United States v. Ford

761 F.3d 641

UNITED STATES of America, Plaintiff–Appellee,

v.Jordon FORD (11–1917); Jasper Perdue (11–1926); Tyrone Nathan (11–2015); Wilnell Henry (11–2200), Defendants–Appellants.

Nos. 11–1917, 11–1926, 11–2015, 11–2200.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 20, 2013.

Decided and Filed: Aug. 5, 2014.

ARGUED:Gary W. Crim, Dayton, Ohio, for Appellant in 11–1917. Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant in 11–1926. Michael R. Bartish, Springstead & Bartish, Law, P.L.L.C., Grand Rapids, Michigan, for Appellant in 11–2015. Timothy J. McKenna, Timothy J. McKenna, LLC, Cincinnati, Ohio, for Appellant in 11–2200. Sean C. Maltbie, United States Attorney's Office, Grand Rapids, Michigan, for Appellee. ON BRIEF:Gary W. Crim, Dayton, Ohio, for Appellant in 11–1917. Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant in 11–1926. Michael R. Bartish, Springstead & Bartish, Law, P.L.L.C., Grand Rapids, Michigan, for Appellant in 11–2015. Renée Paradis, San Francisco, California, for Appellantin 11–2200. Sean C. Maltbie, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.

Before: MOORE, GIBBONS, and SUTTON, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

This consolidated appeal arises from the convictions and sentencing of Jordon Ford (“Ford”), Jasper Perdue (“Perdue”), Tyrone Nathan (“Nathan”), and Wilnell Henry (“Henry”) for crimes arising from their involvement in a conspiracy to commit a series of armed robberies in the Lansing, Michigan area, between February 2009 and October 2009. We address each of their arguments in turn. For the reasons set forth below, we AFFIRM.

I. BACKGROUND

The grand jury returned an indictment against Ford, Perdue, Nathan, and Henry on March 31, 2010. R. 1 (Indictment at 1) (Page ID # 1). A superseding indictment was returned on June 30, 2010. Each defendant was charged with one count of conspiracy to commit robbery affecting commerce in violation of 18 U.S.C. § 1951; ¹ multiple counts of robbery affecting interstate commerce in violation of 18 U.S.C. §§ 1951 and 2; ² and multiple counts of possessing and brandishing or discharging a firearm in furtherance of both the conspiracy and a robbery count in violation of 18 U.S.C. §§ 924(c) and 2.³ R. 77 (Superseding Indictment) (Page ID # 129). After a joint trial, Ford and Perdue were convicted of all charges.⁴ R. 190 (Jury Verdict) (Page ID # 642). Ford was sentenced to 1,392 months of imprisonment, R. 255 (Ford Sent. Tr.) (Page ID # 2886, 2913), and now appeals his conviction and his sentence. Perdue was sentenced to 1,464 months of imprisonment, R. 256 (Perdue Sent. Tr.) (Page ID # 2920, 2943), and now appeals his conviction and his sentence. Defendant Nathan pleaded guilty to conspiracy to commit robbery affecting commerce. R. 129 (Nathan Am. Plea) (Page ID # 251). He was sentenced to 168 months of imprisonment, R. 273 (Nathan Sent. Tr.) (Page ID # 3053, 3094), and now appeals his sentence. Defendant Henry pleaded guilty to conspiracy to commit robbery affecting commerce. He was sentenced to 150 months of imprisonment, R. 291 (Henry Sent. Tr.) (Page ID # 3172, 3201), and now appeals his sentence.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction over the appeals pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

II. EVIDENTIARY CLAIMS

Ford and Perdue both challenge the admission of evidence regarding their gang affiliation and the impact of the robbery on a witness to the crime.

Federal Rule of Evidence 401 provides that “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401. Federal Rule of Evidence 403 provides that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. “Unfair prejudice ‘does not mean the damage to a defendant's case that results from the legitimate probative force of the evidence; rather it refers to evidence which tends to suggest decision on an improper basis.’ ” United States v. Gibbs, 182 F.3d 408, 430 (6th Cir.1999) (quoting United States v. Bonds, 12 F.3d 540, 567 (6th Cir.1993)).

We review a district court's evidentiary rulings for an abuse of discretion. United States v. Fisher, 648 F.3d 442, 449 (6th Cir.2011). “[W]e will reverse a district court's evidentiary decisions only where the ‘abuse of discretion has caused more than harmless error.’ ” Id. (quoting United States v. Johnson, 440 F.3d 832, 847 (6th Cir.2006)). “Under harmless error analysis, reversal is warranted only if the instruction affected a substantial right of the defendants.” Gibbs, 182 F.3d at 428 (citing Fed.R.Crim.P. 52(a)).

A. Gang Affiliation

Ford and Perdue both argue that the district court abused its discretion by permitting the government to introduce evidence of their affiliation with the Vice Lords gang.⁵ Both filed pre-trial motions in limine asking the court to exclude evidence of Vice Lords membership, arguing that it is not relevant and, if relevant, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.⁶ R. 167 (Ford Mot. in Limine at 1) (Page ID # 472); R. 161 (Perdue Mot. in Limine at 1) (Page ID # 461). The district court denied the motion. R. 200 (Trial Tr. at 12–14) (Page ID # 674–76).

Ford and Perdue argue that the evidence of gang affiliation was irrelevant because the co-defendants' relationship was not at issue. Ford Appellant Br. at 44; Perdue Appellant Br. at 13. During the pre-trial hearing on the admissibility of the gang evidence, Perdue's counsel conceded the relationship amongst the defendants as “members of a rap group, and they all congregated often at the studio of Mr. Henry.” R. 200 (Trial Tr. at 6) (Page ID # 668). Ford and Perdue argue that the gang evidence was highly prejudicial and not probative because the co-conspirators were involved in different gangs, gang affiliation is not an element of robbery, and the leaders of the conspiracy indicated that the Vice Lords gang was not connected to the robberies.⁷

Evidence of gang affiliation is relevant where it demonstrates the relationship between people and that relationship is an issue in the case, such as in a conspiracy case. See United States v. Williams, 158 Fed.Appx. 651, 653–54 (6th Cir.2005); Gibbs, 182 F.3d at 429–30. However, gang affiliation evidence “is inadmissibleif there is no connection between the gang evidence and the charged offense.” United States v. Anderson, 333 Fed.Appx. 17, 24 (6th Cir.2009); see also United States v. Newsom, 452 F.3d 593, 602–04 (6th Cir.2006) (holding that evidence of a gang tattoo was not relevant when the sole charge was being a felon in possession of a firearm). It was not an abuse of discretion for the district court to allow the introduction of evidence of Ford's and Perdue's gang affiliation. The evidence of gang affiliation is relevant because it demonstrates the relationship amongst the co-conspirators. Specifically, the evidence furthered the Government's theory that the co-conspirators were a distinct subset of the many people involved in the Fallen Angels record label and that the bond between the subset was their involvement in the Vice Lords. The probative value of the testimony that Ford and Perdue were involved in the Vice Lords was not outweighed by the danger of unfair prejudice. Accordingly, we hold that the district court did not abuse its discretion by admitting evidence of Ford's and Perdue's gang affiliation.

B. Witness's Reaction to Robbery as Interference with Interstate Commerce

Ford and Perdue argue that the district court abused its discretion by allowing a robbery witness to testify about how she was impacted by witnessing the Mario's Market robbery. At trial, when the Assistant United States Attorney asked the witness if the robbery had any effect on her, counsel for Ford objected on the basis of relevance; ⁸ the court permitted the testimony, stating that “if we don't go too far, it's relevant. The government has to show interference with commerce, and one way to do that is to indicate the effect it has on people.” R. 202 (Trial Tr. at 118) (Page ID # 1268). The witness proceeded to testify that she was “nervous going into stores, taking my kids into stores. I didn't know if it would happen again.” Id. Perdue argues that the introduction of this evidence is “especially egregious” because before trial the parties stipulated that the robberies affected interstate commerce. R. 188 (Stipulation at 1–2) (Page ID # 639–40).

Ford and Perdue were both charged with multiple counts of conspiracy to commit robbery affecting commerce in violation of 18 U.S.C. § 1951. An element of this offense is interference with interstate commerce. This element is satisfied by a showing of even a de minimis effect on interstate commerce. United States v. Baylor, 517 F.3d 899, 902 (6th Cir.2008) (holding that the interstate commerce element was satisfied through evidence that a restaurant that was robbed routinely purchased and used ingredients from other states). However, this witness did not testify that she altered her shopping practices as a result of the robbery—she testified only to her emotional state when entering stores. The government offers no authority to establish that a crime witness's feelings of nervousness when entering stores after witnessing a robbery in a store is relevant to the element of interstate commerce. Although most stores engage in interstate commerce by purchasing items from other states, the government did not introduce any evidence that the stores in which she felt nervous did, in fact, engage in...