United States v. Fitzgerald

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

MARSHALL EARL FITZGERALD, a/k/a
Marshall Fitzgerrel, a/k/a
No. 94-5716
Marshall E. Fleaming, a/k/a Charles
Fitzgerald, a/k/a Charles E.
Fleaming, a/k/a Allen Gibson, a/k/a
Brownie, a/k/a Mickey, a/k/a
Marshall E. Fleming,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-94-250)

Argued: September 29, 1995

Decided: January 8, 1996

Before HALL and NIEMEYER, Circuit Judges, and BEATY,
United States District Judge for the Middle District of
North Carolina, sitting by designation.

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Affirmed by unpublished opinion. Judge Beaty wrote the opinion, in
which Judge Niemeyer joined. Judge Hall wrote a concurring opinion.

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COUNSEL

ARGUED: Joseph John McCarthy, DELANEY, MCCARTHY,
COLTON & BOTZIN, P.C., Alexandria, Virginia, for Appellant.
Gerald J. Smagala, Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attor-
ney, Alexandria, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

BEATY, District Judge:

Marshall Fitzgerald ("Fitzgerald") appeals his conviction of a four-
count indictment which charged him with kidnapping in violation of
18 U.S.C. § 1201(a) and 2, use of a firearm during a crime of violence
in violation of 18 U.S.C. § 924(c)(1), possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2),
and possession of an unregistered sawed-off shotgun in violation of
26 U.S.C. § 5861(d) and § 5871. We find his assignments of error
have no merit, therefore, we affirm his conviction.

I.

On November 30, 1991, in Prince William County, Virginia, Fitz-
gerald and three friends entered Michael Reed's ("Reed") taxicab and
asked him to take them to Crystal City, Virginia. Just minutes prior
to stepping into Reed's taxicab, Fitzgerald had robbed the conve-
nience store very close to where Reed picked him up. While in the
taxicab, Fitzgerald overheard the dispatcher talking to Reed, became
very nervous, pointed a sawed-off shotgun at Reed, and ordered him
to take them to Washington, D.C. When they reached Washington,
D.C., Fitzgerald and his friends exited the car. On appeal, Fitzgerald
asserts four assignments of error that he contends were committed at
trial. Fitzgerald's assignments of error address the following issues:
(1) inadequate jury voir dire; (2) improper admission of 404(b) evi-
dence; (3) prosecutorial misconduct in the closing arguments; and (4)
inadequate jury instructions. We will address each assignment of error
in turn.

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II.

Fitzgerald's first assignment of error relates to the limited jury voir
dire conducted by the district court. It is well established that a trial
court may exercise broad discretion in conducting the voir dire of the
jury, and particularly in phrasing the questions to be asked. United
States v. Jones, 608 F.2d 1004, 1007 (4th Cir. 1979), cert. denied, 444
U.S. 1086 (1980). See, e.g., Ristaino v. Ross , 424 U.S. 589, 594-95
(1976); United States v. Johnson, 527 F.2d 1104, 1107 (4th Cir.
1975). Fitzgerald contends he was denied the right to an impartial jury
when the district court, in a pretrial hearing, prohibited him from
mailing a questionnaire to the jurors prior to trial. He further argues
that the error was compounded when the district court failed to ask
four specific questions which concerned the jurors' ability to render
a fair and impartial verdict. At trial, Fitzgerald declined to accept the
district court's invitation to pare down the questionnaire to more ger-
mane issues.

One of the four questions Fitzgerald raises on appeal concerns
whether the jury would give more weight to the testimony of a law
enforcement officer than that given to any other witness. This ques-
tion raises an appropriate subject for voir dire. The failure to ask this
specific question, if error, would constitute a trial error that is subject
to review under the harmless error standard of Chapman v.
California, 386 U.S. 18, 24 (1967), reh'g denied, 386 U.S. 987
(1967). In Chapman, the Supreme Court held that before a federal
constitutional trial error can be held harmless, the court must be able
to declare that the error was harmless beyond a reasonable doubt.
Fitzgerald relies on United States v. Evans, 917 F.2d 800 (4th Cir.
1990), which held that the district court erred when it did not ask the
jurors what weight they would give to a police officer's testimony.
However, Evans is distinguishable from the facts of this case. In
Evans, the government's case relied solely on the testimony of one
agent. Id. at 808. The evidence in the present case included more than
the testimony of a single law enforcement agent. Not only did the
government present testimony from two additional government
employees, it also provided testimony from Reed, the taxicab driver,
Paul Snider, who was Fitzgerald's confidant, and Elaine Owens
("Owens"), one of the passengers who accompanied Fitzgerald into
Reed's taxicab. Although we find that additional questions could have

3
been asked of the jurors concerning what weight they would give to
a police officer's testimony, we find that any error in failing to inquire
further is harmless beyond a reasonable doubt. This is especially true
since the district court did ask the jurors whether they had any imme-
diate family members who were involved in law enforcement in any
capacity. Based on the answers provided by the jurors to this ques-
tion, Fitzgerald was provided an opportunity to effectively exercise
his peremptory challenges during the voir dire.

The three other voir dire questions which Fitzgerald now highlights
include whether the jury understood the presumption of innocence,
whether they or their family members had any prior experience with
the crime Fitzgerald was charged, and whether they understood the
English language. We find no error with regard to these three ques-
tions. Specifically, as to the first question of whether the jury had any
prior experience with the crime Fitzgerald was charged, we find that
this subject was sufficiently covered when the district court inquired
whether any of the jurors had ever been involved in a criminal case
as a witness, victim, or defendant. In response to this specific ques-
tion, none of the jurors gave an affirmative answer. Second, the ques-
tion regarding whether the jury understood the presumption of
innocence was adequately covered when the district court asked the
jury if they could render a fair and impartial verdict. The court was
not required to ask the question in any specific manner. Moreover, in
the preliminary instructions to the jury, the district court fully
addressed the law on presumption of innocence by stating, "The
defendant has no burden to prove his innocence or to present any evi-
dence or to testify." (J.A. at 54.) The district court further covered the
subject of presumption of innocence in the final charge by indicating,
"The law presumes a defendant to be innocent. Thus, the defendant,
although accused, begins the trial with a clean slate, with no evidence
against him. And the law permits nothing but legal evidence pres-
ented before the jury to be considered in support of any charge against
the accused." (J.A. at 249.)

Finally, as to the question of the jurors' ability to understand the
English language, the record does not reflect that the jurors ever gave
any reason for the district court to question any of the jurors' profi-
ciency for the English language. In order for a jury verdict to be set
aside on this issue, defendant must present "`clear evidence of a

4
juror's incompetence to understand the issues and to deliberate at the
time of his service.'" United States v. Hall , 989 F.2d 711, 714 (4th
Cir. 1974) (quoting United States v. Dioguardi , 492 F.2d 70, 78 (2d
Cir. 1974), cert. denied, 419 U.S. 873 (1974)). After reviewing the
record we find no evidence or objection by Fitzgerald which raises an
issue of jury incompetence during the trial. We further find that the
district court adequately questioned the jury so as to allow Fitzgerald
to make an intelligent exercise of his peremptory challenges. See
United States v. Brown, 799 F.2d 134, 135 (4th Cir. 1986). Therefore,
the district court did not abuse his discretion in conducting voir dire,
and we find no error.

III.

Fitzgerald also contends that the district court erred in allowing
evidence of two robberies he was alleged to have committed within
twenty-four hours of the kidnapping of Reed. The admission of evi-
dence under Rule 404(b) of the Federal Rules of Evidence is within
the discretion of the trial court, and its admission will not be over-
turned unless its decision is shown to be arbitrary or illogical. United
States v. Bailey, 990 F.2d 119, 122 (4th Cir. 1993). We have estab-
lished a four-prong test to be applied to 404(b) evidence: (1) the evi-
dence must be relevant to an issue other than character, (2) the
evidence must be necessary to prove an element of the crime on trial,
(3) the evidence must be reliable, and (4) applying Rule 403, the evi-
dence, although relevant, must not be substantially outweighed by the
danger of unfair prejudice. Id. (citing United States v. Rawle, 845
F.2d 1244 (4th Cir. 1988)).

Here, the evidence regarding the robberies committed by Fitzgerald
on November 29 and 30, 1991, was highly probative, since it illus-
trated a similar motive, plan, and scheme to the present offense
charged against Fitzgerald. For example, on November 29, 1991, the
day before kidnapping Reed, Fitzgerald committed an armed robbery
with the same sawed-off shotgun he used on Reed. In addition, Fitz-
gerald used a taxicab after the prior robbery to travel to Washington,
D.C., to purchase drugs with the stolen money. On November 30,
1991, during the present charged offense, Fitzgerald robbed a conve-
nience store, fled the scene in Reed's taxicab, and again traveled to
Washington, D.C., for the purpose of purchasing drugs with money

5
stolen from the robbery. His modus operandi after each robbery
included fleeing the crime scene in a taxicab to Washington, D.C., to
buy drugs with the stolen money. Owens' testimony that she was with
him on the previous day when he robbed the Mexican store in con-
junction with Fitzgerald's own admission of these prior incidents to
three government witnesses, Reed, Lieutenant Boteler, and Snider,
establishes the reliability of the evidence. There is no question that the
substantial evidence of criminal activity describing Fitzgerald's
motive, plan, and scheme to commit a similar offense is prejudicial
to his case. However, we find that the evidence of a similar modus

operandi, motive, plan, and scheme as offered pursuant to 404(b) sub-
stantially outweighed any prejudicial effect to Fitzgerald. The district
court, therefore, did not err by allowing the government to introduce
evidence of the two robberies during Fitzgerald's trial. We further
find that based upon the probative nature of the robbery incidents, the
district court had good cause to excuse any pre-trial notice require-
ment for the use of 404(b) evidence.1
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1 Fitzgerald claims that the government failed to give him five days
notice of its intention to use the two robbery incidents at trial as required
by the district court's order. On the other hand, the government contends
that it gave Fitzgerald adequate notice. During the motion in limine
before trial, the following discussion ensued regarding the 404(b) notice
requirement:

MR. HULKOWER (government): Judge, without addressing
the 404(b) notice question, although I would point out that we
have given adequate notice . . . .

....

THE COURT: All right. I would find that the Government
is entitled to use the evidence of the two prior offenses to the
extent that it involves a cab to make the getaway scene.

Based on this colloquy, the district court found it unnecessary to
address whether the government had actually failed to comply with the
pre-trial notice requirement because it found that the evidence was
admissible due to its high probative value.

6
IV.

Fitzgerald's third assignment of error asserts that the district court
failed to grant a new trial based upon the prosecutor's closing argu-
ments describing the evidence as being one-sided and overwhelming.
Fitzgerald argues that these comments brought to the jury's attention
his failure to testify. Fitzgerald also contends that the prosecutor
injected his own personal beliefs into the closing arguments by stating
the jury could sit on juries for years and would never see a stronger
case. In United States v. Francisco, 35 F.3d 116, 120 (4th Cir. 1994),
cert. denied, 115 S. Ct. 950 (1995), we held that in order to determine
whether a prosecutor's comments were prejudicial we must decide
whether the comments "so infected the trial with unfairness as to
make the resulting conviction a denial of due process." The two-prong
test for reversible prosecutorial misconduct is: (1) whether the prose-
cutor's remarks or conduct was improper, and (2) whether such
remarks or conduct prejudicially affected the defendant's substantial
rights so as to deprive him of a fair trial. Id. In addition to this two-
step inquiry, we have also acknowledged that closing arguments are
not merely a time for a summation of undisputed facts, but also a time
to draw reasonable inferences from the evidence. Id.; United States v.
Brainard, 690 F.2d 1117, 1122 (4th Cir. 1982), cert. denied, 471 U.S.
1099 (1985).

In the instant action, the prosecutor's comment that the evidence
was one-sided and overwhelming did not refer to Fitzgerald's failure
to testify. It, instead, reflected exactly what the evidence revealed,
that is, that the government established facts from which the jury
could return a guilty verdict. Additionally, the comment that the jury
could sit on juries for years and never see a stronger case referred to
the strength of the government's case. Therefore, we find that all of
the statements made by the prosecutor, in the context of the evidence
presented, were reasonable inferences that could be drawn from the
evidence, and therefore did not improperly interject impermissible
bias into the minds of the jurors.

V.

Finally, Fitzgerald maintains that his conviction should be reversed
based upon the district court's refusal to submit a special verdict

7
form. Fitzgerald argues that the jury should have been required to
specify by unanimous verdict which of the five enumerated elements
constitute the actus reus Fitzgerald employed to commit the kidnap-
ping offense. In essence, Fitzgerald contends that the district court
erroneously instructed the jury in the disjunctive on the kidnapping
offense as cited in 18 U.S.C. § 1201(a)(1)2 rather than in the conjunc-
tive as he was charged in the indictment.

It is well settled that federal pleading requires that an indictment
be stated in the conjunctive language in order to fully inform the
accused of the charges. United States v. McGinnis, 783 F.2d 755, 757
(8th Cir. 1986). This means that "[p]roof of any one of the violations
charged conjunctively in the indictment will sustain a conviction." Id.;
see also United States v. Champion, 387 F.2d 561, 563 (4th Cir.
1967) (providing that an indictment worded conjunctively under a
statute which uses disjunctive language may be disjunctively consid-
ered by the jury and proof on any one of the allegations is sufficient
to sustain a conviction); see also Fed. R. Civ. P. 7(c)(1) (stating that
"[i]t may be alleged in a single count that the means by which the
defendant committed the offense are unknown or that the defendant
committed it by one or more specified means."); see also Schad v.
Arizona, 501 U.S. 624, 631-2 (1991), reh'g denied, 501 U.S. 1277
(1991) (providing that jurors are not required to agree on a single
means of commission).

Even though the indictment charged the kidnapping offense in the
conjunctive by stating Fitzgerald did "confine, kidnap, abduct, carry
away and hold," the district court correctly used the disjunctive lan-
guage of the statute to instruct the jury on the kidnapping offense. In
any event, the evidence presented to the jury was sufficient for the
jury to find the existence of one or more of the enumerated actus
reuses of the kidnapping offense, even though they were not required
to specify any one manner in which they found that Fitzgerald com-
mitted the kidnapping offense. Furthermore, since the disjunctive lan-
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2 "Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps,
abducts, or carries away and holds for ransom or reward or otherwise
any person, except in the case of a minor by the parent thereof . . . shall
be punished by imprisonment for any term of years or for life." Id.
(emphasis added).

8
guage of the statute obviates the need for jurors to unanimously agree
on any one of the enumerated methods of the actus reus of the kidnap-
ping offense, we find that the district court properly instructed the
jury on the kidnapping offense, and did not err by refusing to submit
a special verdict form to the jury.

Accordingly, for the foregoing reasons, we affirm Fitzgerald's con-
viction.

AFFIRMED

HALL, Circuit Judge, concurring:

I agree with the majority's disposition of this case, as well as
almost every statement contained in its opinion. I take issue only with
Part IV, and then only insofar as it concludes that the prosecutor did
nothing wrong by telling the jurors that they "could sit on juries for
years and . . . never see stronger evidence." This remark invited the
jury, in light of the prosecutor's superior experience, to refrain from
exercising its independent judgment as to whether the government's
case against Fitzgerald had been proved beyond a reasonable doubt.
In essence, the jurors were asked to substitute the prosecutor's subjec-
tive viewpoint for their own common experience.

Although I believe that the remark was clearly inappropriate, I
have no hesitation in concluding that the prosecutor's misstep, alone
or in conjunction with the court's error during voir dire, ante at 3-4,
did not affect the outcome of the trial. Indeed, the evidence against
Fitzgerald was so strong that I cannot help but wonder why the gov-
ernment believed it necessary to stray beyond the bounds of propriety
during its closing argument. I can only surmise that the prosecutor did
not carefully consider his remark, and trust that he will not make this
particular mistake again.

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