United States v. Coles
In United States v. Coles, No. 23-20021 (5th Cir. Apr. 29, 2024) (unpublished), the Fifth Circuit affirmed the defendant’s convictions for Hobbs Act robbery and discharging a firearm during the same, and it affirmed his 480-month prison sentence. The district court had not erred by allowing the Government to play a video of the defendant previously committing a similar robbery in another state.
Background: Coles was charged with robbing a Houston nightclub where he had previously worked. At trial, the Government also introduced evidence, over objection, that a month earlier, Coles had robbed a Minnesota bar and restaurant where he had also previously worked. The Government played videos of both robberies and compared them during its closing argument. The jury convicted Coles of the Houston robbery, and the court imposed a 40-year prison sentence to run consecutively with Coles’ 17-year sentence (already received) for the Minnesota robbery.
Issue 1: Did the district court abuse its discretion in admitting evidence of the Minnesota robbery? Held: No.
Under Federal Rule of Evidence 404(b)(1), evidence of other crimes or bad acts is not admissible to prove a person’s character “in order to show that on a particular occasion the person acted in accordance with the character.” But under 404(b)(2), prior-acts evidence may be admissible for other purposes. In short, the Government must satisfy two requirements to admit such evidence: (1) it must prove that the evidence is relevant to an issue other than the defendant’s character, and (2) it must prove that the evidence possesses probate value that is not substantially outweighed by its undue prejudice. Here, the Government did both.
Under the first prong, “extraneous-acts evidence offered to prove identity is admissible in the Fifth Circuit only if the circumstances of the extraneous act were so similar to the offense in question that they evince a signature quality—marking the extraneous act as ‘the handiwork of the accused.’” United States v. Sanchez, 988 F.2d 1384, 1393 (5th Cir. 1993) (quoting United States v. Beechum, 582 F.2d 898, 912 n.15 (5th Cir. 1978) (en banc)). “Indeed, proper identity evidence is tantamount to modus operandi evidence.” Id. at 1393–94. Here, the two robberies “evince[d] a signature quality” and were more than “mere ‘generic’ crimes.”
Under the second prong, the court considers several factors: “(1) the [G]overnment’s need for the extrinsic evidence, (2) the similarity between the extrinsic and charged offenses, (3) the amount of time separating the two offenses, and (4) the court’s limiting instructions.” United States v. Juarez, 866 F.3d 622, 627 (5th Cir. 2017) (internal quotations and citation omitted). And it considers “the overall prejudicial effect of the extrinsic evidence.” Id. (citing Beechum, 582 F.2d at 917).
Here, Coles put the robber’s identity “front and center” by arguing misidentification — indeed, he called an expert witness “to articulate a defense theory of misidentification.” The district court also gave the jury a “fulsome limiting instruction,” which mitigated the risk of prejudice. As the court wrote, it “has discerned abuse of discretion only in limited circumstances in which district courts have admitted ‘other acts’ evidence that was ‘highly prejudicial’ compared to the crimes charged. See, e.g., United States v. Fortenberry, 860 F.2d 628, 630 (5th Cir. 1988) (reversing conviction because prosecution admitted evidence of other acts that were ‘of a magnitude far greater than the charged offenses’).”
Issue 2: Did the district court plainly err by finding that Coles was a career offender under USSG § 4B1.1(a)? Held: No.
The Fifth Circuit has not yet “determined whether Hobbs Act robbery constitute[s] a crime of violence under the operative version of § 4B1.1(a).” Although many other circuits have so held, this court “disagree[d] with those circuits and instead [found] Judge Phipps’ dissenting rationale in Scott persuasive.” United States v. Scott, 14 F.4th 190, 200–04 (Phipps, J., dissenting). Because the Fifth Circuit has no binding precedent on the question, Coles failed to prove plain error.
Note: One of our firm’s lawyers briefly represented Mr. Coles during pretrial proceedings.