United States v. Titus Lamb

        USCA11 Case: 20-10236    Date Filed: 10/28/2020    Page: 1 of 9



                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 20-10236
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:18-cr-00259-MLB-CMS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

TITUS LAMB,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (October 28, 2020)

Before JILL PRYOR, BRASHER, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Titus Lamb appeals his conviction for two counts of Hobbs Act robbery,

three counts of bank robbery, and two counts of brandishing a firearm. On appeal,

Lamb argues that the district court abused its discretion when it admitted Fed. R.

Evid. 404(b) (“Rule 404(b)”) evidence of a prior Mississippi bank robbery. Lamb

also argues that the district court erred in denying his motion for judgment of

acquittal because sufficient evidence did not exist for a reasonable jury to find him

guilty of Counts 1-6 of the superseding indictment.


                                         I.


      We review the district court’s decision to admit prior crimes or bad acts

under Rule 404(b) for abuse of discretion. United States v. Ellisor, 522 F.3d 1255,

1267 (11th Cir. 2008). We recognize a three-part test to determine if evidence is

admissible under Rule 404(b): (1) the evidence must be relevant to an issue other

than the defendant’s character; (2) there must be sufficient proof that a jury could

find by a preponderance of the evidence that the defendant committed the act; and

(3) the probative value of the evidence must not be substantially outweighed by

undue prejudice, as established in Fed. R. Evid. 403 (“Rule 403”). United States v.

Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007). The principles governing Rule

404(b) evidence are the same whether the conduct occurs before or after the




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charged offense. United States v. Dickerson, 248 F.3d 1036, 1046 (11th Cir. 2001)

(citation omitted).

       Under the first prong, Rule 404(b) permits the admission of prior bad acts

evidence to show motive, identity, preparation, knowledge, and intent. Fed. R.

Evid. 404(b)(2). The test for whether Rule 404(b) evidence should be allowed

varies depending on the issue for which it is offered. United States v. Lail, 846

F.2d 1299, 1301 (11th Cir. 1988) (citation omitted). The standard for

establishing identity is particularly stringent. Id. (holding that the district court

abused its discretion because the similarities between the charged conduct and

the 404(b) evidence did not provide a “signature” and there were major

dissimilarities between the charged robberies and the 404(b) robbery). We have

held that when 404(b) evidence is introduced for identity, the similarities

between the two offenses must demonstrate modus operandi or the handiwork of

the accused. United States v. Stubbins, 877 F.2d 42, 44 (11th Cir. 1989) (citation

and quotation omitted). Evidence cannot be admitted to prove identity if the

defendant has simply at other times committed the “same commonplace variety

of criminal act.” United States v. Phaknikone, 605 F.3d 1099, 1108 (11th Cir.

2010) (citation and quotations omitted).

      In United States v. Whatley, we held that an uncharged bank robbery was

admissible under Rule 404(b) because it was sufficiently similar to the charged

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crimes to prove modus operandi. United States v. Whatley, 719 F.3d 1206,

1218- 19 (11th Cir. 2013). In Whatley, the charged and uncharged robberies both

involved a casually dressed bank robber who committed takeover style bank

robberies. Id. at 1218. We noted that there were no major dissimilarities

between the charged and uncharged offenses. Id. We also noted that the later

charged robberies were most similar to the uncharged attempted bank robbery,

which suggested that Whatley’s modus operandi evolved over time. Id. at

1218- 19.

      Under prong two, the prosecution must prove by a preponderance of the

evidence that the extrinsic act occurred. However, the uncorroborated testimony

of an accomplice can provide a sufficient basis for concluding that the defendant

committed extrinsic acts. United States v. Bowe, 221 F.3d 1183, 1192 (11th Cir.

2000).

      The third prong of the Rule 404(b) test consists of balancing, under Fed. R.

Evid. 403 (“Rule 403”), the probative value of the evidence against its prejudicial

effect, and requires the court to conduct the Rule 403 inquiry based “upon the

circumstances of the extrinsic offense.” United States v. Ramirez, 426 F.3d 1344,

1354 (11th Cir. 2005). We view the disputed evidence in the light most favorable

to admission, maximizing the probative value of the evidence and minimizing the

prejudicial impact of the evidence. United States v. Elkin, 885 F.2d 775, 784 (11th

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Cir. 1989). The risk of undue prejudice can be reduced by an appropriate limiting

instruction. Edouard, 485 F.3d at 1346.

      Here, the district court did not abuse its discretion in allowing Rule 404(b)

evidence of the Mississippi bank robbery because it was relevant to prove identity

and its probative value outweighed the risk of unfair prejudice, particularly in light

of the district court’s limiting instructions. Throughout the trial and on appeal,

Lamb’s sole argument was that he did not commit the Georgia robberies with

Williams; as a result, Lamb made identity the primary issue during trial. At trial,

the district court allowed in evidence of Lamb’s prior conviction for a Mississippi

bank robbery for the purpose of proving the identity of the robber in the charged

conduct. Here, the robberies were sufficiently similar to meet the standard

required to present the Rule 404(b) evidence.

      The Mississippi robbery occurred in July 2015, approximately one month

after the last robbery charged in the indictment. Dickerson, 248 F.3d at 1046.

During the Mississippi bank robbery, the robber asked to make a withdrawal, had a

note which specifically referenced shooting and dye packs, asked the teller to

“hurry the F up,” started counting down, had a backpack, and was described as

being around 6’3” or 6’4”, thin, young, black, and wearing a hat. Kay Vandiver,

the teller at the Mississippi bank identified Lamb as the robber. Williams testified

that she and Lamb robbed the bank together and used her Buick LaCrosse.


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      The first charged robbery was the robbery of the CVS which occurred in

December 2014. The CVS robbery had several similarities, including the use of

the same getaway car, partner, the use of a note, a gun, and a countdown.

Additionally, the CVS clerk identified the robber as being between 6’3” and 6’4”.

The second charged robbery was the Morrow Fidelity Bank robbery in early

January 2015. During the Morrow robbery, the robber had a note that stated he

had a gun, had a countdown, the same partner, and was identified as being 6’3” to

6’6”, slim, black, and leaving in the same getaway car. The third charged robbery

was of the McDonough Fidelity Bank robbery in late January 2015. In the

McDonough robbery, the robber had a gun, was somewhere around 6’3” to 6’5”,

170 pounds, wore a scarf, had the same partner, and the same getaway car. The

fourth charged robbery was of a Dollar General in April 2015. That robbery was

also similar because the robber had a gun, the same partner, the same getaway

vehicle, and was given a similar description. The final charged robbery was of the

Bank of North Georgia in June 2015. The robbery at the Bank of North Georgia

also had several similarities: the man asked to make a withdrawal, handed her a

note, went through a countdown, used the same getaway car and partner, and was

described similarly. Additionally, a dye pack went off following the Bank of

North Georgia robbery.




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      The robbery of the Bank of North Georgia was the closest in time to the

robbery in Mississippi and had the most similarities. There, the robber asked to

make a withdrawal, was described similarly, and used a note, a countdown, the

same getaway vehicle, and the same partner. See Whatley, 719 F.3d at 1218-19.

Additionally, the note in the Mississippi robbery specifically mentioned not to

include a dye pack, suggesting that Lamb had adapted his modus operandi. See id.

Furthermore, there were no major dissimilarities between the crimes, such as a

different weapon, multiple robbers in banks or convenience stores, or a vast change

in technique. See Lail, 846 F.3d at 1301. All of the robberies involved a similarly

described man, the same partner, the same getaway car, and very brief threats

interactions. The robberies do not appear to be so “commonplace” that any

individual could have committed then. Phaknikone, 605 F.3d at 1108.

      Furthermore, the Rule 404(b) evidence of the Mississippi bank robbery was

more probative than prejudicial. See Ramirez, 426 F.3d at 1345. Here, Lamb’s

primary defense was that he was not the one that committed the robbery; thus,

identity was the main issue during the trial, making the probative value of the Rule

404(b) evidence particularly high. See Smith, 459 F.3d at 1295. Additionally, the

district court provided multiple limiting instructions to the jury reducing the risk of

undue prejudice. Edouard, 485 F.3d at 1346. Thus, the district court did not abuse

its discretion by admitting the Rule 404(b) evidence because it was relevant to


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prove identity and its probative value outweighed its prejudicial effect especially in

light of the district court’s limiting instructions. Accordingly, we affirm Lamb’s

convictions.


                                         II.


       When the defendant properly preserves the claim, we will conduct a de

novo review of the claim. United States v. Jiminez, 564 F.3d 1280, 1284 (11th

Cir. 2009). The district court’s denial of a motion for judgment of acquittal will

be upheld if a reasonable trier of fact could determine that the evidence

establishes the defendant’s guilt beyond a reasonable doubt. United States v.

Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000). We view the facts and draw

all reasonable inferences in the light most favorable to the government. United

States v. Hansen, 262 F.3d 1217, 1236 (11th Cir. 2001) (citation omitted). We

must sustain a verdict where there is a reasonable basis for it in the record.

United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). In conducting

sufficiency review, we will not consider testimony incredible as a matter of law

unless it cannot, on its face, be believed, such as where the witness could not

have observed certain events or they are contrary to the laws of nature. United

States v. Thompson, 422 F.3d 1285, 1291 (11th Cir. 2005).



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      The district court did not err by denying Lamb’s motion for acquittal.

Lamb’s ex-girlfriend’s testimony was not incredible as a matter of law: she

testified that she and Lamb committed each robbery together, and the government

presented additional testimony and evidence that corroborated that Lamb robbed

the stores and banks. See Thompson, 422 F.3d at 1291. The government

introduced several witnesses who testified about the robber’s height and

appearance as well as the getaway car. The witnesses corroborated some of the

details Williams provided about the various robberies. It also introduced

surveillance footage and photos of several of the robberies. A reasonable trier of

fact could find Lamb guilty beyond a reasonable doubt on Counts 1-6, especially

when the evidence is viewed in the light most favorable to the government. See

Hansen, 262 F.3d at 1236; Rodriguez, 218 F.3d at 1244. Accordingly, we affirm

Lamb’s convictions.

AFFIRMED.




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