limited testimony to
you, if that’s a problem.
But you’re getting a little ahead of the process here. I’ll
instruct you on the law at the conclusion of the case, you will hear
the final arguments. If at the conclusion of the case you haven’t
heard a recorded confession, then you can assume there was no
recording.”
Thereafter, the Government commenced presenting its rebuttal evidence
which was not completed when the day ended. The next morning, before the
jury was brought in, the defense moved for a mistrial stating,
“The note yesterday, as I thought about it last night, regarding the
request for a tape, it appears to me that the jury has begun
deliberations before all of the evidence is closed. I believe that’s
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No. 09-40309
improper. And at this time, I would ask the court for a mistrial
based on the improper actions of the jury at the time.”
The court denied the motion stating, inter alia,
“I took that [the note] as a request from the jury that, if they could
have input, they would like to hear that evidence. I didn’t take that
as an indication that they’ve already begun to decide the case, but
rather that they don’t want the case to be completed without having
at least made the request for any tape of his statement in
Oklahoma. . . . They could agree that they would like to hear
something without sharing their feelings about the case yet. And
that’s the way I took that. So I’m going to deny your motion for
mistrial.”
The jury was then brought in and the Government continued its rebuttal
evidence, and at the end of the day it closed and so also did the defense.
Under the Sixth Amendment, every defendant has the right to trial by an
impartial jury. United States v. Dominguez, 226 F.3d 1235, 1243 (11th Cir.
2000). Deliberations prior to the close of evidence threaten that impartiality.
Id. Judges have broad discretion to deal with possible jury misconduct. Id. at
1246. “There are often no obviously right or wrong answers to the questions that
arise.” Id. The trial judge’s discretion is broadest when the allegation involves
internal misconduct such as premature deliberations, instead of external
misconduct such as exposure to media publicity. Id. The trial judge’s discretion
extends “even to the initial decision of whether to interrogate the jurors.” Id.
In this case, we hold that the trial court did not abuse its discretion when it
denied the motion for mistrial.
York primarily relies upon a distinguishable case from the Third Circuit,
United States v. Resko, 3 F.3d 684 (3d Cir. 1993). In Resko, a juror approached
a court officer and told him that members of the jury had been discussing the
case during their recesses and while waiting in the jury room. Resko, 3 F.3d at
687. Unlike Resko, York only moved for a mistrial; he did not request any
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No. 09-40309
questioning of the jury or any juror. See id. at 687–88. In fact, Resko turns on
the fact that the trial court asked the jurors some questions, but decided not to
inquire further when those questions revealed ambiguous answers. Id. at 690
(“Simply put, the questionnaire raised more questions than it answered.”).
Further, the Third Circuit has gone on to recognize that Resko’s holding was
narrowly limited to the facts of that case, “facts which we thought—and still
think—unlikely to recur.” United States v. Bertoli, 40 F.3d 1384, 1396 (3d Cir.
1994).
Finally, many of the concerns behind the rule against premature
deliberations are simply not applicable to this case. See Resko, 3 F.3d at 689.
Resko lists six concerns. Id. First, it is unfair to the defense if jurors
prematurely deliberate since the prosecution presents its evidence first and the
jury may reach conclusions before the defense has a chance to present its case.
Id. Here, the issue came up after the defense rested and before the
Government’s rebuttal evidence had begun. Second, once a juror expresses his
views, he or she is more likely to adhere to that opinion and pay greater
attention to evidence that comports with that opinion. Id. In this case, however,
the jurors’ question tends to indicate that the jurors had not reached any
decision on disputed evidence. The jury note was unsigned and asked simply,
“Can we hear a tape of Mr. York’s confession to Mr. Henry & Mr. Ward?” The
Government had presented evidence of the confession in its case-in-chief, but did
not play any tape of it. York, through his own testimony, tried to contest or
explain that evidence in the defense case-in-chief, but also did not play any
tape.4 Coming after both sides had rested but before either had closed, the note
indicated the jury sought more information before the case would ultimately be
submitted to them for decision.
4
In fact there apparently was no tape of York’s confession to Henry or Ward.
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No. 09-40309
The third rationale the Resko court examined was that “the jury system
is meant to involve decisionmaking [sic] as a collective, deliberative process and
premature discussions among individual jurors may thwart that goal.” Id. This
rationale is inapplicable since the record suggests the jury as a whole requested
to hear the audio tape. The Resko court also worried that “if premature
deliberations occur before the defendant has had an opportunity to present all
of his or her evidence . . . the burden of proof will have been, in effect, shifted
from the government to the defendant, who has the ‘burden of changing by
evidence the opinion thus formed.’” Id. This should not concern us because the
instant issue arose after the defense rested (and indicated it did not expect to
put forth any evidence in response to the Government’s forthcoming rebuttal
case). Next, the Resko court stated that preventing premature deliberations
insured the burden remained on the Government to prove its case beyond a
reasonable doubt. Id. at 689–90. Like the previous rationale, this case does not
seem to concern any burden shifting. In our opinion, only one of Resko’s
rationales appears applicable: jurors who prematurely deliberate do so without
the benefit of the court’s instructions. Resko, 3 F.3d at 689.
Overall, however, we do not believe the trial court committed reversible
error. The district court issued some instructions to the jury not to send notes
until the trial court issued its final instructions. The defense did not ask for any
other instructions. At the beginning of the trial, the district court gave a
thorough instruction not to express any opinions before the jurors heard all of
the evidence. The law presumes that jurors will understand and follow
instructions and abandons that presumption only when there “is an
overwhelming probability that the jury will be unable to follow the instruction
and there is a strong probability that the effect is devastating.” United States
v. Patino-Pardo, 533 F.3d 304, 313 (5th Cir. 2008). Finally, in evaluating a claim
of juror misconduct, the law also presumes that the jury is impartial and the
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No. 09-40309
burden rests on the defendant to show otherwise. United States v. Collins, 972
F.2d 1385, 1403 (5th Cir. 1992). At oral argument, York’s counsel correctly
admitted that, from the record, it is equally likely that the jury had not then
begun to deliberate, stating:
“One juror could have sat down . . . and said, you know, I’d sure like
to hear that tape . . . and the rest of the 11 could have said we
agree. . . . [O]n the other hand, it’s just as likely that they sat down
and begun discussing Mr. York’s testimony and concluded that they
would like to hear that tape to decide whether or not to believe Mr.
York. . . . Frankly, we don’t know which the scenario was.”
Under these circumstances, we hold that York has not met his burden.
York never requested the trial court question any of the jurors. He did nothing
more than move for a mistrial the next day. Thus, the district court did not
abuse its discretion in denying York’s motion for mistrial.
III. Extrinsic Offense Evidence
Government witness Brenda Finch, former girlfriend of York, testified on
direct examination that York had told her that he had tried to bomb the
courthouse with a Molotov cocktail he threw at the courthouse basement door.
On cross-examination, defense counsel pointed out that when she gave her
statement to law enforcement in April 2006 it did not include those words, but
rather said something about his having “tried to blow up the courthouse.” Finch
was subsequently recalled by the Government, and on further direct
examination she testified that when orally interviewed by law enforcement a
couple of days before her April 25, 2006 written statement she did not “mention
to them that Mr. York had told you that he had thrown a Molotov cocktail at the
basement of the courthouse.” She further testified that she did not then tell law
enforcement that “‘cause I was scared’ because York had ‘made threats before
with me and my son;” when asked “what specific threats he had made,” she
responded “he told me that he would kill me and he would kill my son . . . he
would kill my son and then kill me . . . he would make me watch.” She further
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No. 09-40309
stated that that was also the reason her signed statement to law enforcement
did not contain the information that York had shown her how to make a Molotov
cocktail. At no time was any defense objection made to any of such testimony
(nor is any complaint made of same on appeal). On cross-examination defense
counsel asked Finch why, if she was scared because of York’s threats, she didn’t
tell law enforcement about the threats when they orally interviewed her some
two days before her written statement, and “if he had made these alleged threats
and you are upset, why didn’t you go to the police?” Finch answered “I was
scared. There were more things involved than that.” Defense counsel then
asked “Like drug use in your house?” Finch responded that there was no drug
use in her house. Defense counsel then asked “How about the CPS [Child
Protective Services] issues with your son?” Finch responded “I didn’t have no
CPS issues with my son.” Cross-examination of Finch then concluded as follows:
“Q. There was alcoholic parties going on for hours at a time, and
you had no CPS issues to be concerned about?
A. No.
Q. And that’s what you want everybody to believe today?
A. I did not have any CPS issues with my son.”
On redirect, Finch repeated her testimony that York’s threats, about
killing her son and making her watch and then killing her, were the reason she
did not disclose certain information mentioned in her earlier testimony when
initially questioned by law enforcement, that she perceived those threats to be
real, and that that is what she meant when she had said there was more
involved than just the threats. And, when asked the reason she believed the
threats, she testifed:
“One night, we was drinking and we got into a fight and he body-
slammed me to the ground. As I was trying to make my way
towards the door, he pushed me. And I had like one of those porches
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No. 09-40309
that had the ceiling on the porch, and my phone cord that they had
was hanging down, and he yanked it and wrapped it around my
neck. And I think the only thing that saved me was my dad walking
out. And it scared me. I just – I knew right then that’s the only
thing that would – you know, that saved my life.”
Defense counsel objected stating “I think it goes beyond the scope of cross.
I believe that it’s unduly prejudicial and a personal act as opposed go [sic] to any
other act.” The court overruled the objection stating:
“Your objection is overruled because she was cross-examined on why
she didn’t put this in her statement. I think the government has a
right to bring out why she didn’t put it in her earlier statement,
because that goes to her credibility. She is testifying to her fear of
Mr. York. And that’s relevant to rebutting what you brought out in
earlier cross-examination.”5
No limiting instruction was requested by the defense (nor was any defense
request made for any other or further ruling) and none was then given.
However, a general limiting instruction regarding evidence of prior bad acts was
given in the final charge to the jury and no objection to the correctness or
adequacy of such instruction has been raised on appeal.
York contends on appeal that his objection to the above quoted testimony
concerning York’s attempt to strangle Finch with the telephone cord should have
been sustained because its admission was a violation of Federal Rule of Evidence
404(b).
This court reviews the admission of evidence under Rule 404(b) for an
abuse of discretion. United States v. Cockrell, 587 F.3d 674, 678 (5th Cir. 2009).
Although we heighten review in criminal cases, we will only reverse if the
defendant can demonstrate prejudice. Id. We apply the two prong Beechum test
to resolve 404(b) issues: (a) the “other crimes, wrongs, or acts” must be relevant
5
The defense objection and the court’s ruling were made out of the presence of the jury,
the court having held, at the request of the prosecution, and out of the presence of the jury a
hearing on admissibility. After the ruling the identical testimony was presented to the jury,
without further objection or ruling.
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No. 09-40309
to an issue other than the defendant’s character; and (b) the evidence’s probative
value must not be substantially outweighed by its prejudicial effect. Id. (citing
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978).
First, this evidence is clearly relevant to an issue other than York’s
character, namely the credibility of the Government’s witness Finch, as the
district court ruled.
Second, it can reasonably be concluded that the Federal Rule of Evidence
403 weighing test favors admission of this evidence. The evidence must possess
probative value that is not substantially outweighed by its undue prejudice.
Cockrell, 587 F.3d at 678. The court makes a common sense assessment of all
the circumstances surrounding the extrinsic offense. Id. The more closely the
extrinsic offense evidence resembles the charged offenses, the greater the likely
prejudice that results. Id. at 679 (because the jury may use similar offenses for
conformity). Here, there is no danger of the jury confusing the domestic violence
incident with the charged offense (arson). The evidence has substantial
probative force. York’s girlfriend explained that she withheld information from
the police because she was afraid of York’s threats. On cross, York had inquired
into many other potential reasons why she may have withheld the information
all of which generally impeached her credibility before the jury (e.g., drugs and
child custody issues, alcoholic parties). This prior domestic violence incident has
substantial probative value in contrast to the reasons the defense proffered.
We are unable to conclude that the district court abused its discretion in
the admission of the challenged evidence. It is unlikely that its probative value
is substantially outweighed by the unfair prejudicial effect. See United States
v. Caldwell, 586 F.3d 338, 342 (5th Cir. 2009).
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No. 09-40309
IV. Exclusion of Evidence on Relevance Grounds
Fourth, York argues that the trial court should have admitted testimony
from York’s father about York’s birth which led his father to “suspect that Mr.
York suffered organic brain damage.” In attempting to elicit this testimony, the
defense did not ask the father what his profession or education was. The
Government objected to relevance and the trial court sustained the objection.
This court reviews evidentiary rulings for an abuse of discretion. United States
v. Garcia Mendoza, 587 F.3d 682, 689 (5th Cir. 2009). This Court examines what
effect the error had or reasonably may be taken to have upon the jury’s decision.
United States v. George, 201 F.3d 370, 372 (5th Cir. 2000).
Even if proper evidence that York had suffered organic brain damage were
relevant, the error was harmless because the defendant merely offered
inadmissible opinion. See id. at 373 (affirming based on other grounds). The
rules forbid lay opinions based on scientific, technical, or other specialized
knowledge within the scope of Rule 702. FED. R. EVID. 701. The drafters added
this language to Rule 701 to prevent parties from offering expert testimony as
lay opinion and circumventing discovery rules. FED. R. EVID. 701 advisory
committee’s note. The distinction between lay and expert testimony is that lay
testimony results from a process of reasoning familiar in everyday life, whereas
expert testimony results from a process of reasoning that can only be mastered
by specialists in the field. United States v. Cooks, 589 F.3d 173, 180 (5th Cir.
2009).
The advisory committee notes to Rule 701 adopt the distinctions between
lay and expert testimony as set forth in State v. Brown, 836 S.W.2d 530, 549–50
(Tenn. 1992). In Brown one witness testified about the cause of certain bruises
and the length of time it would take those bruises to develop. Id. at 549.
Another testified about cause of an injury to an individual’s toe. Id. The court
found both of these medical causation opinions to be expert opinions. Id. at 550.
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No. 09-40309
Like Brown, York’s father’s testimony seems to be speculative medical causation
testimony. Testimony about York’s birth and any brain damage caused by his
birth requires specialized medical knowledge. It is not the type of opinion that
one could reach as a process of everyday reasoning. Thus, district court did not
abuse its discretion.
V. Sentencing
Finally, York challenges the reasonableness of his sentence. York admits
that his sentence is within the Guidelines’ range. This court reviews a sentence
for reasonableness. See Gall v. United States, 552 U.S. 38, 46 (2007). We first
decide whether the district court committed any procedural errors, such as
incorrectly calculating the advisory guidelines range or failing to consider the
sentencing factors set forth in § 3553(a). Here, York makes the argument that
“the District Court did not engage in significant and meaningful analysis of any
mitigation factors.” We assume, arguendo, that this may be construed as a
procedural challenge to the sentence. When the district court imposes a
sentence within the guidelines, the appellate court may infer that the judge has
considered all the factors for a fair sentence. United States v. Smith, 440 F.3d
704, 707 (5th Cir. 2006); see also 18 U.S.C. § 3553(a). Even when the trial court
departs from the Guidelines, a checklist recitation of the section 3553(a) factors
is not necessary. Smith, 440 F.3d at 707.
It is not shown that the trial court in the instant case failed to adequately
weigh the section 3553(a) factors. For example, the court considered the nature
and circumstances of the offense and the history and characteristics of the
defendant. At sentencing, the trial court explained, “The reason I chose the high
end of the guidelines, Mr. York, is because of your violent and assaultive
behavior. I understand that you have been diagnosed with a mental disorder.”
The court further considered the need for the sentence to reflect the
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No. 09-40309
circumstances of the offense, to protect the public from the defendant, and to
deter future crimes. The district court stated,
“What I saw today from the Government is evidence of you
assaulting three other inmates. I know you deny that you assaulted
Mr. Logsdon, but Oklahoma prison authorities investigated and
found that you were responsible for stabbing him. So the court finds
that that provides evidence that is sufficiently reliable for the court
to base its decision of where to sentence you within the guideline
range.”
Throughout the record, there is evidence of the district court considering the
other section 3553(a) factors. We find no procedural error at sentencing.
Second, the appellate court should consider the substantive
reasonableness of the sentence taking into account the totality of the
circumstances. Id. Since the sentence in the instant case is within the
Guidelines’ range, we may apply a presumption of reasonableness. Id. The fact
that an appellate court may have reasonably concluded that a different sentence
was appropriate is not sufficient to justify reversal of the district court. Gall. v.
United States, 552 U.S. at 51. York offers nothing more than conclusory
arguments to support his belief that the district court abused its discretion.
Here, the district court gave meaningful consideration of the section 3553(a)
factors. See United States v. Shannon, 518 F.3d 494, 496 (7th Cir. 2008). The
district court gave an adequate statement of its reasons for the sentence. York
presents nothing to cause us to depart from the presumption of reasonableness
of his sentence.
CONCLUSION
York raises no point of error based on the record below that warrants
reversal of his conviction or his sentence. Accordingly, the judgment of the trial
court is
AFFIRMED.
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