                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                            _______________

                           Nos. 09-3896 & 09-3981
                             _______________

                       UNITED STATES OF AMERICA

                                       v.

                            TRAMELL BLEDSOE,
                                      Appellant (No. 09-3896)

                             PHILIP SAINSBURY
                                        Appellant (No. 09-3981)

                               _______________

                 On Appeal from the United States District Court
                     For the Eastern District of Pennsylvania
                (D.C. Criminal Action Nos. 2-07-cr-00165-001/2)
                 District Judge: Honorable Lawrence F. Stengel
                                _______________

                   Submitted Under Third Circuit LAR 34.1(a)
                              September 22, 2011
                              _______________

           Before: AMBRO, CHAGARES, and GARTH, Circuit Judges

                       (Opinion filed: November 2, 2011)
                              _______________

                                  OPINION
                               _______________

AMBRO, Circuit Judge
          A federal jury convicted Tramell Bledsoe and Philip Sainsbury of armed bank

robbery and related crimes. They appeal, arguing that the District Court admitted

inadmissible evidence and that the evidence against them was insufficient. Because we

agree with the District Court‟s rulings and believe that the evidence was sufficient, we

affirm.

I.        Background

          This case arises out of two bank robberies. The first robbery occurred in

December 2005 at the First Commonwealth Federal Credit Union in Palmer Township,

Pennsylvania. Employees identified the robbers as two African American men, one

much taller than the other but both wearing masks and armed with handguns. As the

robbery concluded, the taller man told the shorter robber “Hurry up, Moses.” The men

escaped into a waiting Jeep and fled the scene. A witness took down its license number

so that, while police did not apprehend the suspects, they were able to find the Jeep‟s

owner, Jamie Cooper.

          The ensuing investigation linked appellants Bledsoe and Sainsbury to the Credit

Union robbery. Cooper stated that he had loaned his Jeep to his friend “Moses” and told

officers that Moses had returned the Jeep shortly after the time given for the robbery.

With Cooper‟s cooperation, police identified the phone number that Moses had used to

speak with Cooper about the Jeep. That phone belonged to Sainsbury‟s sister-in-law.

Cooper also showed police where Moses lived. Police procured warrants for that home

and for the Jeep. Searches under those warrants turned up a stocking mask with

Bledsoe‟s DNA on it and letters in which Sainsbury referred to himself as “Moses.”

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       The second robbery occurred in December 2006 at the Lafayette Ambassador

Bank in Emmaus, Pennsylvania. Employees identified the robbers as two African

American men, one much taller than the other, wearing masks and armed with handguns.

As the robbery concluded, the taller man told the shorter one “Hurry up, hurry up.” The

men escaped into a waiting Audi and fled the scene.

       Just after the robbery, Emmaus police officer Jeremy Schilling, who was not

aware of the robbery, saw the Audi roll through a stop sign. He also observed that one of

the three African American men in the car saw him, then looked away nervously.

Schilling followed the Audi long enough to run its license number through his computer.

According to the computer, the license plate had been registered to a Lexus but was

expired. Schilling then sought to pull the Audi over. The driver parked in a residential

driveway and got out of the car, walking toward the house. Schilling ordered the driver

to return to the car, which he did.

       As Schilling approached the Audi, Bledsoe got out of the back seat and ran.

Schilling chased Bledsoe through the residential neighborhood and nearby auto

dealerships. Schilling announced his foot chase over the police radio at about the same

time that news of the robbery, which had taken place nearby, came over the radio. Other

officers responded, caught, and arrested Bledsoe. They found rolls of cash on him and a

sweatshirt matching the bank robber‟s sweatshirt in a shed where Bledsoe had briefly

hidden from Schilling.

       Police could not find Sainsbury or the Audi‟s driver after returning to the site of

the traffic stop. However, they recovered a glove there later determined to have

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Sainsbury‟s DNA in it. They also found that the Audi was registered to Sainsbury‟s

sister-in-law. Sainsbury was further linked to the second robbery as a result of calls that

Bledsoe made from prison. Bledsoe frequently called Joshua Burton, another accomplice

who was then at liberty (but later pled guilty), asking him to negotiate with “Wet Boy”

about splitting proceeds from the robbery. During those calls, Bledsoe told Burton when

“Wet Boy” was and was not in prison with him. Sainsbury was in that prison on other

charges during the same periods as “Wet Boy.”

       With respect to both robberies, a federal grand jury charged Bledsoe and

Sainsbury with conspiracy to commit armed bank robbery, armed bank robbery, and

using and carrying a firearm during a violent crime. The grand jury also charged Bledsoe

with possession of a firearm by a convicted felon. Both defendants elected to proceed to

trial. After nearly three weeks of trial, the jury convicted Bledsoe and Sainsbury on all

charges.

II.    Discussion

       The District Court had jurisdiction under 18 U.S.C. § 3231, and we have

jurisdiction under 28 U.S.C. § 1291.

       Taken together, appellants claim that the District Court erred on five grounds:

first, by denying a motion for acquittal based on insufficiency of the evidence; second, by

admitting letters in which Sainsbury referred to himself as “Moses;” third, by admitting

records that Sainsbury was in prison at certain times and was thus more likely to be “Wet

Boy;” fourth, by denying a motion for mistrial after a witness said that he had met



                                             4
Sainsbury at “the probation office;” and fifth, by admitting evidence seized at the site of

the traffic stop and along Bledsoe‟s path of flight. We consider each claim in turn.

          A.     Sufficiency of the Evidence

          We must affirm the jury‟s verdict so long as “there is substantial evidence that,

when viewed in the light most favorable to the government, would allow a rational trier

of fact to convict.” United States v. Lee, 612 F.3d 170, 178 (3d Cir. 2010) (quotations

and citations omitted). Challenges for insufficiency of evidence thus “place[] a very

heavy burden on an appellant.” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)

(quotations and citations omitted). Our review of this question is plenary. Lee, 612 F.3d

at 178.

          Bledsoe, who alone challenges the sufficiency of the evidence against him, has not

carried this heavy burden. The two bank robberies were undertaken in a similar fashion

at a similar time of year. Bledsoe‟s physical profile matches that of the taller robber seen

on both bank videos holding a handgun. DNA evidence linked Bledsoe to articles of

clothing used in both robberies. He was arrested after fleeing a traffic stop of the car in

which the Emmaus bank robbers escaped in the vicinity of, and shortly after, the robbery.

Bledsoe‟s calls from prison allude to his part in that robbery. A jury easily could have

convicted Bledsoe based on this evidence.

          Bledsoe‟s claims to the contrary are unavailing. It is not necessary that bank

employees positively identify a defendant as the bank robber, nor that the Government

use fingerprint evidence. Bledsoe does not support his assertion that the Government

failed to establish a chain of custody over the DNA evidence. And, in our view, the

                                                5
Government more than adequately proved that the man who fled the Audi was the same

man whom police subsequently arrested. For these reasons, we affirm the District

Court‟s denial of Bledsoe‟s motion for a judgment of acquittal.

       B.     Letters

       As soon as police learned from the owner of the Jeep used in the first robbery

where his friend “Moses” lived, they applied for a search warrant. That warrant

authorized the police to search for and to seize United States currency and money

wrappers, among other evidence. Some twelve hours after the robbery, police executed

the warrant in Sainsbury‟s home. There, they found letters in which Sainsbury referred to

himself as “Moses.” Sainsbury moved the District Court to exclude the letters as beyond

the scope of the search warrant. It denied his motion.

       We review denials of a motion to suppress “for clear error as to the underlying

factual findings and exercise[] plenary review of the District Court‟s application of the

law to those facts.” United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). During an

otherwise lawful search, police may seize items that are in “plain view” even if the

warrant does not list those items. This rule applies if three requirements are met: “First,

the officer must not have violated the Fourth Amendment in arriving at the place from

which the evidence could be plainly viewed. Second, the incriminating character of the

evidence must be immediately apparent. Third, the officer must have a lawful right of

access to the object itself.” United States v. Stabile, 633 F.3d 219, 241 (3d Cir. 2011)

(internal quotation marks and citation omitted).



                                             6
       The plain view exception covers the letters whose admission Sainsbury

challenges. The warrant authorized the executing officers to search anywhere in

Sainsbury‟s home where they might find cash and money wrappers, which includes

places where they might find letters. And the officer testified that he seized the letters

because he noticed the word “Moses” on them. Sainsbury challenges none of this.

Rather, he recites the general rule that objects seized must be described in the warrant,

ignoring the District Court‟s ruling that the plain view exception applies. We therefore

affirm the District Court‟s denial of Sainsbury‟s motion to suppress the letters.

       C.     Prison Records

       The Government introduced records that Sainsbury was incarcerated at the Lehigh

County Prison during certain dates on unrelated charges. Bledsoe had made recorded

calls from prison revealing that “Wet Boy” accompanied him in the Emmaus robbery and

that “Wet Boy” was in the prison with him during certain times. The Government sought

to establish that Sainsbury was “Wet Boy” by showing that he was in prison at those

times. Sainsbury objected that the evidence was substantially more prejudicial than

probative, thereby violating Federal Rule of Evidence 403. The District Court denied his

objection.

       We review a district court‟s decision to admit or exclude evidence for abuse of

discretion. Marra v. Phila. Hous. Auth., 497 F.3d 286, 297 (3d Cir. 2007). In the context

of Rule 403, our review is especially deferential. “In order to justify reversal, a district

court‟s analysis and resulting conclusion must be „arbitrary or irrational.‟” United States



                                              7
v. Univ. Rehab. Serv’s, Inc., 205 F.3d 657, 665 (3d Cir. 2000) (en banc) (footnote and

citation omitted).

       The District Court did not abuse its discretion in admitting the prison records.

Evidence showing that a defendant had been convicted of other crimes is prejudicial.

However, Rule 403 anticipates that some evidence will be prejudicial. The question is

whether that prejudice “substantially outweighs” its probative value. In this case, there

was considerable probative value in identifying Sainsbury as “Wet Boy” insofar as it

linked him to the Emmaus robbery. Cf. United States v. Lawson, 410 F.3d 735, 741-42

(D.C. Cir. 2005) (Roberts, J.) (upholding admission of evidence of uncharged bank

robbery to establish defendant‟s identity). Furthermore, the District Court instructed the

jury that it was to consider the records only for the purpose of identifying Sainsbury. As

the District Court gave the jury a limiting instruction and its balancing under Rule 403

was not „arbitrary or irrational,‟ we affirm its ruling.

       D.     “The Probation Office”

       On direct examination, a police officer testifying about DNA evidence noted that

he met Sainsbury to take his blood sample “at the probation office in Allentown.”

Sainsbury immediately moved for a mistrial on the ground that the statement, which

suggested that Sainsbury may have a criminal record, was prejudicial. The District Court

denied the motion but told the jury to disregard the remark.

       “We review the denial of a motion for a mistrial based on a witness‟s allegedly

prejudicial comments for an abuse of discretion. Three factors must be analyzed to

determine whether the defendant was prejudiced: (1) whether [the witness‟s] remarks

                                               8
were pronounced and persistent . . . ; (2) the strength of the other evidence; and (3)

curative action taken by the district court.” United States v. Riley, 621 F.3d 312, 335-36

(3d Cir. 2010) (internal quotation marks omitted) (citing and quoting United States v.

Lore, 430 F.3d 190, 207 (3d Cir. 2005)).

       Each of these three factors supports the District Court‟s ruling. As in Lore, a

single statement in the course of a three-week trial “hardly can be deemed „pronounced

and persistent.‟” 430 F.3d at 207. The evidence against Sainsbury was substantial; a jury

presented with DNA evidence, phone records, and eyewitness testimony need not have

considered that Sainsbury might have been on probation. And the District Court issued a

curative instruction immediately, well within the thirty minutes after the prejudicial

remark that we have held to be sufficient. See United States v. Hakim, 344 F.3d 324,

329-30 (3d Cir. 2003). Thus, we affirm the District Court‟s denial of appellants‟ motion

for a mistrial.

       E.         Evidence from Traffic Stop

       Lastly, Bledsoe challenges the District Court‟s decision to admit the physical

evidence stemming from his arrest after the Emmaus robbery. He contends that because

Officer Schilling lacked reasonable suspicion to “stop” him, his arrest was illegal,

rendering all of the evidence flowing from it “fruit of the poisonous tree.”

       We review denials of a motion to suppress “for clear error as to the underlying

factual findings and exercise[] plenary review of the District Court‟s application of the

law to those facts.” Perez, 280 F.3d at 336.



                                               9
       Each step of Bledsoe‟s arrest was legal. It began with Schilling‟s stop of the Audi,

which he observed roll through a stop sign and whose license plate was registered to a

different make of car. A police officer who observes a violation of state traffic laws may

stop the car committing the violation. Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977).

Bledsoe does not challenge that the Audi‟s driver violated a traffic law. Once an officer

has stopped a car, he or she may order its passengers out of the car without any further

justification. Maryland v. Wilson, 519 U.S. 408, 414-15 (1997).

       Schilling‟s chase and arrest after Bledsoe got out of the car is justified by the

doctrine of Terry v. Ohio, 392 U.S. 1 (1968). Officers may “stop” a person if they have

“a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow,

528 U.S. 119, 123 (2000). Bledsoe is correct that merely running from an officer does

not give rise to “reasonable, articulable suspicion.” Id. at 124-25. However, such flight

combined with other indicia of wrongdoing may satisfy that standard. Id. We found

such indicia in a case that is identical in all relevant respects to this one. United States v.

Bonner, 363 F.3d 213 (3d Cir. 2004). There, an officer made a routine traffic stop. As he

approached the driver‟s door, a passenger got out of the car and ran, ignoring the officer‟s

demands to stop. Id. at 215. We concluded that “[f]light from a non-consensual,

legitimate traffic stop . . . gives rise to reasonable suspicion” under the Terry/Wardlow

standard. Id. at 218.

       Once Schilling‟s colleague “stopped” Bledsoe and found thousands of dollars in

Lafayette Ambassador Bank wrappers, he had the requisite cause to arrest Bledsoe. The

officer joined Schilling‟s pursuit on hearing over the police radio (i) that the Lafayette

                                              10
Ambassador Bank had just been robbed and (ii) that Schilling was chasing someone on

foot near the bank. This background, including the money that the officer found when

patting Bledsoe down, establishes probable cause. “„[P]robable cause to arrest exists

when the facts and circumstances within the arresting officer‟s knowledge are sufficient

in themselves to warrant a reasonable person to believe that an offense has been or is

being committed by the person to be arrested.‟” Reedy v. Evanson, 615 F.3d 197, 211

(3d Cir. 2010) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995)).

       Police at no point violated Bledsoe‟s Fourth Amendment rights. We thus agree

with the District Court that the physical evidence seized from him and along the path of

his attempted escape is admissible.

                                         *   *    *

       For the foregoing reasons, we hold that none of the District Court‟s challenged

rulings constitutes reversible error. Accordingly, we affirm.1




1
  In a Rule 28(j) letter, Sainsbury urges that we permit supplemental briefing on the effect
that Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), has on this case. We fail to see
the relevance of Bullcoming, which concerns the definition of testimonial evidence under
the Confrontation Clause.

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