                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 10-2599
                                     ____________

                            UNITED STATES OF AMERICA

                                           v.

                                  DANIEL CHARLES,

                                                     Appellant
                                     ____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 06-cr-00526-3)
                    District Judge: Honorable Lawrence F. Stengel
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 20, 2011

                 Before: HARDIMAN and ALDISERT, Circuit Judges
                             and RESTANI * Judge.

                                 (Filed: June 22, 2011)

                                     ____________

                              OPINION OF THE COURT
                                   ____________

HARDIMAN, Circuit Judge.


      *
        The Honorable Jane A. Restani, Judge of the United States Court of International
Trade, sitting by designation.
       Daniel Charles appeals his judgment of conviction after a jury found him guilty of

six counts arising from the purchase and subsequent use of a firearm in a commercial

robbery. Charles challenges the sufficiency of the evidence as well as the District Court‟s

denial of his motions to sever and to exclude physical evidence. We will affirm.

                                              I

       Because we write for the parties, we recount only those facts necessary to our

decision. We view the facts in the light most favorable to the Government as the verdict

winner. United States v. Abbott, 574 F.3d 203, 204 n.1 (3d Cir. 2009).

       On January 6, 2006, Tasha Betancourt purchased two Ruger 9mm handguns from

a federally licensed firearms dealer in Philadelphia, Pennsylvania and certified in writing

that she was the actual purchaser of the guns. Betancourt later testified that she was paid

$1,000 to buy the guns for Daniel Charles and Aaron St. Jean.

       On January 25, 2006, three men armed with handguns and wearing ski masks

robbed the Rite Aid store at 6600 North Broad Street in Philadelphia, where both Charles

and St. Jean had been employed. While two robbers stayed near the front of the store, the

third robber took the assistant manager, Ernesto Elefante, to the back office and forced

him at gunpoint to open and empty two safes. The robber stole approximately $2,300 in

cash, including a box containing $500 in rolled quarters. Elefante, who knew Charles

from his employment at Rite Aid, testified at trial that the robber was taller than Charles

and that he did not recognize the robber‟s voice.

                                              2
       During the robbery, an employee fled the store and alerted two Philadelphia police

officers. As the officers approached, they witnessed the two other robbers exiting the

store and gave chase. The two robbers were apprehended and identified as St. Jean and

another former Rite Aid employee, Walter Carolina, Jr. The officers recovered firearms

from both men, and St. Jean‟s weapon was later identified as one of the Ruger 9mm

handguns that Betancourt purchased. The third robber was not apprehended at the scene.

       The Rite Aid manager, Michael Anderson, arrived at the scene and identified St.

Jean and Carolina. Anderson also advised the officers that he suspected the third robber

was Charles because the three men were friendly while working at Rite Aid. In addition,

Elefante told police that he had seen Charles and St. Jean together in the store about an

hour before the robbery.

       The police proceeded to Charles‟s residence, where they arrested him as he left the

building. Police obtained a search warrant for Charles‟s residence and executed it the

next morning. This search yielded a black ski mask, a box of quarters, and the other

Ruger 9mm handgun purchased by Betancourt. At trial, Elefante identified the box of

quarters as the same one that had been stolen from the Rite Aid. All three items were

recovered from a bedroom in the home that also contained a driver‟s license and other

documents belonging to Charles. At trial, Charles‟s brother testified that he shared the

room with Charles, that no one else placed items in their room, and that none of the

recovered items belonged to him.

                                             3
       On November 28, 2006, a grand jury in the Eastern District of Pennsylvania

returned a superseding indictment charging Charles, St. Jean, and Carolina with robbery

and firearms offenses.1 Carolina pleaded guilty while Charles and St. Jean went to trial.

During jury selection, the District Court severed the trials of Charles and St. Jean, and

both were convicted on all counts by separate juries.

       Prior to trial, Charles moved to sever the straw purchase, felon-in-possession, and

robbery counts. He also moved to exclude evidence of the gun and ammunition

recovered from his home from the trial of the robbery counts. Charles argued that there

was no direct evidence to link him or the gun recovered from his room to the robbery. He

contended that allowing the separate counts to be tried together or admitting evidence of

the gun would unfairly prejudice the jury‟s view of the robbery counts. The District

Court agreed with Charles as to the felon-in-possession count, but refused to sever the

other counts or to exclude the gun, finding that the offenses arose out of the same pattern

of activity and the evidence of the gun was closely related to the robbery offense.


       1
         Charles was charged with six counts: conspiring to make and making false
statements to a federal firearms dealer, in violation of 18 U.S.C. §§ 2, 371, and
924(a)(1)(A) (Counts 1 and 2, the straw purchase offenses); conspiracy to interfere and
interference with interstate commerce by robbery, in violation of 18 U.S.C. §§ 2 and
1951(a), and using and carrying a firearm during a crime of violence, in violation of 18
U.S.C. §§ 2 and 924(c)(1) (Counts 3, 4, and 5, the robbery offenses); and being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 6, the felon in
possession offense). St. Jean was charged with the same counts as Charles, except for the
§ 922(g) felon in possession charge. Carolina was charged only with the robbery and §
924(c)(1) offenses.

                                              4
       After trial was concluded, Charles timely moved to set aside the jury verdict for

insufficient evidence. He argued that a reasonable jury could not find beyond a

reasonable doubt that he was guilty of the robbery offenses when no direct evidence

showed that he participated in the robbery and Elefante‟s testimony suggested that

Charles was not the third robber. The District Court denied the motion.

                                              II

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a)(1). We exercise plenary review over the joinder of counts under Federal Rule

of Criminal Procedure 8(a), United States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003),

and review the District Court‟s decision not to sever under Rule 14(a) for abuse of

discretion, United States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005). We review the

District Court‟s decision to admit or exclude evidence under Federal Rule of Evidence

403 for abuse of discretion, reversing only if the decision was arbitrary or irrational.

United States v. Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 665 (3d Cir. 2000) (en

banc). Finally, “[i]n reviewing a challenge to the sufficiency of the evidence, we „must

determine whether, viewing the evidence most favorably to the [G]overnment, there is

substantial evidence to support the jury‟s guilty verdict.‟” United States v. Urban, 404

F.3d 754, 762 (3d Cir. 2005) (quoting United States v. Idowu, 157 F.3d 265, 268 (3d Cir.

1998)).




                                              5
                                               A

         Charles argues that the District Court erred in refusing to sever the straw purchase

charges from the robbery charges under Federal Rule of Criminal Procedure 14(a)

because they were not properly joined in the indictment under Rule 8(a) and because the

joinder prejudiced the jury against him. Rule 8(a) allows counts to be joined in a single

indictment when they “are of the same or similar character, or are based on the same act

or transaction, or are connected with or constitute parts of a common scheme or plan.”

FED. R. CRIM. P. 8(a). However, under Rule 14(a), the court may sever properly joined

counts for trial if joinder “appears to prejudice a defendant or the government.” FED. R.

CRIM. P. 14(a). In determining whether a Rule 14 ruling was an abuse of discretion,

“[t]he proper question on appeal is whether the jury could have been reasonably expected

to compartmentalize the allegedly prejudicial evidence in light of the quantity and limited

admissibility of the evidence.” United States v. De Peri, 778 F.2d 963, 984 (3d Cir.

1985).

         The indictment in this case sufficiently alleged that the straw purchase and robbery

charges were “connected with or constitute[d] parts of a common scheme or plan”

because it alleged that Charles and St. Jean intended to use the guns purchased by

Betancourt to commit the robbery. Given this allegation, the short time period between

the straw purchase and the robbery, and the fact that one of the guns was recovered from

St. Jean at the robbery, it was not error for these counts to be joined in the same

                                               6
indictment. See United States v. Weber, 437 F.2d 327, 331 (3d Cir. 1970).

       The crux of Charles‟s argument for severance under Rule 14 is that, because the

jury heard evidence that he was involved with the straw purchase of a gun used in the

crime (St. Jean‟s gun), the jury ignored the lack of direct evidence tying Charles to the

robbery. Charles has the burden of showing that he was prejudiced by the joint trial, De

Peri, 778 F.2d at 983, but he provides no evidence as to why the jury would be unable to

compartmentalize the evidence as to the separate counts. Thus, his argument for

supposed prejudice amounts to no more than “the same potential for prejudice that every

criminal defendant faces when multiple counts are tried together,” i.e., insufficient

prejudice to warrant severance. United States v. Joshua, 976 F.2d 844, 848 (3d Cir.

1992), abrogated on other grounds by Stinson v. United States, 508 U.S. 36 (1993).

Moreover, because the evidence of the straw purchase would be admissible in a trial of

the robbery offenses to show Charles‟s ownership of the handgun and relationship with

St. Jean, severing the trials would have had little effect on the information available to the

jury. See United States v. Eufrasio, 935 F.2d 553, 571 (3d Cir. 1991) (severance not

warranted when evidence would be admissible in both trials). Accordingly, the District

Court did not abuse its discretion by denying Charles‟s motion to sever.

                                              B

       Charles also argues that the District Court erred by denying his motion under Rule

403 of the Federal Rules of Evidence to exclude the Ruger 9mm handgun and

                                              7
ammunition recovered from his home from the trial on the robbery counts. Rule 403

provides that otherwise admissible “evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury . . . .” Charles argues that the evidence was not probative of the

robbery because there was no direct evidence linking it to the robbery and its prejudicial

effect was significant because it allowed the jury to make the “logical leap” that the gun

was the one used by Charles in committing the robbery.

       Charles understates the probative value and overstates the prejudicial effect of the

evidence because his argument rests on the false premise that a jury cannot make logical

inferences or base its decision on circumstantial evidence. In actuality, “[a] jury may use

circumstantial evidence to support reasonable inferences of facts.” United States v.

Silveus, 542 F.3d 993, 1004 (3d Cir. 2008) (citing United States v. McNeill, 887 F.2d 448,

450 (3d Cir. 1989) (“Inferences from established facts are accepted methods of proof

when no direct evidence is available so long as there exists a logical and convincing

connection between the facts established and the conclusion inferred.”)). An abundance

of such circumstantial evidence—that Charles and St. Jean arranged the straw purchase

together, that St. Jean used one of the handguns in the robbery, and that the other handgun

was recovered from Charles‟s room along with a ski mask and proceeds from the

robbery—makes the inference that Charles used the handgun recovered from his room in

the robbery eminently reasonable. The District Court did not abuse its discretion in

                                             8
refusing to exclude this evidence.

                                              C

       Charles argues that the District Court erred by not granting his Rule 29 motion to

set aside the jury verdict for insufficient evidence. In ruling on a Rule 29 motion, “[w]e

will sustain the verdict if any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Thus, a claim of insufficiency of the evidence

places a very heavy burden on an appellant.” Urban, 404 F.3d at 762-63 (quoting United

States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)) (internal quotation marks omitted). We

must be “ever vigilant . . . not to usurp the role of the jury by weighing credibility and

assigning weight to the evidence, or by substituting [our] judgment for that of the jury.”

United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005).

       Although Charles argues that a reasonable jury could not have concluded that he

participated in the robbery of the Rite Aid based on the evidence presented, we have little

difficulty in finding that it could. Viewed in the light most favorable to the Government,

the sum of the evidence—including, inter alia, the straw purchase of the handguns, the

testimony that Charles and St. Jean were together in the store before the robbery, and the

physical evidence recovered from Charles‟s home—renders reasonable the conclusion

that Charles participated in the robbery. The fact that Elefante did not recognize the

disguised robber who held him at gunpoint, even though he knew Charles, does not

obviate the rationality of that conclusion. Charles presented that argument to the jury, and

                                              9
the jury found it unpersuasive, perhaps concluding that Elefante was mistaken due to fear

or confusion. Likewise, we are unpersuaded by Charles‟s attempt to challenge the

physical evidence recovered from his home by arguing that the gun, ski mask, and box of

rolled quarters were not conclusively identified as being connected to the robbery.

Although the jury was not required to do so, it was permitted to conclude that those items

evidenced Charles‟s participation in the robbery. Because the evidence presented could

reasonably support the jury‟s finding of guilt, it was not error for the District Court to

deny Charles‟s motion to set aside the jury verdict.

                                              III

       For the foregoing reasons, we will affirm the District Court‟s judgment of

conviction.




                                              10
