                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           JUN 13 2001
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 00-3275
          v.                                                D. Kan.
 TUAN M. PHAM,                                    (D.C. No. 99-10110-02)

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before HENRY , BALDOCK , and BRISCOE , Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

      Tuan M. Pham was charged by indictment with fifteen counts related to

four different robberies in Wichita, Kansas: (1) the robbery of Airport Ampco


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Parking on June 3, 1999; (2) the robbery of After Dark Video on July 11, 1999;

(3) the robbery of Radio Shack on July 21, 1999; and (4) the robbery of Prologic

Computer Store on August 3, 1999. After a jury trial, Mr. Pham was convicted of

fourteen of the fifteen counts   1
                                     and was sentenced to a term of imprisonment of

1,076 months. On appeal, Mr. Pham argues that the district court erred in

allowing the government to introduce evidence of a prior robbery and that the

district court erred in denying his motion to suppress evidence and statements

obtained after a search of his girlfriend’s apartment. We affirm.




       1
         More specifically, Mr. Pham was convicted of one count of conspiracy to
commit robbery, a violation of 18 U.S.C. § 1951; one count of conspiracy to use a
firearm during and in relation to a crime of violence, a violation of 18 U.S.C. §
924(o); four counts of interference with commerce by robbery, a violation of 18
U.S.C. § 1951 and § 2; four counts of carrying a firearm during and in relation to
a crime of violence, a violation of 18 U.S.C. § 924(c)(1)(A) and § 2; three counts
of brandishing a firearm during and in relation to a crime of violence, a violation
of 18 U.S.C. § 924(c)(1)(A)(ii) and § 2; and one count of unlawful possession of
a firearm by a felon, a violation of 18 U.S.C. § 922(g)(1).

                                              -2-
                                            I.

      The first issue raised on appeal is whether the district court erred in

permitting the government to introduce evidence of a prior robbery. Under

Federal Rule of Evidence 404(b), “[e]vidence of other crimes, wrongs, or acts is

not admissible to prove the   character of a person in order to show action in

conformity therewith.” Fed. R. Evid. 404(b) (emphasis added). However,

evidence of other crimes may be admitted “for      other purposes, such as proof of

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

mistake or accident.”   Id. (emphasis added). “We review the district court’s

admission of evidence under [Rule] 404(b) for an abuse of discretion.”      United

States v. Wilson , 107 F.3d 774, 782 (10th Cir. 1997). “An abuse of discretion

occurs when a judicial determination is arbitrary, capricious[,] or whimsical.”

United States v. Shumway , 112 F.3d 1413, 1419 (10th Cir. 1997) (internal

quotation marks omitted). “If the admission [was] erroneous, however, we will

not disturb [Mr. Pham’s] conviction if the error [was] harmless. An erroneous

admission of evidence is harmless unless it had a ‘substantial influence’ on the

outcome or leaves one in ‘grave doubt’ as to whether it had such effect.”    United

States v. Bornfield , 145 F.3d 1123, 1131 (10th Cir. 1998) (citations omitted).

      At trial, the government presented – over Mr. Pham’s objection – the

following evidence concerning a prior robbery. Kyle Ballantine testified that, in


                                            -3-
October 1995, Mr. Pham approached him and asked if he “would be interested in

making some easy money.” Rec. vol. III, doc. 85, at 90 (trial testimony of Mr.

Ballantine). According to Mr. Ballantine, Mr. Pham’s plan was to rob a Total

convenience store, at which Mr. Pham had once been an employee, in Andover,

Kansas.

      Mr. Ballantine further testified that he and Mr. Pham did, in fact, carry out

the plan. During the course of the robbery, Mr. Pham pulled a handgun on the

clerk working at the store. Mr. Pham directed the clerk to the store’s back area

where a closet was located, asked the clerk to get inside the closet, and then

proceeded to tie the clerk up with a speaker wire that he had brought with him.

Afterwards, Mr. Pham disrupted the store’s surveillance system. Mr. Ballantine

and Mr. Pham then went through the store, taking merchandise from the shelves

and money from the cash register and safe.

      In a written order, the district court explained that evidence of the prior

robbery was properly admitted under Rule 404(b) because “the similarity between

[the prior robbery] and the conduct charged in this case tended to show that the

same person committed both offenses.” Rec. vol. I, doc. 73, at 1 (memorandum

and order, filed Aug. 14, 2000) (emphasis added). In short, the prior robbery was




                                         -4-
relevant in establishing identity with respect to the four charged robberies.   2



       Mr. Pham disagrees. According to Mr. Pham, “[n]othing in the records

shows the prior [robbery] to be    so similar in nature that   only the same person

could have committed the [four charged robberies].” Aplt’s Br. at 10 (emphasis

added). Without sufficient similarity, evidence of the prior robbery was not proof

of identity but rather proof of bad character only and, as a general matter,

character evidence is not admissible.      See Fed. R. Evid. 404(a) (“Evidence of a

person’s character or a trait of character is not admissible for the purpose of

proving action in conformity therewith on a particular occasion . . . .”).

       In response, the government contends that district court correctly concluded

that the evidence served a proper noncharacter purpose – i.e., proof of identity.

The government asserts,

       Here, the evidence of [Mr.] Pham’s prior robbery of the Total
       [convenience store] and the robberies charged at trial share [at] least
       two distinct features such that they demonstrate a ‘signature quality,’
       the geographic location and the defendant’s common practice of
       binding and/or placing victims in small rooms during the robberies.
       These common practices are sufficiently distinctive as to be
       probative of identity.

       2
          Mr. Pham’s defense at trial was that “Mark” – a man who was similar in
appearance to himself – was responsible for the four robberies.     See Rec. vol. VI,
doc. 88, at 509 (testimony of Mr. Pham);     id. at 545 (testimony of defense witness,
Mr. Battle). One of the government’s witnesses, however, testified that “Mark
never existed[;] [i]t was just a name that was made up between me and Mr. Pham
to use in front of people that we did not know so they would not use our real
names.” Rec., vol. IV, doc. 86, at 280 (testimony of Mr. Billings).

                                             -5-
Aple’s Br. at 15-16.

      Under this court’s case law, “evidence of another crime is probative only if

the ‘other crime’ is similar to the crime charged – but the two crimes need not be

identical. If the crimes share elements that possess ‘signature quality,’ evidence

of the ‘other crime’ may be admitted.”     United States v. Gutierrez , 696 F.2d 753,

755 (10th Cir. 1982) (citations omitted). “Elements relevant to a ‘signature

quality’ determination include the following: geographic location, the unusual

quality of the crime, the skill necessary to commit the acts, or use of a distinctive

device.” Shumway , 112 F.3d at 1420 (citations omitted). This list, of course, is

not exhaustive, but it does serve to underscore an important point: For evidence

of a prior crime to be admissible to prove identity with respect to the crime

charged, “‘[m]uch more is demanded than the mere repeated commissions of

crimes of the same class . . . . The pattern and characteristics to the crimes must

be so unusual and distinctive   as to be like a signature.’”   United States v.

Connelly , 874 F.2d 412, 417 (7th Cir. 1989) (quoting      McCormick on Evidence §

190, at 559-60 (3d ed. 1984)) (emphasis added);       see also United States v. Myers ,

550 F.2d 1036, 1045-46 (5th Cir. 1977) (noting that the other crime and the crime

charged must “bear such peculiar, unique, or bizarre similarities as to mark them

as the handiwork of the same individual”) (internal quotation marks omitted).

      As noted above, the government in the instant case points to two elements

                                            -6-
shared by the prior robbery and the four charged robberies that gave rise to a

“signature quality”: (1) the geographic location and (2) the practice of binding

and/or placing victims in small rooms. Although we question the distinctiveness

of these similarities, at least in the case at hand,   3
                                                           we need not decide whether they


       3
          With respect to the geographic location, we note that the prior robbery
took place in Andover, Kansas, while the four charged robberies took place in
Wichita, Kansas. Though Andover is not far from Wichita (approximately twenty
miles), that fact does not make the prior robbery and the four charged robberies
particularly distinctive. This was not a situation in which the prior crime and the
offense charged occurred at the same exact address or in which the prior crime
and the offense charged took place in an unusual geographic location.    See, e.g. ,
Shumway , 112 F.3d at 1420 (same archaeological site out of 22,000 in the
county); United States v. McGuire , 27 F.3d 457, 461 (10th Cir. 1999) (medium-
sized Midwestern cities containing a small branch bank with few employees and
with easy access to an interstate highway located near the parking area of a
shopping center); United States v. Sanchez , 988 F.2d 1384, 1394 (5th Cir. 1993)
(same exact address); United States v. Porter , 881 F.2d 878, 887 (10th Cir. 1989)
(small rural Kansas communities).

        With respect to the practice of binding victims and/or placing them in small
rooms, we note that one of the charged robberies did not involve either any
binding or confining. When After Dark Video was robbed, one victim (a
customer) managed to escape and so was never subject to the practice, but the
other victim (an employee) was never tied up or taken to a small room.
Furthermore, we point out that the practice of binding victims and/or placing them
in small rooms does not seem “so unusual and distinctive as to be like a
signature.” Connelly , 874 F.2d at 417 (internal quotation marks omitted). That
is, it does not seem particularly unusual for victims of a robbery to be restrained
by offenders in such a fashion.   Cf. United States v. Bailey , 111 F.3d 1229, 1234,
(5th Cir. 1997) (agreeing with the defendant “that the facts that the women were
all single and were physically touched in some way while they were sleeping is
not compelling because these are characteristics shared by a number of sexual
assaults”; but ultimately concluding that there was a “signature quality” because
of “the location and timing of each intrusion – Fort Hood during pre-dawn
                                                                        (continued...)

                                               -7-
rose to the level of a “signature quality.” Even if the offenses lacked a “signature

quality,” such that evidence of the prior robbery was not admissible under Rule

404(b), we conclude that the introduction of the evidence was harmless error.

      We take note first of the “substantial evidence” pointing to Mr. Pham’s

guilt. United States v. Oberle , 136 F.3d 1414, 1419 (10th Cir. 1998). Witnesses

in all four robberies identified Mr. Pham as the offender in photographic lineups.

Christopher Billings testified not only that he was Mr. Pham’s accomplice in three

of the four robberies but also that Mr. Pham had confessed to the fourth robbery.

Finally, physical evidence seized from the residence of Mr. Pham’s girlfriend

linked Mr. Pham to the four offenses. In addition, we take note of the limiting

instruction given to the jury after evidence of the prior robbery had been

introduced. See id. (holding that the error in admitting evidence did not require

reversal in part because a limiting instruction was given). The district court

informed the jury that “the mere fact that a defendant may have committed a

similar act in the past is not evidence that he committed such acts in this case.

The Defendant is only on trial for the crimes charged and for those offenses

alone. You may not convict a person simply because you believe he may have

committed some acts, even bad acts, in the past   .” Rec. vol. III, doc. 85, at 98



(...continued)
hours”).

                                           -8-
(limiting instruction, given at the conclusion of the direct examination of Mr.

Ballantine) (emphasis added). Because of the substantial evidence of Mr. Pham’s

guilt and this limiting instruction, we conclude that any error in admitting

evidence of the prior robbery was harmless.



                                         II.

      The second issue raised by Mr. Pham is that the district court erred in

denying his motion to suppress the evidence obtained through a search of his

girlfriend’s apartment. We review a denial of a motion to suppress – at least with

respect to the district court’s factual findings – for clear error. However, we

review de novo “[t]he ultimate conclusion of the reasonableness of a search and

seizure under the Fourth Amendment.”     United States v. Eylicio-Montoya   , 18 F.3d

845, 848 (10th Cir. 1994).

      In a written order, the district court made the follow factual findings with

respect to the search at issue. On August 6, 1999, members of the FBI Violent

Crimes Task Force – including FBI Special Agent Charles Pritchett and Detective

Michael Hennessy of the Wichita Police Department – were sent to 639 North

Bebe in Wichita, Kansas, in search of a suspect by the name of “Tuan.” The Task

Force believed “Tuan” to have been involved in a series of armed robberies. The




                                         -9-
residence at 639 North Bebe was leased to a woman named Jamilabi Abdul, who

was known to be “Tuan’s” girlfriend.

      Upon arriving at the apartment, Agent Pritchett and Detective Hennessy

saw a red car that matched the description they had been given of “Tuan’s” car.

Believing “Tuan” to be armed and dangerous, Agent Pritchett and Detective

Hennessy decided to create a ruse to lure him out of the apartment. They called

two uniformed officers to the scene to assist them, and Detective Hennessy – who

was in plain clothes – stationed his car next to the red car, pretending that he had

hit it. The uniformed officers knocked on Ms. Abdul’s door and, when she

answered, asked if the red car belonged to her as it had been involved in an

accident. Ms. Abdul said it was her car and went outside to investigate the staged

false accident. For a few minutes, she spoke with Mr. Hennessy, who was posing

as the person responsible for the accident. The uniformed officers then asked Ms.

Abdul to get her insurance papers so that they could write up a report, and so Ms.

Abdul went back into the apartment. (During the conversation between Ms.

Abdul and the others, Agent Pritchett was hiding out of sight at the side of the

house.)

      At this point, Detective Hennessy and Agent Pritchett decided that it was

not worthwhile to continue the ruse as “Tuan” had not come out of the apartment.

The two knocked on Ms. Abdul’s door – with the uniformed officers a short


                                         -10-
distance behind – and, when she answered, identified themselves as agents of the

FBI Violent Crimes Task Force. They asked Ms. Abdul if “Tuan” was inside and

she responded “no.” Detective Hennessy then asked if they could “come in and

take a look.” Rec. vol. II, doc. 51, at 23 (testimony of Detective Hennessy). In

response, Ms. Abdul stepped back and said “yes.” Detective Hennessy, Agent

Pritchett, and the uniformed officers thus entered the residence.

       Upon entering, Detective Hennessy and Agent Pritchett went up the stairs

to investigate while the uniformed officers went downstairs. Detective Hennessy

found nothing upstairs and so returned down the staircase a few minutes later.

When he did so, he saw that the uniformed officers had Mr. Pham in custody.

The officers told Detective Hennessy that Mr. Pham had been discovered

downstairs.

       After Mr. Pham had been arrested, Detective Hennessy asked Ms. Abdul

who was the person the officers had found. Ms. Abdul said that the man’s name

was “Kyle.” After several more minutes of conversation, Ms. Abdul admitted that

the man was in fact “Tuan” – more specifically, Tuan Pham. Detective Hennessy

then told Ms. Abdul that “[they] were interested in doing a search of her

apartment while [they] were there because [they] felt like there was stolen

property inside.”   Id. at 28 (testimony of Detective Hennessy). He asked Ms.

Abdul for permission to search, and Ms. Abdul replied that “she’[d] do it.”   Id. at


                                           -11-
29 (testimony of Detective Hennessy). In addition to her oral consent, Ms. Abdul

gave to Detective Hennessy her written consent – i.e., she signed a “waiver of

search” form. The search that followed yielded physical evidence linked to the

four robberies.

      On appeal, Mr. Pham argues that the evidence seized from the apartment

should not have been admitted because (1) Ms. Abdul did not know that Detective

Hennessy and Agent Pritchett were law enforcement officers when she granted

them permission to enter the apartment, (2) Ms. Abdul never consented to the two

uniformed officers’ entering the apartment, and (3) Ms. Abdul only allowed

Detective Hennessy and Agent Pritchett to enter the apartment – i.e., she

consented only to their entrance, not to their search of the residence for Mr.

Pham. 4 The difficulty with Mr. Pham’s arguments is that each one contradicts the


      4
         We should note that the government has not challenged Mr. Pham’s
standing with respect to the search of his Ms. Abdul’s apartment. Thus, we
proceed with the assumption that Mr. Pham did have a reasonable expectation of
privacy in the apartment.  See United States v. Kapperman , 764 F.2d 786, 791 n.6
(11th Cir. 1985) (“Given the government’s failure to raise this question [of
standing for purposes of the Fourth Amendment], we do not address it.”).

       This assumption is largely borne out by the evidence presented at the
suppression hearing, in which Mr. Pham testified that he “stayed there most
nights.” Rec. vol. II, doc. 51, at 105 (testimony of Mr. Pham); see also id. at 98
(testimony of Ms. Abdul) (stating that Mr. Pham stayed with her a few nights, off
and on). In Minnesota v. Olson , 495 U.S. 91 (1990), the Supreme Court stated
“[the defendant’s] status as an overnight guest is alone enough to show that he
had an expectation of privacy in the home that society is prepared to recognize as
                                                                       (continued...)

                                         -12-
factual findings made by the district court. Our review of the record does not

persuade us that the district court made any clear error with respect to these

factual findings. While Ms. Abdul and Mr. Pham gave testimony at the

suppression hearing that supports Mr. Pham’s arguments, the district court

explicitly rejected their testimony as not credible.   See United States v. Gama-

Bastidas , 142 F.3d 1233, 1239-40 (10th Cir. 1998) (“[J]udging the credibility of

the witnesses, determining the weight to be afforded the testimony, and drawing

reasonable inferences and conclusions from the testimony are within the province

of the district court.”).



                                             III.

       The final issue raised by Mr. Pham is that the district court erred in denying

his motion to suppress statements made to the police regarding the evidence

seized from Ms. Abdul’s apartment. In essence, Mr. Pham argues that his

statements should have been excluded because the search of Ms. Abdul’s

apartment was not legal. (Mr. Pham does not assert a Fifth Amendment violation,

only a Fourth Amendment one.) Because we have concluded that the search of

Ms. Abdul’s apartment did not violate the Fourth Amendment, Mr. Pham’s



(...continued)
reasonable.” Id. at 96-97.

                                             -13-
argument must fail. A valid search cannot bear “fruit of the poisonous tree.”   See

United States v. Lewis , 24 F.3d 79, 82 (10th Cir. 1994) (holding that defendant’s

statements to the police after   Miranda warnings were not “fruit of the poisonous

tree,” where the automobile search which the defendant asserted to be the

poisonous tree was valid).



                                           IV.

       Accordingly, we AFFIRM the judgment of the district court.



                                                  Entered for the Court,



                                                  Robert H. Henry
                                                  Circuit Judge




                                           -14-
