                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-18-2007

USA v. Homick-Van Berry
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2196




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                                              NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       06-2196


           UNITED STATES OF AMERICA

                           v.

           NADINE HOMICK-VAN BERRY,
                                  Appellant
            (D.C. Crim. No. 04-cr-00269-1)


                     No. 06-2212


           UNITED STATES OF AMERICA

                           v.

              CLINTON VAN BERRY,
                                  Appellant
            (D.C. Crim. No. 04-cr-00269-2)


APPEAL FROM THE UNITED STATES DISTRICT COURT
         FOR THE DISTRICT OF NEW JERSEY
    District Judge: The Honorable Jerome B. Simandle


       Submitted Under Third Circuit LAR 34.1(a)
                    June 26, 2007


 Before: BARRY, FUENTES, and JORDAN, Circuit Judges

             (Opinion Filed: July 18, 2007)
                                         OPINION



BARRY, Circuit Judge

       This case comes before us as consolidated appeals by husband-and-wife co-

defendants who were found guilty by a jury of conspiracy to rob a courier as he delivered

more than $33,000 in cash from the municipality of Atlantic City to Commerce Bank.

For the reasons that follow, we will affirm.

                                               I.

       As we write only for the parties, our discussion of the facts is brief. At the time of

the offense conduct, Appellant Clinton Van Berry (“Clinton”) was the Assistant Municipal

Tax Collector for Atlantic City, and was married to Appellant Nadine Homick-Van Berry

(“Nadine”). Federal authorities had been monitoring the couple for several years as they

schemed to bribe Mayor Robert Jackson of West Cape May in exchange for the

“engineer’s estimate” for the borough’s sewer construction contracts. In August 2003,

working with Mayor Jackson, federal authorities secretly recorded the Van Berrys

allegedly paying the mayor $500 in exchange for a package that purportedly contained

“bid specs,” but that, in fact, contained no useful information.

       As the bribery scheme was unfolding, Nadine began to develop another scheme to

rob a courier as he delivered the proceeds of an Atlantic City tax lien sale to Commerce

Bank. She approached her longtime friend, Charles Varvaro, and sought his help.

                                               2
Unbeknownst to her, Varvaro, a contractor, was also an FBI informant who had been

supplying authorities with information about the Van Berrys’ efforts to bribe Mayor

Jackson. Using information supplied by Clinton, Nadine and Varvaro planned the

robbery. Authorities eventually arrested Clinton and Nadine after an elaborate sting

operation.

       The Van Berrys were charged with conspiracy to commit robbery and attempted

robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a) and § 2 (Counts 1 and 2); and

conspiracy to bribe and bribery of the mayor of West Cape May, contrary to 18 U.S.C. §

666(a)(2) and in violation of 18 U.S.C. § 371 (Counts 3 and 4). The District Court tried

the Van Berrys together, but separately tried the robbery and bribery counts. The bribery

trial ended in mistrials; the robbery trial resulted in guilty verdicts. After the District

Court sentenced the Van Berrys, each, to 46 months’ imprisonment, these appeals

followed.1

                                               II.

                                               A.

       Clinton challenges, first, the District Court’s decision to admit evidence of the

bribery scheme, pursuant to Rule 404(b) of the Federal Rules of Evidence, in his trial for

robbery. Rule 404(b) evidence, to be admitted, must have a proper purpose; must be

relevant; must have a probative value that is not substantially outweighed by its potential


   1
      Jurisdiction in the District Court was proper under 18 U.S.C. § 3231. We have
jurisdiction, pursuant to 28 U.S.C. § 1291, to review the District Court’s final judgments.
                                                3
for unfair prejudice; and must be accompanied by an appropriate limiting instruction.

Huddleston v. United States, 485 U.S. 681, 691-92 (1988); United States v. Vega, 285 F.3d

256, 261 (3d Cir. 2002). We review the Court’s decision to admit such evidence for abuse

of discretion. United States v. Boone, 279 F.3d 163, 187 n.17 (3d Cir. 2002).

       The District Court did not abuse its discretion in admitting Rule 404(b) evidence of

the bribery scheme. Defense counsel disregarded a clear warning from the Court and

opened the door to the admission of this evidence by questioning Varvaro about all

payments that he had received from the FBI since January 2002 in exchange for his

cooperation. Counsel was well aware that most of these payments, which totaled $10,158,

were for Varvaro’s cooperation in connection with the bribery investigation. Admission

of the Rule 404(b) evidence was necessary, therefore, to counteract the misimpression that

this money was payment solely for Varvaro’s cooperation in connection with the robbery

investigation. It was also necessary, in the face of defense counsel’s persistent questioning

into Varvaro’s dealings with Nadine going back to 2000, to remedy the perception that

Varvaro’s good-faith effort to comply with the Court’s initial directive not to testify to the

bribery scheme was, in fact, an attempt to hide pertinent information from the jury.

       The Rule 404(b) evidence was admissible for the independent reason that it tended

to show the Van Berrys’ knowledge, intent, and motive with reference to the robbery

scheme. Beyond being probative of the Van Berrys’ past relationship with Varvaro and

Nadine’s reason for involving him in the robbery scheme, the evidence also showed the

Van Berrys’ motive for devising the robbery scheme in the first place: to recoup losses that

                                              4
they had sustained in their unsuccessful scheme to bribe Mayor Jackson for information

about West Cape May’s sewer contracts. To minimize the danger of unfair prejudice, the

Court instructed jurors, on four separate occasions, that they could consider this evidence

only to show Varvaro’s relationship with the Van Berrys and the Van Berrys’ knowledge,

intent, and motive behind the robbery scheme. The significant probative value of the

evidence was not substantially outweighed by any danger of unfair prejudice. See Fed. R.

Evid. 403.

       Clinton argues, next, that the District Court’s limiting instructions relating to the

Rule 404(b) evidence were effectively negated by contradictory or confusing instructions

elsewhere in the charge. The instructions in question were the standard instructions, given

in nearly every jury trial, that jurors may draw on “common sense,” “experience,” and

reasonable “inferences” when evaluating the evidence. Clinton contends that these

instructions were an invitation to consider propensity evidence. Because he did not raise

this argument before the District Court, we review only for plain error. United States v.

Brennan, 326 F.3d 176, 182 (3d Cir. 2003).

       We find no error, much less plain error. The District Court’s limiting instructions

certainly were not “a mystifying cloud of words” (Br. 35), but rather, were a clear, precise,

and unambiguous directive not to consider the Rule 404(b) evidence as evidence of

propensity.2 See United States v. Cruz, 326 F.3d 392, 396-97 & nn.2, 3 (3d Cir. 2003)


   2
     We, therefore, reject Clinton’s related argument that the Court committed plain error
by failing specifically to prohibit the jury from using Rule 404(b) evidence to infer that he
                                               5
(approving similar limiting instructions); United States v. Mathis, 264 F.3d 321, 326 (3d

Cir. 2001) (same). We presume that the jury heeded the Court’s instructions, Whitney v.

Horn, 280 F.3d 240, 257 (3d Cir. 2002), and find no reason to suppose that jurors

understood the Court’s general instructions on the use of “common sense” to override its

specific limitations on the use of Rule 404(b) evidence. See also 2AA140 (“[I]f testimony

or exhibits have been received only for a limited purpose, you must follow the limiting

instruction that I have given you.”).) Clinton’s argument is meritless.

       Clinton contends, finally, that the District Court erred by instructing jurors that

“[n]o presumption of guilt may be raised and no inference of any kind may be drawn from

the failure of a defendant to testify.” (2AA142.) He contends that the word “failure” was

pejorative and seriously affected the fairness of the proceedings. No contemporaneous

objection was raised, so we review for plain error. Brennan, 326 F.3d at 182.

       Once again, we find no error, and certainly no plain error, in the District Court’s

instruction. Use of the word “failure” in this context is commonplace. See, e.g., McKune

v. Lile, 536 U.S. 24, 42 (2002) (“[T]he Fifth Amendment prohibits courts from instructing

a criminal jury that it may draw an inference of guilt from a defendant’s failure to

testify.”); James v. Kentucky, 466 U.S. 341, 344 (1984) (“[I]n order fully to effectuate the

right to remain silent, a trial judge must instruct the jury not to draw an adverse inference




was “more likely” to have participated in the robbery conspiracy. The Court repeatedly
instructed jurors not to consider the Rule 404(b) evidence “for any other purpose” than
those for which it was admitted. (2AA147.)
                                              6
from the defendant’s failure to testify if requested to do so.”); Harris v. Rivera, 454 U.S.

339, 346 (1981) (“It is equally routine for [judges] to instruct juries that no adverse

inference may be drawn from a defendant’s failure to testify . . . .”). The Tenth Circuit has

rejected the very argument Clinton makes here, see United States v. Adams, 914 F.2d

1404, 1408-09 (10th Cir. 1990) (commenting that the argument “almost amounts to the

picayune”), as do we.

                                             B.

       We turn to Nadine’s arguments. She argues, first, that statements that Clinton made

to the FBI tended to incriminate her, and that the District Court’s decision to permit an FBI

agent to testify about them at trial violated her rights under the Confrontation Clause when

Clinton exercised his Fifth Amendment right not to testify.3 Our review of this argument,

which the District Court considered and rejected, is plenary. United States v. Lore, 430

F.3d 190, 208-09 (3d Cir. 2005).

       The Sixth Amendment guarantees the right of an accused “to be confronted with the

witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36,

68-69 (2004), the Supreme Court held that an accused’s confrontation right must be



   3
     Clinton made the statements in an hour-long interview at an FBI office shortly after
Nadine was arrested, but before he was placed under arrest. He informed agents, among
other things, that he had telephoned his wife twice on the day of the robbery, first, to ask
her to go to lunch that day, and later, to inquire about a problem she was having with a
tooth. He also denied having any knowledge of his wife’s involvement in any scheme to
rob the tax office, and denied having any conversations with his wife concerning a
robbery.
                                              7
honored when a witness’s out-of-court statements to law enforcement are admitted against

the accused. Crawford and its progeny are inapplicable here, however, because the

District Court admitted Clinton’s statements against him alone, and specifically instructed

jurors that they “may not consider Clinton Van Berry’s statements to the FBI on December

17th in any way against Nadine Van Berry.” (1AA225.) See In re Brown, 457 F.3d 392,

395 (5th Cir. 2006) (finding that Crawford was not violated where co-defendant’s out-of-

court confession was admitted solely against co-defendant); cf. Crawford, 541 U.S. at 40,

68 (finding Confrontation Clause violation in admission of wife’s testimonial statement as

evidence against husband in criminal trial). We find, therefore, no Sixth Amendment

violation under Crawford.

       We also find, as did the District Court, that Clinton’s statements did not

“powerfully incriminate” Nadine. Cf. Bruton v. United States, 391 U.S. 123, 124 n.1, 135-

36 (1968) (holding that limiting instruction was insufficient to avoid Confrontation Clause

violation where co-defendant’s “powerfully incriminating” extrajudicial statement was

admitted in joint trial with petitioner). In Richardson v. Marsh, 481 U.S. 200, 208 (1987),

the Supreme Court explained that when a co-defendant’s confession does not, on its face,

incriminate the petitioner, and does so only when linked with other evidence, it may be

introduced in a joint trial with a limiting instruction. Here, Clinton’s statements were not

inculpatory. They did not expressly implicate Nadine in the robbery, and they certainly

were not powerfully incriminating on their face. See United States v. Belle, 593 F.2d 487,

493 (3d Cir. 1979) (en banc) (“When a codefendant’s extrajudicial statement does not

                                              8
directly implicate the defendant, however, the Bruton rule does not come into play.”); see

also United States v. Lopez-Lopez, 282 F.3d 1, 13 (1st Cir. 2002); United States v. Olano,

62 F.3d 1180, 1195-96 (9th Cir. 1995); United States v. Rubio, 709 F.2d 146, 154-55 (2d

Cir. 1983). Whatever incriminating value they may have had with respect to Nadine was

derived by inference from other evidence introduced at trial.4 Under the circumstances,

we conclude that the Court’s limiting instruction was sufficient to avoid a Confrontation

Clause violation.

       Nadine argues, next, that the District Court erred by denying her motion to sever

her trial from that of Clinton. The decision to sever the trials of criminal codefendants

rests in the sound discretion of the district court. United States v. Lore, 430 F.3d 190, 205

(3d Cir. 2005). We, therefore, review the District Court’s denial of Nadine’s motion for

severance for abuse of discretion. Id.

       Rule 14(a) of the Federal Rules of Criminal Procedure permits a district court to

sever codefendants’ trials where a joint trial “appears to prejudice a defendant.” In Zafiro



   4
     Other evidence admitted at trial, moreover, substantially duplicated any
incriminating inference that jurors might have drawn from Clinton’s statements. For
instance, the government introduced phone records showing that Clinton had placed a 22-
second phone call to Nadine just as the courier was leaving the tax office on the day of
the robbery, as well as recordings of Nadine describing to Varvaro the manner by which
Clinton would alert her of the impending delivery of tax sale proceeds. See Rubio, 709
F.2d at 155 (noting that co-defendant’s contested statement presented “nothing new or
incriminating . . . which had not already been presented” through other evidence). Thus,
even if the District Court had erred under Bruton, the error was harmless. See Delaware
v. Van Arsdall, 475 U.S. 673, 684 (1986) (holding that Confrontation Clause errors were
subject to harmless error analysis).
                                              9
v. United States, 506 U.S. 534, 539 (1993), the Supreme Court held that “a district court

should grant a severance under Rule 14 only if there is a serious risk that a joint trial

would compromise a specific trial right of one of the defendants, or prevent the jury from

making a reliable judgment about guilt or innocence.” The sole trial right that Nadine

identifies, however, is her right of confrontation—a right that was not violated. We

conclude that the District Court did not abuse its discretion in denying Nadine’s motion to

sever her trial from that of Clinton.

         Nadine, finally, adopts each of the arguments that Clinton raised in his appeal. For

reasons already discussed, we reject those arguments.

                                              III.

         For the foregoing reasons, we will AFFIRM the final judgments of the District

Court.




                                              10
