Appeal from the United States District Court for the Southern District of California. DC No. CR-91-1217-01-GT. Gordon Thompson, Jr., District Judge, Presiding
Before: Tang, Canby, and Beezer, Circuit Judges
Pierre Fouche appeals his convictions for armed bank robbery, being a felon in possession of a firearm, and carrying a firearm, during the commission of a crime of violence under 18 U.S.C. §§ 2113(a), (d), 922(g)(1) and 924(a),(c)(1), (e), respectively. We affirm.
I. The Trial Court's Failure to Sever the Charge of Felon in Possession of a Firearm.
Fouche charges error in the trial court's refusal to sever the charge of felon in possession of a firearm from the bank robbery charge because the evidence in support of the firearm possession charge, a prior conviction for bank robbery, is prejudicial and would have been inadmissable in a trial of the other two charges alone. "A denial of severance will be upheld absent a showing that 'joinder was so manifestly prejudicial that it outweighed the dominant concern with judicial economy and compelled exercise of the court's discretion to sever.'" United States v. Kaplan, 895 F.2d 618, 621 (9th Cir. 1990) (quoting United States v. Whitworth, 856 F.2d 1268, 1277 (9th Cir. 1988), cert. denied, 489 U.S. 1084 (1989)). The defendant has the burden of showing such manifest prejudice that his trial was rendered unfair. United States v. Lewis, 787 F.2d 1318, 1321, amended, 798 F.2d 1250 (9th Cir. 1986).
We have recognized, however, "that there is 'a high risk of undue prejudice whenever, as in this case, joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible.'" Lewis, 798 F.2d at 1250 (quoting United States v. Daniels, 770 F.2d 1111, 1116 (D.C. Cir. 1985)). Nevertheless, we still review the strength of the evidence against the defendant to determine whether undue prejudice exists. Lewis, 787 F.2d at 1322-23; see also United States v. Burgess, 791 F.2d 676, 679 (9th Cir. 1986) (denial or motion to sever was not an abuse of discretion because the evidence against the defendant "was neither sparse nor unconvincing").
In this case, the strength of the other evidence against Fouche overshadowed the risk of prejudice in failing to sever the charges. Five witnesses, including his codefendant, identified Fouche as the bank robber. A great deal of physical evidence also connected Fouche to the robbery and corroborated the witnesses' identifications of Fouche as the robber.
In addition, very little exculpatory evidence was presented to challenge the government's case. The only exculpatory evidence mentioned in Fouche's brief is that two persons in the bank told the police that the robber was white, and Fouche is black. The strength of this evidence was diminished, however, by the facts that the robber was fully clothed, his face was covered by a mask, and he wore white latex gloves that made his hands appear lighter. Moreover, both bank witnesses who saw the robber before he put on the mask testified that he was black. In sum, the other evidence against Fouche was so overwhelming and convincing that joinder of the firearm charge did not unduly prejudice him or deny his right to a fair trial.
II. Admission of Testimony Regarding Hollow-Point Bullets
Fouche argues that the district court abused its discretion by admitting testimony that the gun carried by the bank robber was loaded with hollow-point bullets.
Fouche first asserts that the testimony was irrelevant because the government was not required to prove this fact to obtain a conviction for either armed bank robbery or using and carrying a firearm during a crime of violence. This argument is meritless. "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. The agents' testimony that the gun was operable and loaded was relevant because the defense attempted to establish that the gun carried by the bank robber was a counterfeit or a replica.
Fouche next argues that the testimony that the gun was loaded with hollow-point bullets was unduly prejudicial because these bullets are known to cause greater damage than regular bullets. This argument also fails. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]" Fed. R. Evid. 403.
Unfair prejudice results from an aspect of the evidence other than its tendency to make the existence of a material fact more or less probable, e.g., that aspect of the evidence which makes conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury's attitude toward the ...