                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0987n.06

                                     Nos. 12-3726 and 12-3746

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT                                    FILED
                                                                                    Nov 18, 2013
                                                                                DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                      )
                                               )      ON APPEAL FROM THE
               Plaintiff-Appellee,             )      UNITED STATES DISTRICT COURT
                                               )      FOR THE NORTHERN DISTRICT
v.                                             )      OF OHIO
                                               )
KENNETH A.WHITE,                               )
                                               )      OPINION
               Defendant-Appellant.            )


       BEFORE: BOGGS and DONALD, Circuit Judges, and STAMP, District Judge.*

       FREDERICK P. STAMP, JR., Senior District Judge. The government filed two separate

indictments against the defendant, Kenneth White. The district court consolidated these two

indictments into one jury trial. At trial, the jury convicted White on all charges of the two

indictments. White appeals his conviction, arguing that the district court (1) erred when it failed to

sever the charge of failure to appear from the other charges of his indictment; (2) erred by

admitting evidence of his flight; (3) erred by admitting other act evidence under Rule 404(b); and

(4) erroneously instructed the jury on issues of Rule 404(b) evidence and flight.

       For the reasons set forth below, we affirm the rulings of the district court.

                                          I. Background




       *
         The Honorable Frederick P. Stamp, Jr., Senior United States District Judge for the Northern
District of West Virginia, sitting by designation.
Nos. 12-3726 and 12-3746
United States v. Kenneth White

       A grand jury indicted White on charges of making false statements in loan applications.

Thereafter, the government filed a superseding indictment. The superseding indictment charged

White with three counts of making false statements in loan applications in violation of 18 U.S.C.

§ 1014, and one count of failing to appear in violation of 18 U.S.C. § 3146(a)(1). The failure to

appear charge resulted from White’s absence from a bond revocation hearing prior to trial. A

warrant was issued for his arrest after the hearing, and when a police officer attempted to arrest

White based on this warrant, White allegedly fled from the officer.

       Thereafter White was indicted on further charges. In this second indictment, White was

charged with one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371,

three counts of wire fraud and aiding and abetting in violation of 18 U.S.C. §§ 1343 and 1342, and

one count of bank fraud and aiding and abetting in violation of 18 U.S.C. §§ 1344 and 1342. White

pleaded not guilty to all charges.

       The two separate cases were then joined for trial upon White’s motion for joinder. White’s

motion also requested, however, that the count charging him with failing to appear be severed from

all other charges. In support of this request, White argued that the failure to appear charge was not

of the same character as the underlying fraud charges and that trying it with other charges would

give rise to prejudicial inferences that he did not attend the bail revocation hearing due to

consciousness of guilt. The district court denied White’s request to sever the charge, finding that

it was sufficiently connected to the other alleged offenses to permit a single trial because evidence

of White’s failure to appear for the bond revocation hearing would be admissible independently as

consciousness of guilt.

                                                 2
Nos. 12-3726 and 12-3746
United States v. Kenneth White

       The relevant determinations, facts, and testimony are more fully set out in the analysis of the

errors that White alleges.

       Subject matter jurisdiction in this action was conferred upon the district court by 18 U.S.C.

§ 3231. This Court has jurisdiction to hear this appeal as of right pursuant to 28 U.S.C. § 1291,

which authorizes an appeal from a final order by a district court.

                                             II. Analysis

A.      Severance

       White first challenges the district court’s denial of his motion for joinder and severance

insofar as it sought the severance of the failure to appear charge from all other charges contained

in his two indictments. We review a district court’s decisions regarding motions for severance for

abuse of discretion. United States v. Smith, 197 F.3d 225, 230 (6th Cir. 1999).

       Federal Rules of Criminal Procedure 8(a) and 14 govern joinder and severance of offenses.

Under Rule 8(a), charges may be joined where 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). Rule 14, however, provides that even if the requirements of Rule

8(a) are met, a court may order separate trials if the “joinder of offenses . . . appears to prejudice a

defendant or the government.” Fed. R. Crim. P. 14(a).

       Initially, we note that “[i]t is well established that a charge of escape or bail jumping and the

underlying substantive offense are sufficiently connected to permit joinder under Fed.R.Crim.P.

(“Rule”) 8(a).” United States v. Turner, 134 F. App’x 17, 22 (6th Cir. 2005) (citations omitted).

Therefore, the only issue is whether White established that the joinder of the failure to appear charge

                                                   3
Nos. 12-3726 and 12-3746
United States v. Kenneth White

with all other charges would prejudice him. “To establish an abuse of discretion requires a strong

showing of prejudice.” United States v. Hang Le-Thy Tran, 433 F.3d 472, 478 (6th Cir. 2006)

(internal quotations and citation omitted). Ultimately, White must show that the denial of his motion

for severance affected his substantial rights. United States v. Cope, 312 F.3d 757, 781 (6th Cir.

2002).

          White argues that the district court abused its discretion by denying his motion to sever. He

claims that the limiting instruction that was given to the jury concerning the evidence relating to his

failure to appear charge was not sufficient to alleviate the prejudice resulting from its joinder with

the other charges. According to White, no guidance was given regarding the charges to which the

limiting instruction was to apply. At trial, however, White did not object to the instruction.

Additionally, White has not shown how the district court’s denial of his motion for severance

affected his substantial rights. “[A] jury is presumed capable of considering each count separately.”

Cope, 312 F.3d at 781 (citations omitted). Consequently, White’s conclusory statement that the

joinder of all charges prejudiced him because the jury instruction was not sufficiently limited does

not establish that any of his substantial rights were affected by the inclusion of the failure to appear

charge.

B.        Admission of Evidence of Flight

          White next challenges the district court’s admission of evidence concerning his flight. We

“review a district court’s determination regarding the admissibility of evidence of flight for abuse

of discretion.” United States v. Atchley, 474 F.3d 840, 853 (6th Cir. 2007) (citing United States v.

Dillon, 870 F.2d 1125 (6th Cir. 1989)).

                                                   4
Nos. 12-3726 and 12-3746
United States v. Kenneth White

       Generally, “[f]light evidence comes in as an admission of guilt by conduct.” United States

v. Oliver, 397 F.3d 369, 376 (6th Cir. 2005) (quoting Dillon, 870 F.2d at 1126). Many courts,

however, have doubted the probative value of particular flight evidence in criminal trials. Id.

(citation omitted). This circuit has decided to use a four-step analysis to determine whether evidence

of flight is significantly probative and thus admissible. Atchley, 474 F.3d at 853.

       Under this analysis, the probative value of flight evidence depends upon the degree
       of confidence with which four inferences can be drawn: (1) from the defendant's
       behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness
       of guilt to consciousness of guilt concerning the crime charged; and (4) from
       consciousness of guilt concerning the crime charged to actual guilt of crime charged.

Id. (internal quotations and citations omitted).

       “As to the first inference, there must be evidence that there was flight by the defendant.”

Oliver, 397 F.3d at 376 (citation omitted). There is sufficient evidence of flight by White in this

case. First, White’s probation officer testified as to White’s failure to appear for a hearing on his

bond revocation. The probation officer also testified regarding the issues with White’s in-home

monitoring device on the day of that hearing, which indicated tampering with or removal of that

device. Further, the arresting police officer testified that during a traffic stop eight months after

White’s failure to appear, White attempted to flee on foot from the police officer to avoid arrest.

       As to the second and third inferences, White fled after being initially indicted. Thus, he fled

after becoming aware that the government charged him with a crime and being informed of the

crimes charged. While he did not flee immediately after being indicted, “the mental crisis that

precipitates flight may fail to occur immediately after the crime, only to erupt much later, when the

defendant learns that he or she is charged with the crime and sought for it.” Dillon, 870 F.2d at

                                                   5
Nos. 12-3726 and 12-3746
United States v. Kenneth White

1128. Thus, we find that White’s initial failure to appear at his bond revocation hearing and his

additional flight from the police officer during the traffic stop several months later support these

inferences.

       As to the fourth inference, there is sufficient evidence to connect White’s consciousness of

guilt to his actual guilt on the charges. Such evidence includes the testimony of Douglas Punchak

concerning loan applications compiled by White and the false statements that were contained within

these applications. This evidence supports the inference that White’s consciousness of guilt about

the charges derived from his having committed the violations.

       White argues that the court’s admission of the flight evidence was in error due to the eight

months that elapsed between his flight and the date of the alleged failure to appear. White contends

that this length of time undermines any reasonable inference of his consciousness of guilt. This

argument is without merit. As this circuit has stated, “[w]here it is clear the defendant is aware of

the charges against him, the immediacy factor is not required to show consciousness of guilt.”

Oliver, 397 F.3d at 377. White fled after he was initially indicted and after he had made appearances

regarding this initial indictment. Therefore, White cannot say that he was not aware of charges

being brought against him. Thus, the district court did not abuse its discretion in permitting

evidence of White’s flight to be introduced at trial.

C.     Other Acts Evidence

       White further challenges the district court’s admission of certain evidence whose

admissibility is governed by Federal Rule of Evidence 404(b). This Court reviews a district court’s

rulings on FRE 404(b) evidence, like a district court’s other evidentiary rulings, for abuse of

                                                  6
Nos. 12-3726 and 12-3746
United States v. Kenneth White

discretion. United States v. Allen, 619 F.3d 518, 523 (6th Cir. 2010) (citing United States v.

Haywood, 280 F.3d 715, 720 (6th Cir. 2002).1 “Generally, an abuse of discretion is evident when

a reviewing court is firmly convinced that a mistake has been made. A district court abuses its

discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law

or uses an erroneous legal standard.” Id. (quoting Ross v. Duggan, 402 F.3d 575, 581 (6th Cir.

2004)).

          Under FRE 404(b), the government may “introduce evidence of other crimes, wrongs, or acts

committed by the defendant so long as the evidence is not used merely to show propensity and if it

bears upon a relevant issue in the case.” United States v. Clay, 667 F.3d 689, 693 (6th Cir. 2012)

(internal quotation marks and citation omitted). FRE 404(b) lists the following non-exhaustive list

of proper purposes: “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).




          1
          Although a more recent decision by this Court, United States v. Clay, 667 F.3d 689, 693 (6th
Cir. 2012), applied a three-tiered standard of review to a district court’s rulings on FRE 404(b)
evidence, Allen explained that Haywood, 280 F.3d at 720, “repudiated the three-tiered standard of
review for Rule 404(b) determinations” because “abuse of discretion is the proper standard of review
for a district court’s evidentiary rulings.” 619 F.3d at 524 n.2 (internal quotation marks and citations
omitted). In fact, in Clay, the dissent cited Allen, Haywood, and other cases for the proposition that,
despite a “longstanding intra-circuit conflict regarding the appropriate standard of review for
evidentiary decisions under Rule 404(b), the correct standard . . . is the deferential one that we apply
to every other evidentiary ruling.” Clay, 667 F.3d at 703 (Kethledge, J., dissenting); see also United
States v. Love, 254 F. App’x 511, 514 (6th Cir. 2007) (“[T]o the extent that cases after Haywood . . .
apply the three-tiered standard of review, they are errant because when a later decision of this court
conflicts with one of our prior published decisions, we are still bound by the holding of the earlier
case.” (internal quotation marks and citation omitted)). As Allen was decided and published nearly
two years prior to Clay–and Haywood, a decade before Clay–we are bound by the abuse of
discretion standard that it articulated.

                                                   7
Nos. 12-3726 and 12-3746
United States v. Kenneth White

          White specifically challenges the district court’s admission of evidence that he previously

used the fictitious name “El Mundo 2000” to secure financing for certain vehicles that led to a

conviction on charges of bank fraud in 2001.2 White had indicated on the financing applications that

he was the Chief Executive Officer of El Mundo and had produced false pay stubs to establish this

as well. This same name was again used on a loan application involved in White’s 2012

convictions. Therefore, the government sought to introduce evidence from the 2001 conviction

during White’s 2012 trial in order to show White’s intent, knowledge, absence of mistake, and

modus operandi.

          Prior to admitting Rule 404(b) evidence, the district court must: (1) make a
          preliminary finding as to whether sufficient evidence exists that the prior act
          occurred; (2) determine whether the other act is admissible for one of the proper
          purposes outlined in Rule 404(b); and (3) apply Rule 403 balancing to determine
          whether the evidence’s probative value is substantially outweighed by the danger of
          unfair prejudice or the other concerns embodied by Rule 403.

Allen, 619 F.3d at 523 (6th Cir. 2010) (citing United States v. Mack, 258 F.3d 548, 553 (6th Cir.

2001)).

          Based on a review of White’s brief, he does not seem to dispute the district court’s

determination that sufficient evidence established that White used the name “El Mundo 2000” on

a previous loan application involved in his 2001 conviction. The investigating agent involved in the

2001 conviction testified that White identified himself as the president or corporate officer for




          2
         We note that White also alleges that the district court erred in introducing evidence of his
flight as improper Rule 404(b) evidence. White, however, fails to provide any argument as to why
such evidence is inadmissable Rule 404(b) evidence, and we are unable to determine how such
evidence could be construed as such.

                                                   8
Nos. 12-3726 and 12-3746
United States v. Kenneth White

“elmundo2000.com” in order to secure financing for the vehicles that were involved in his

conviction for bank fraud in 2001. Accordingly, we find no abuse of discretion in the district

court’s conclusion that “sufficient evidence exists that the prior act occurred.” Id.

       The district court next had to determine whether the evidence was admissible for a proper

FRE 404(b) purpose. To prove a violation of 18 U.S.C. § 1014 for making false statements in loan

applications, the prosecution must establish that a defendant “knowingly” made the false statements.

See 18 U.S.C. § 1014. White argued that he had nothing to do with the preparation and distribution

of the financial documents involved in this case. Thus, he put his knowledge of any false statements

at issue. Under FRE 404(b), evidence of prior bad acts may be admitted to establish knowledge and

the district court did not abuse its discretion in admitting the evidence for that purpose. The

evidence that White used “El Mundo 2000” as his employer on prior financing applications and that

such a name was again used on financing applications involved in the 2012 case is probative of

White’s knowledge of the false statements concerning “El Mundo 2000.” Additionally, the district

court provided an instruction prior to the admission of this evidence that explained to the jury that

one of the limited purposes for which the jury could use it was to establish knowledge.

       Lastly, the district court had to apply the FRE 403 balancing test. Under FRE 403, a court

may exclude relevant evidence if its probative value is substantially outweighed by its prejudicial

effect. As stated above, the evidence of White’s use of “El Mundo 2000” on prior financing

applications was probative of his knowledge of the false statements concerning “El Mundo 2000”

in the financing applications in this case. The district court also minimized the prejudicial effect of

the evidence by providing a jury instruction explaining the evidence’s limited use prior to its

                                                  9
Nos. 12-3726 and 12-3746
United States v. Kenneth White

admission. Further, the testimony regarding this evidence was very brief and limited to the specific

financing applications that eventually were used to bring charges of bank fraud against White in

2000. Based on the limiting instruction and the brevity of the testimony offered, we find that the

district court did not abuse its discretion in admitting the evidence under FRE 404(b).

D.     Jury Instructions

       Finally, White argues that the district court’s jury instructions concerning flight and FRE

404(b) evidence were erroneous and prejudicial.         Generally, we review challenges to jury

instructions for abuse of discretion. United States v. Kuehne, 547 F.3d 667, 679 (6th Cir. 2008).

When the defendant, however, fails to object to the jury instructions during trial, we review the jury

instruction for plain error. United States v. Aaron, 590 F.3d 405, 408 (6th Cir. 2009).

       1.      FRE 404(b) Evidence Instructions

       White admits that he did not object to the jury instructions pertaining to Rule 404(b)

evidence. Therefore, we review the Rule 404(b) evidence instruction for plain error. To establish

plain error, White must show that: “(1) an error occurred in the district court; (2) the error was

obvious or clear; (3) the error affected defendant's substantial rights; and (4) this adverse impact

seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United

States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006) (quoting United States v. Emuegbunam, 268

F.3d 377, 406 (6th Cir. 2001)). If the error is harmless, however, we will not reverse the conviction.

United States v. Vasquez, 560 F.3d 461, 470 (6th Cir. 2009). An error is harmless if “it appears

beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”




                                                 10
Nos. 12-3726 and 12-3746
United States v. Kenneth White

United States v. Baldwin, 418 F.3d at 575, 582 (6th Cir. 2005) (citation and quotation marks

omitted).

        White argues that the initial instruction pertaining to the FRE 404(b) evidence denied him

due process and a fair trial as it failed to adequately guide the jury in its use of the evidence. He

specifically argues that the initial instruction provided prior to the testimony that introduced the FRE

404(b) evidence was vague, confusing, failed to carefully identify a specific purpose for which the

evidence was being admitted, and failed to properly caution the jury against using the evidence to

draw conclusions forbidden by Rule 404(b). First, we find that the instruction was not vague or

confusing, and it did not fail to properly caution the jury against using the evidence for improper

purposes. The district court specifically stated that the evidence was “coming in for what we call

a limited purpose, not . . . direct evidence to show that the person committed the crime here.” Thus,

the district court properly warned the jury that this evidence was not propensity evidence, which is

prohibited by FRE 404(b).

        In its limiting instruction, the district court did state that the evidence was coming in “on the

issue of motive or opportunity or intent, plan, knowledge, those kinds of things.” Id. We find that

the district court erred in giving this instruction because some of those applications, specifically

motive and opportunity, were not at issue in this case. See United States v. Fraser, 448 F.3d 833,

842 (6th Cir. 2006) (finding that motive, opportunity, and identity were not at issue in the case and

that it was error for the district court to include these purposes in the limiting instruction). However,

this error does not require that we reverse White’s conviction.




                                                   11
Nos. 12-3726 and 12-3746
United States v. Kenneth White

        As in Fraser, White has failed to show how the inclusion of motive and opportunity in the

initial jury instruction affected his substantial rights. Usually, in order for a defendant to satisfy the

substantial rights prong of plain error review, “the defendant must make a specific showing of

prejudice.” Id. White has not shown how the error prejudiced him. White argues that the jury was

given “free rein” to use the evidence as it saw fit. This is incorrect, however, because the district

court specifically provided the jury with a later instruction that limited the use of such evidence “to

the defendant’s intent and/or knowledge.” Further, White has not even suggested that the jury’s

consideration of the Rule 404(b) evidence permitted any unfair inferences concerning his motive

or opportunity, which were purposes included in the initial limiting instruction. Therefore, while

the district court’s inclusion of motive and opportunity in the initial Rule 404(b) jury instruction was

in error, we find that the error does not require the reversal of White’s conviction.

        2.      Flight Instruction

        White asserts that he did object to the flight instruction and that we should therefore apply

the abuse of discretion standard in reviewing these instructions. The government, however, contests

this claim, stating that while White did file a motion in limine to preclude the instruction, he did not

provide any citation to the record to demonstrate that he objected at trial to the instruction.

Therefore, the government states that White did not properly preserve his objection for appeal. This

circuit has stated that when a party does not renew an objection to an undecided motion in limine

during trial, the issue is reviewed for plain error. Atchley, 474 F.3d at 853-54. We find, however,

that it is not proper to reverse White’s conviction regardless of whether the instruction is reviewed

under either standard.

                                                   12
Nos. 12-3726 and 12-3746
United States v. Kenneth White

       “When jury instructions are claimed to be erroneous, we review the instructions as a whole,

in order to determine whether they adequately informed the jury of the relevant considerations and

provided a basis in law for aiding the jury in reaching its decision.” United States v. Frederick, 406

F.3d 754, 761 (6th Cir. 2005). We will only reverse a judgment based on an improper jury

instruction “if the instructions, viewed as a whole, were confusing, misleading, or prejudicial.”

United States v. Harrod, 168 F.3d 887, 892 (6th Cir. 1999) (citation and quotation marks omitted).

       The flight instruction given to the jury in this case read:

       You have heard testimony that after the crime was supposed to have been committed
       in this case, the defendant fled.

       If you believe the defendant fled, then you may consider this conduct, along with all
       the other evidence, in deciding whether the government has proved beyond a
       reasonable doubt that he committed the crime charged. This conduct may include
       that he thought he was guilty and was trying to avoid punishment. On the other
       hand, sometimes a [sic] innocent person may flee for some other reason.

       As indicated above, the evidence of flight was properly admitted in this case and, therefore,

providing the instruction on such evidence was proper. See Dillon, 870 F.2d at 1129 (holding that

because the district court did not abuse its discretion in admitting evidence of flight, such a

conclusion “forecloses any argument” that the district court erred in deciding to give a flight

instruction). White does not object to the district court’s providing an instruction concerning the

flight evidence. Rather, he objects to the content of the instruction, arguing that the instruction did

not indicate the charge or charges for which the jury could consider the flight evidence. We find,

however, that it was not necessary for the district court to state explicitly the charges for which the

jury could consider such evidence. The charges were interrelated and resulted from the same or



                                                  13
Nos. 12-3726 and 12-3746
United States v. Kenneth White

similar transactions. Therefore, the jury was justified in applying the evidence of flight to all

charges. Because the flight instruction was proper, the instructions as a whole could not be

considered confusing, misleading, or prejudicial. Therefore, we decline to reverse White’s

conviction based on this argument.

                                        III. Conclusion

       For the foregoing reasons, we AFFIRM White’s conviction.




                                               14
