Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-28-2005

USA v. White
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1026




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"USA v. White" (2005). 2005 Decisions. Paper 956.
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                                                                  NOT PRECEDENTIAL


                          IN THE UNITED STATES COURT
                                   OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      NO. 04-1026


                            UNITED STATES OF AMERICA

                                            v.

                                    SHEREE WHITE
                                       Appellant




                           On Appeal From the United States
                                      District Court
                        For the Eastern District of Pennsylvania
                          (D.C. Crim. Action No. 02-cr-00375)
                      District Judge: Hon. Charence C. Newcomer


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 7, 2005

                 BEFORE: AMBRO, STAPLETON and ALARCON,*
                              Circuit Judges

                              (Opinion Filed: June 28, 2005)




Hon. Arthur L. Alarcon, Senior United States Circuit Judge for the Ninth Circuit, sitting
by designation.
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:

       Because we write only for the parties who are familiar with the facts, we do not

fully recount them below. In 2003, a jury sitting in the United States District Court for

the Eastern District of Pennsylvania returned a verdict against Appellant Sheree White,

finding her guilty on three counts of a Superseding Indictment: Count 1 – conspiracy to

commit armed bank robbery, Count 2 – armed bank robbery, and Count 3 – use of a

firearm during commission of a violent felony. Appellant appeals her convictions and

sentence. We will affirm the judgment of conviction, vacate the sentence, and remand for

resentencing.

                                 I. Rule 404(b) Evidence

       Appellant challenges the admission, pursuant to Federal Rule of Evidence 404(b),

of evidence of two prior armed robberies committed by an unindicted co-conspirator, both

of which were committed with the assistance of the unindicted co-conspirator’s girlfriend

at the time. Appellant argues that the evidence should have been excluded as not meeting

the threshold for relevance and as more prejudicial than probative. We review the

District Court’s decision to admit or exclude evidence under Rule 404(b) for an abuse of

discretion. United States v. Butch, 

, 175 (3d Cir. 2001).

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         Rule 404(b) countenances the admission of evidence of other crimes for purposes

other than the purpose of proving the character of a person, in order to show action in

conformity therewith. Other permissible purposes include, for example, to show “motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Fed. R. Evid. 404(b)1 ; see also United States v. Johnson, 

, 128

(3d Cir. 1999) (favoring the admission of such evidence “if relevant for any other purpose

than to show a mere propensity or disposition on the part of the defendant to commit the

crime”).2

         Admissibility under Rule 404(b) requires (1) a proper evidentiary purpose; (2)

relevance under Rule 402; (3) a weighing of the probative value of the evidence against

any unfair prejudicial effect under Rule 403; and (4) a limiting instruction concerning the

purpose for which the evidence may be used. Becker v. ARCO Chemical Co., 

, 189 (3d Cir. 2000). The parameters of relevant evidence under Rule 404(b) are set



   1
       Rule 404(b) provides:
               Evidence of other crimes, wrongs, or acts is not admissible to
               prove the character of a person in order to show action in
               conformity therewith. It may, however, be admissible for
               other purposes, such as proof of motive, opportunity, intent,
               preparation, plan, knowledge, identity, or absence of mistake
               or accident. . . .
   2
     Admissible evidence under Rule 404(b) is not limited to evidence against defendants;
as opposed to Rule 404(a), which relates to character evidence of an accused, witness or
victim, Rule 404(b) applies to other acts evidence regarding a “person.” See United
States v. Lucas, 

, 605 (6th Cir. 2004) (noting that Rule 404(b) is not limited
to evidence concerning the accused).

                                              3
by the material issues and facts the government must prove to obtain a conviction. See

United States v. Sampson, 

, 887 (3d Cir. 1992).

       The first two requirements are easily met. Other acts evidence satisfies the first

two requirements if it is “probative of a material issue other than character.” Huddleston

v. United States, 

, 686 (1988). Here, the government was charged with

proving the existence of the conspiracy charged in the indictment. The government

therefore bore the burden of showing that the unindicted individual, Williams, as well as

Appellant, were conspirators. The theory of the conspiracy was that Williams enlisted

Appellant, his then-girlfriend, to help orchestrate a bank robbery. The other acts evidence

was offered to show that the robbery in question was planned and executed according to

Williams’ established methodology, i.e., that Williams’ “signature crime” was enlisting

and using girlfriends to act as his insider. This evidence is clearly probative of the issue

of whether William’s involvement with the defendant was innocent, or part of a

conspiracy – i.e., it is relevant to show that it was more probable or less probable that

Williams was involved as a conspirator.

       With regard to the third prong of the analysis, a significant danger of undue

prejudice will only be found in cases where there are “substantial possibilities that a jury

will harbor strong adverse sensitivity to the challenged evidence.” United States v.

Sriyuth, 

, 748 (3d Cir. 1996). Here, the probative value of the evidence was

not substantially outweighed by its prejudicial effect. The government had a clear need



                                              4
for the evidence given its burden of establishing the knowing involvement of both

Williams and Appellant and the circumstantial nature of its case. The evidence was not

of a distracting, confusing, or emotionally charged nature that was likely to mislead a

jury. Finally, the other acts were in no way imputable to Appellant (indeed, the evidence

was from before Appellant ever knew Williams), and so there was no unreasonable risk

that the evidence might be misconstrued as propensity evidence. Furthermore, the

District Court gave an appropriate limiting instruction concerning the purpose for which

the evidence may be used. United States v. Mastrangelo, 

, 294 (3d Cir.

1999).

         In sum, the other acts evidence had relevance to the factual issues at trial, and the

District Court properly determined that the evidence’s probative value outweighed its

prejudicial effect. There was, therefore, no abuse of discretion in ruling the evidence

admissible at trial.

                                          II. Sentence

         Appellant also challenges her sentence under United States v. Booker, 

(2005). The Government concedes that it is appropriate for this Court to vacate

Appellant’s sentence and remand for resentencing in light of Booker. We agree.

Accordingly, we will vacate Appellant’s sentence and remand for resentencing in

accordance with Booker. United States v. Davis, 

(3d Cir. 2005) (denying

rehearing en banc).



                                                5
                                     III. Conclusion

      Appellant’s judgment of conviction will be affirmed, her sentence will be vacated,

and this case will be remanded for resentencing.




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