Appeal from the United States District Court for the District of Columbia (No. 02cr00106–01)
Before: Ginsburg, Chief Judge, and Edwards and Tatel,
The opinion of the court was delivered by: Ginsburg, Chief Judge
Brian Carr was convicted on five counts of bank robbery. Carr challenges his convictions and his sentence, arguing that the district court erred by: (1) failing to sever each count for a separate trial; (2) instructing the jury that the change in Carr's appearance before trial could be considered as evidence of his consciousness of guilt; and (3) making his 22–month sentence on one count consecutive to his concurrent sentences of 240 months on each of the other four counts. Carr also claims he received ineffective assistance of counsel, in violation of the Sixth Amendment to the Constitution of the United States. Because none of Carr's arguments has any merit, we affirm the judgment of the district court.
On January 30, 2002 Carr entered a branch of the Chevy Chase Bank in downtown Washington, D.C. and passed the teller a note demanding ''all the money.'' Upon exiting the bank Carr was immediately stopped by officers of the Metropolitan Police Department because he fit the description of the suspect in four other bank robberies perpetrated within a few blocks of the Chevy Chase branch. After confirming the bank had just been robbed, the officers set up an identification procedure at which two bank employees identified Carr as the person who had just robbed their branch; questioning of Carr then elicited an admission that he had robbed the branch.
The officers informed Carr that his appearance fit that of the person who had committed the other four robberies. That person was, like Carr, a black male in his 20s or 30s, who had a thick, unkempt beard and wore a heavy jacket and either a baseball cap or a knit hat. The modus operandi of all five robberies was also similar, as were the robber's facial expressions, gestures, and demand notes, which in each case the robber asked be returned to him. Carr denied robbing the other four banks.
Carr was charged with all five bank robberies. He was tried by a jury and convicted on all counts, for which he was sentenced to four prison terms of 240 months, to be served concurrently, and one term of 22 months, to be served consecutively. Carr now appeals both his conviction and the sentence.
We take up first Carr's three claims of reversible error by the district court. We then turn to Carr's claim to have received ineffective assistance of counsel at trial.
Carr argues the district court erred in denying his motion to sever each bank robbery count for a separate trial. Under Rule 14 of the Federal Rules of Criminal Procedure, a ''court may order [a] separate trial[ ]'' for each offense if it appears the defendant would be prejudiced by ''the joinder of offenses'' in a single trial. Carr, laboring under the mistaken impression his counsel had not moved for severance before trial, now argues that ''[a]s the trial progressed'' the district court should have sua sponte ordered separate trials for each of the five counts because the ''joint trial of extremely similar events, and the manner in which it was tried, created an unfairly prejudicial environment.'' The Government argues Carr did not suffer any prejudice from the district court's failure to sever each count.
A district court's denial of a defendant's motion to sever may generally be reversed ''only upon a finding of clear prejudice and abuse of discretion.'' United States v. Levi, 45 F.3d 453, 455 (D.C. Cir. 1995) (citations and internal quotations omitted). In Levi, as in the present case, ''the perpetrator [had] used similar notes, made similar statements and gestures, wore similar clothing, and robbed banks TTT in the same general area of the city'' in each robbery. Id. We explained that a ''finding of prejudice is logically precluded if, had the counts been tried separately, the evidence concerning each count would have been admissible on each other count.'' Id. In that case, as in this, if the defendant had been tried separately on each count, then the same evidence concerning the perpetrator's modus operandi would have been admissible in each case under the identity exception to Federal Rule of Evidence 404(b). Id.; see United States v. ...