UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4768

JAMES RUSSELL PURNELL,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4857

ANDRE EDWIN ALLEN,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-95-405-CCB)

Argued: May 5, 1998

Decided: September 16, 1998

Before WILKINSON, Chief Judge, and ERVIN
and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Antonio Gioia, Baltimore, Maryland, for Appellant Allen;
Richard Christopher Bittner, BITTNER & DEMYAN, Glen Burnie,
Maryland, for Appellant Purnell. Thomas Michael DiBiagio, Assis-
tant United States Attorney, Baltimore, Maryland, for Appellee. ON
BRIEF: Lynne A. Battaglia, United States Attorney, Baltimore,
Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

After a joint trial, Andre Allen was convicted of three counts of
bank robbery in violation of 18 U.S.C. § 2113(a), (f) (1994) and three
counts of using and carrying a firearm in violation of 18 U.S.C.
§ 924(c) (1994), and James Purnell was convicted of one count of
bank robbery in violation of 18 U.S.C. § 2113(a), (f) (1994) and one
count of using and carrying a firearm in violation of 18 U.S.C.
§ 924(c) (1994). Allen and Purnell now appeal those convictions, con-
tending that the trial court erred in denying their motions to sever
their trials and in admitting evidence of other crimes. Allen separately
contends that the trial court erred in denying his motion to sever his
offenses, and Purnell contends that the court improperly limited his
cross-examination of a government witness. Finding no reversible
error, we affirm.

I.

Allen committed three separate bank robberies on three separate
days, June 16, June 22, and June 29, 1995. Purnell participated in the
robbery on June 22.

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Government witness Thornton Armstead testified that on June 16,
1995, he planned that day's bank robbery with Allen, Purnell, and
Perry Colter (who pleaded guilty to the robbery and a related firearms
charge). Armstead had also pleaded guilty to bank robbery and a gun
charge as a result of his participation in the June 16 robbery, and he
testified against Allen and Purnell pursuant to his plea agreement with
the government. At trial Armstead explained that Purnell participated
in the June 16 planning discussions but left those discussions to buy
drugs. Before Purnell returned, the other three men had left to rob the
bank. Allen and Colter carried out the robbery. (Once the three were
near the bank, Armstead was dispatched to drive a second car back
to his house.) Following the robbery, Allen and Colter regrouped with
Armstead at the latter's house, and Purnell joined them there. Arm-
stead was then sent to buy drugs with the robbery proceeds. When
Armstead returned, he, Allen, and Purnell shared the drugs, while
Allen described the day's robbery and revealed his intent to rob
another bank.

On June 22, 1995, Allen, Colter, and Purnell robbed a second bank.
Armstead testified that the men planned the robbery at his house and
returned there after the robbery to divide the money. On June 29,
1995, Allen and Colter robbed a third bank, and Allen confessed to
that crime.

Armstead testified that in addition to the drug use on June 16, he
had, during the previous six months, regularly used drugs with Allen
and Purnell. Armstead further testified that during the same six-month
period prior to the bank robberies, he had participated in five other
armed robberies (of people, not banks) with Allen.

II.

Allen and Purnell claim that the district court abused its discretion
in denying their motions to sever their trials. Purnell, in particular,
contends that a severance was necessary because much of the evi-
dence related either to bank robberies that did not concern him or to
other crimes committed by Allen and Armstead alone. Purnell argues
that this "accumulation of evidence" against Allen and others could
have led the jury "to confusion or prejudice in assessing the evidence
against" him. Additionally, Purnell says that the denial of the motions

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to sever prejudiced him because he was not allowed to cross-examine
Armstead fully. The district court prevented Purnell from cross-
examining Armstead about (among other things) an unrelated crime
in which Armstead and Allen participated because of the risk of prej-
udice to Allen.

We review a district court's denial of a motion to sever for abuse
of discretion. See United States v. LaRouche, 896 F.2d 815, 830 (4th
Cir. 1990). Multiple defendants may be charged and tried together if
they are alleged to have participated in the same act or series of acts.
See Fed. R. Crim. P. 8(b). However, severance may be granted in the
district court's discretion if it appears that joinder prejudices a defen-
dant. See Fed. R. Crim. P. 14; United States v. Reavis, 48 F.3d 763,
767 (4th Cir. 1995). Allen and Purnell were charged jointly with par-
ticipating in the same act of robbing a bank (one count) and in using
a firearm in relation to the robbery (one count). Although there were
certain counts aimed only at Allen, the district court carefully
instructed the jury to consider each count and each defendant's
involvement in each count separately. The court also instructed the
jury that certain evidence was to be limited to one defendant (Allen)
and could not be considered "in any respect" against the other defen-
dant (Purnell). In addition, as discussed in Section V, infra, the limita-
tion on the cross-examination of Armstead did not unduly hamper
Purnell, as he was given ample opportunity to question the motives
and veracity of Armstead. We are satisfied that there was no prejudice
in trying Purnell and Allen together. Therefore, the district court did
not abuse its discretion in denying their motions to sever their trials.

III.

Allen also contends that the district court erred in denying his
motion to sever the offenses relating to each of the three charged bank
robberies. He argues that the consolidation of the multiple offenses
into a single trial prejudiced him by creating the risk that the jury ren-
dered a verdict based on the evidence of the three transactions collec-
tively, rather than considering each charge separately.

Multiple offenses may be charged and tried together if they are of
the same or similar character or are based on the same transaction or
multiple transactions constituting part of a common scheme. See Fed.

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R. Crim. P. 8(a). Again, a court, in its discretion, may order separate
trials of counts if it appears that a defendant is prejudiced by joinder.
See Fed. R. Crim. P. 14. It is not an abuse of discretion to deny a
motion for severance when "the offenses are identical or strikingly
similar in the method of operation and occur over a short period of
time." United States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995). The
bank robberies in this case occurred within a very short period of
time, thirteen days, and were similar in execution, that is, there were
similar methods of operation, including similar disguises. Thus, given
the similarities in the offenses and the court's instruction to the jury
to consider each count separately, the court did not abuse its discre-
tion in denying Allen's motion to sever the counts and allow him
three separate trials.

IV.

Purnell and Allen next claim that the district court abused its dis-
cretion in admitting evidence of other crimes. Government witness
Armstead testified that he used drugs together with both defendants
for a period of approximately six months before the charged crimes,
including on the day of one of the bank robberies, and that he had
committed several previous armed robberies with Allen. We conclude
that the testimony regarding drug use immediately before and after
the one bank robbery was properly admitted by the district court as
intrinsic to the crimes charged. However, the testimony concerning
earlier drug use and other robberies committed by Allen was extrinsic
to this case and thus subject to the restrictions of Rule 404(b) of the
Federal Rules of Evidence. We conclude that even if this evidence of
earlier crimes was not admissible under Rule 404(b), its admission
was harmless error.

Rule 404(b) excludes evidence concerning other crimes or wrong-
doing used to show a defendant's bad character. However, as a gen-
eral matter, this restriction on character evidence does not apply to
intrinsic acts -- acts that are "inextricably intertwined," "part of a sin-
gle criminal episode," or "necessary preliminaries" to the crime
charged. United States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996). This
rule permits witnesses to provide a full and complete account of
events, without having to avoid mentioning other bad acts that are
inseparably woven into that narrative.

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Armstead's testimony concerning drug use on the day of the June
16, 1995, robbery was intrinsic to the crimes charged because the
events of that day were inextricably intertwined. Armstead's testi-
mony about Purnell's drug purchase while the robbery was being
planned, the defendants' use of the robbery proceeds to buy more
drugs, and their consumption of the drugs while Allen discussed a fur-
ther robbery provided a valuable context to Armstead's account of the
crime. It allowed Armstead to testify freely about what happened that
day, placing the robbery within a natural and continuous sequence of
events and explaining the interaction among the participants in the
crime. This testimony about drug use on June 16 was therefore prop-
erly admitted.

We believe, however, that Armstead's testimony regarding shared
drug use with Allen and Purnell on prior occasions and of prior armed
robberies committed with Allen was extrinsic to these bank robberies.
Specifically, armed robberies (in the case of Allen) not involving
banks and drug use (in the case of both Allen and Purnell) that
occurred days, weeks, or months prior to the charged offenses are not
"inextricably intertwined" with the bank robberies. Nor are they part
of a single criminal episode or a necessary preliminary to the bank
robberies. Chin, 83 F.3d at 88. Finally, they are not unavoidably inter-
woven with the crimes charged, and they are sufficiently separate
from the bank robberies in time and nature. Because the prior crimes
were extrinsic acts, Armstead's testimony about them must be evalu-
ated under Rule 404(b). Id. at 87.

Under Rule 404(b), evidence of other crimes and wrongdoing may
be admitted if it is not used to show a propensity for that conduct but
rather is used for other purposes such as proof of motive or intent.
See, e.g., United States v. Queen , 132 F.3d 991, 994-95 (4th Cir.
1997). The government argues that Armstead's testimony regarding
past drug use with Allen and Purnell and past robberies with Allen
explains the nature of the relationship between the defendants and
provides a reason why the defendants would trust each other in plan-
ning a crime. See United States v. Boyd, 53 F.3d 631, 637 (4th Cir.
1995); United States v. McMillon, 14 F.3d 948, 955 (4th Cir. 1994).
The defendants, on the other hand, contend that this evidence is not
relevant to motive, intent, or preparation for the bank robbery crimes
charged. They are saying, in effect, that the evidence of the prior acts

                     6
was not "necessary in the sense that it is probative of an essential
claim or an element of the offense." United States v. Queen, 132 F.3d
at 997. The defendants further claim that the probative value of this
testimony is substantially outweighed by the danger of unfair preju-
dice. See Fed. R. Evid. 403.

Even if we assume that the evidence of past drug use and past rob-
beries was not admissible under Rule 404(b), its admission consti-
tuted, at most, harmless error. The other evidence against Allen was
overwhelming. He was implicated by the testimony of Armstead, a
participant in the bank robberies, and had been identified by eyewit-
nesses to the robberies on June 16 and June 22, 1995. Witnesses to
both robberies described him as wearing the same disguise of a
woman's wig and sunglasses, and items of his disguise were later
found in Armstead's house. He was arrested while fleeing from the
third robbery on June 29, 1995, and confessed his involvement in that
crime. The police found bait bills from that robbery in Allen's get-
away car and in the pocket of a jacket worn by him. The evidence
against Purnell was also strong. Purnell was fully implicated in the
June 22, 1995, robbery by Armstead, and Purnell was identified by
a bank teller as being one of the robbers. In addition to the strength
of the other evidence, the district court also gave a clearly worded
instruction to the jury, narrowly limiting the possible use of the evi-
dence of other crimes. Thus, as we have indicated, we conclude that
the admission of this evidence was, at most, harmless error.

V.

Purnell finally contends that the district court abused its discretion
in limiting his cross-examination of Armstead. Specifically, Purnell
claims that the court's limitation on cross-examination violated his
rights under the Sixth Amendment's Confrontation Clause because,
he says, he was not adequately allowed to explore Armstead's motive
for testifying or his possible bias.

Purnell was not permitted to cross-examine Armstead regarding
(1) his failure to pay child support, (2) his cooperation agreement
with the state of Maryland in an unrelated prosecution against Allen,
(3) his transfer to a different prison, and (4) a prior arrest not result-
ing in a conviction. However, the district court allowed Purnell to

                     7
cross-examine and impeach Armstead on wide-ranging topics, includ-
ing his drug use and drug dealing, prior criminal record, cooperation
agreement with the government, and general dishonesty.

Despite the limitation on cross-examination, we conclude that Pur-
nell had ample opportunity to explore Armstead's motivations and
biases and to test his credibility. The district court therefore did not
abuse its discretion in limiting cross-examination. See United States
v. Powers, 59 F.3d 1460, 1470 (4th Cir. 1995). Further, the district
court's limitation did not violate Purnell's rights under the Sixth
Amendment's Confrontation Clause. See United States v. Ambers, 85
F.3d 173, 176 (4th Cir. 1996).

Accordingly, we affirm the convictions of both Purnell and Allen.

AFFIRMED

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