          United States Court of Appeals
                     For the First Circuit


No. 16-2475

                         UNITED STATES,

                            Appellee,

                               v.

                         NEIL WEST, SR.,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. Nancy Torresen, Chief U.S. District Judge]


                             Before

                    Lynch, Stahl, and Barron,
                         Circuit Judges.


     Jonathan M. Goodman, with whom Troubh Heisler, PA, was on
brief for appellant.
     Renée M. Bunker, Assistant United States Attorney, Appellate
Chief, District of Maine, with whom Richard W. Murphy, Acting
United States Attorney, was on brief for appellee.


                        December 15, 2017
           BARRON, Circuit Judge.        Neil West was convicted of four

federal offenses in connection with his role in the commission of

two bank robberies that occurred in Maine.         He received a prison

sentence of 175 months.    He now contends that all four convictions

must be vacated due to errors that the District Court made at

trial, although he only makes substantive arguments regarding two

of those convictions.     We affirm.

                                    I.

           On November 30, 2016, in the United States District Court

for the District of Maine, West was convicted of two counts of

aiding and abetting bank robbery, in violation of 18 U.S.C. §

2113(a), (d), and two counts of conspiracy to commit bank robbery,

in violation of 18 U.S.C. §§ 371 and 2113(a). The four convictions

stemmed   from   two   separate   robberies,    with   West   having   been

convicted of both aiding and abetting bank robbery and conspiring

to commit bank robbery in connection with each of these robberies.

           The first of the robberies was of a credit union in

Portland, Maine on September 4, 2015.        West allegedly acted as the

driver to and from that robbery.          The other robbery was of a TD

Bank in Lewiston, Maine on September 12, 2015, where West allegedly

helped plan the robbery and, again, acted as the driver to and

from the robbery.

           In his briefing on appeal, West only challenges rulings

by the District Court that pertain to his convictions for the


                                  - 2 -
offenses relating to the TD Bank robbery.                 Accordingly, we focus

on his challenges to those two convictions, as he makes no argument

as to why the two convictions relating to the robbery of the credit

union may not stand.

                                          II.

              We   begin    with    West's       contention    that    these    two

convictions must be vacated due to the District Court's admission

-- over West's objection -- of an approximately 8-minute portion

of a 30-minute video that law enforcement took from the perspective

of the police officer who pulled in behind West as he was driving

a   minivan    roughly     30   minutes    after    the   TD   Bank   robbery   had

occurred.     In its unredacted form, that video runs from the point

at which the police officer pulled in behind the van all the way

up through the point at which the van came to a stop, West exited

the van, and West attempted to run away from the scene.

              Prior to trial, West had moved to exclude the entirety

of the video from being entered into evidence.                        West did so

pursuant to Federal Rule of Evidence 403, which provides that

"court[s] may exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice."

              The District Court orally granted in part and denied in

part West's motion.         The District Court ordered that significant

portions of the video be "redact[ed]" in order to ensure that the

video   would      not   provoke    an    unfairly    prejudicial      "emotional


                                         - 3 -
response" from jurors based on what the video showed -- namely

West     driving     at      "dizzying            speeds"     through        residential

neighborhoods,       "zipping          in     and    out"     among      cyclists     and

pedestrians.       But, the District Court determined, other portions

of the video could be shown to the jury -- namely the portion that

runs from the point in the video that shows the police officer

pulling in behind the van to the point in the video that shows the

van speeding off as well as the portion of the video that runs

from the point in the video that shows the van pulling off the

paved road to the point in the video that shows the police

arresting the defendant in front of the police cruiser.

             A week after the District Court's order, West moved for

reconsideration of the District Court's ruling. The District Court

denied the motion for reconsideration a week before trial.                             In

doing so, the District Court ruled that under United States v.

Lasseque, 806 F.3d 618 (1st Cir. 2015), the flight from law

enforcement depicted in the video was "part and parcel of the crime

alleged"    --    namely     aiding         and   abetting    a   bank    robbery     and

conspiracy to commit bank robbery.                     Thus, the District Court

concluded that the redacted version of the video was highly

probative.       In addition, the District Court, relying on United

States v. Wallace, 461 F.3d 15, 25-26 (1st Cir. 2006), found in

the    alternative    that       the   redacted      version      of   the    video   was

probative     because      the     government        had     proffered       "sufficient


                                            - 4 -
extrinsic evidence of guilt to support the inference that the

flight is also probative of consciousness of guilt."

          Before the trial, however, the District Court reviewed

what the government had redacted from the video and instructed the

prosecutor to "redact more of it."     The result was that the 30-

minute chase video, which the District Court already had ordered

to be redacted once, was ordered to be redacted further so that,

in the end, only an 8-minute excerpt of the video would be played

for the jury during trial.   The District Court also instructed the

government not to elicit testimony regarding what happened in

redacted portions of the video from the law enforcement officer

who would be called as a witness to narrate the video.    Finally,

the District Court gave a specific cautionary instruction to the

jury that it "should consider that there may be reasons for Mr.

West's actions that are fully consistent with being innocent of

the charges in the indictment."

          West argues that the redacted version of the video, like

the video as a whole, is not probative of his guilt because the

record provides an insufficient basis for linking his flight from

law enforcement to his role in the bank robbery, which occurred 30

minutes before the chase began.     West also argues that even if

there were a sufficient basis for linking his flight from the

police to his commission of the crime, the redacted version of the




                               - 5 -
video was still unduly prejudicial, given its length and what it

depicted.     We disagree.

            Wallace, which the District Court relied on in finding

that the video was probative, itself relied on United States v.

Benedetti, 433 F.3d 111 (1st Cir. 2005). There, we explained that,

although "[f]light evidence is controversial and must be handled

with care," with an "adequate factual predicate, . . . evidence of

a criminal defendant's flight is generally thought to be probative

of his or her consciousness of guilt." Id. at 116. Thus, Benedetti

makes clear that "[a]s a precursor to admissibility, the government

must present sufficient extrinsic evidence of guilt to support an

inference that [the] defendant's flight was not merely an episode

of normal travel but, rather, the product of a guilty conscience

related to the crime alleged."            Id.     The aim is to ensure that "a

jury   does      not   infer    guilt     based    solely    on    a   defendant's

meanderings."      Id.

            In    so     concluding,      however,    we    explained    that    the

government must present only "enough extrinsic evidence to furnish

circumstantial badges of guilt."            Id. at 117.      We have also noted

that "[a] district court is afforded considerable leeway when

determining       whether      evidence     of    a   defendant's       flight    is

accompanied by a sufficient factual predicate."                   Id. at 116.    As

a result, we review "such decisions only for abuse of discretion."

Id.


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           Here,      the   District     Court    reasonably       found   that    the

government offered sufficient extrinsic evidence to support the

inference that West's flight, as depicted in the redacted video,

was probative of West's consciousness of guilt.                      This evidence

included the testimony of a cooperating witness, Joseph Richards,

who the government contended had been West's co-conspirator in the

bank robbery.        Richards testified at trial that he had robbed the

TD Bank and that West had helped in carrying out the robbery by

driving a vehicle both to and from the scene of the crime. Richards

also testified that West was involved in the planning of the

robbery by looking for a bank that was accessible to a highway and

not so out in the open.

           Moreover,        Richards     in      his    testimony      specifically

identified the type of vehicle that West was driving in assisting

with the robbery, as well as the location where West allegedly

waited in the vehicle while the robbery occurred.                      And Richards

also in that testimony identified that vehicle as a blue minivan

that matched the minivan depicted in the video.

           Richards' testimony regarding West's role as the get-

away   driver   is     exactly   the   sort      of    extrinsic    evidence      that

satisfies Benedetti. His testimony provided a basis for concluding

that West was not engaged merely in "an episode of normal travel"

unconnected     to    the   underlying    offenses       at   issue.       Id.     His

testimony did so by linking West's role in driving the vehicle


                                       - 7 -
depicted in the video to the underlying robbery, thereby giving

rise to an inference that, in seeking to elude the police during

the chase, West was conscious of his guilt for having been involved

in the robbery.     See United States v. Alcantara, 837 F.3d 102, 109

(1st Cir. 2016) (relying on coconspirators' testimony as extrinsic

evidence).

             Richards' testimony suffices to distinguish this case

from the one that West relies on most heavily, United States v.

Doe, which is an unreported case from the District of Maine.               2011

WL 5983034 (D. Me. Nov. 29, 2011).             In Doe, the District Court

found that the government failed to present sufficient evidence to

support an inference that the defendant’s flight was related to

the crime alleged, and the district court therefore excluded the

flight evidence.      Id. at *2.     But, even assuming that the evidence

in Doe did not suffice to render the flight evidence at issue in

that case probative, there was no extrinsic evidence in Doe

specifically linking the flight itself to the underlying crime as

there is here in consequence of Richards' testimony.

             Of   course,    even   when   there   is   sufficient    extrinsic

evidence     to   link      the   flight   evidence     to    the   defendant's

consciousness of guilt, the flight evidence's "admissibility is

not automatic."      Benedetti, 433 F.3d at 116.             Such evidence must

still pass the Rule 403 balancing test to ensure that, probative

though the flight evidence may be, its admission would not be


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unduly prejudicial.      See Fed. R. Evid. 403.     And West did argue

below that, wholly apart from the issue of whether extrinsic

evidence sufficed to link the evidence of West's flight to West's

involvement in the underlying crime, the flight video (even in its

redacted form) was still unduly prejudicial.

             But, a district court is afforded wide "latitude in

determining whether the evidence passes the Rule 403 balancing

test," such that we review its ruling on such a matter only for

abuse of discretion.       Benedetti, 433 F.3d at 117.        Moreover,

cautionary instructions can further minimize the risk of unfair

prejudice.     Daigle v. Me. Med. Ctr., Inc., 14 F.3d 684, 690 (1st

Cir. 1994) (holding that cautionary jury instruction minimized

possible prejudicial impact of documentary exhibits).

             Here, the District Court found there to be no risk that

the probative value of the video would be substantially outweighed

by unfair prejudice to West only after the District Court had

carefully reviewed the video and required especially provocative

chunks of it to be removed in order to ensure that the video would

not provoke an "emotional response" from the jury.         In addition,

the   District   Court   instructed   the   government's   witness,   who

narrated the video at trial, not to reference the portions of the

video that had been ordered redacted.       And, finally, the District

Court gave a specific cautionary instruction to the jury that it

"should consider that there may be reasons for Mr. West's actions


                                 - 9 -
that are fully consistent with being innocent of the charges in

the indictment."

           Thus, while West contends that the video even in its

redacted form should have been excluded, we see no basis for

concluding that the District Court abused its discretion in ruling

as it did, given the District Court's findings regarding the

probative nature of the flight evidence and the steps that the

District Court took to mitigate the risk of unfair prejudice.

Accordingly, we reject West's first ground for challenging his

convictions.

                                   III.

           West also argues that the District Court abused its

discretion when it ruled that two statements that West made to

police in an interview following his arrest for his role in the TD

Bank   robbery   could   be   introduced   into   evidence   only   if   the

government could introduce other statements that West made to the

police at that time.     West contends that the District Court abused

its discretion in making this conditional offer for the following

reason:   The statements that the government would be permitted to

introduce concerned a prior robbery-related conviction of West's

and thus would impermissibly prejudice the jury against him.             But,

West appears to premise his challenge to the District Court's

conditional evidentiary ruling on his underlying contention that

the District Court erred in deeming the statements that West sought


                                  - 10 -
to introduce to be inadmissible hearsay.      And, as that premise is

mistaken, his challenge necessarily fails.1

            The two statements from West's interview with the police

following his arrest in connection with the TD Bank robbery that

West wished to introduce as admissible hearsay were (1) his

statement that the interviewing officer should review the security

footage from the motel where he had been staying the night before

the robbery, as that footage would prove he was at the motel during

the robbery; and (2) his statement to the police, after being told

that he had been identified by witnesses as one of the robbers, to

bring those witnesses to identify him as they would not be able to

do so.    West argues that, contrary to the District Court's ruling,

each of these statements falls under the state-of-mind exception

to the rule against the admission of hearsay. Fed. R. Evid. 803(3)

(providing that out of court statements concerning "then-existing

mental,    emotional,   or   physical    condition"   may   be   offered

regardless of whether the declarant is available as a witness).

            But, the state-of-mind exception to the hearsay rule

does not apply to "a statement of memory or belief to prove the



     1 In his briefing, West makes no argument that, even if the
statements he wished to introduce were in fact hearsay, he was
harmed in any way by the conditional offer made by the District
Court. Nor did West explain how, in that event, he could win when
asked to do so at oral argument. Therefore, we have no reason to
address West's contention that the prior bad act evidence was not
admissible under Federal Rule of Evidence 404(b).


                                - 11 -
fact remembered or believed."   Id.   Indeed, the Advisory Committee

Notes explain that this exception to the state-of-mind exception

"is necessary to avoid the virtual destruction of the hearsay rule

which would otherwise result from allowing state of mind, provable

by a hearsay statement, to serve as the basis for an inference of

the happening of the event which produced the state of mind." Fed.

R. Evid. 803(3) advisory committee's note to 1972 proposed rules.

          Thus, the state-of-mind exception does not encompass the

statements in question.    As the government rightly points out,

while West contends that he sought to introduce each of these

statements solely to show that he had an innocent state of mind at

the time that he made them, the inference that West had an innocent

state of mind at that time could be drawn by the jury only if the

jury found that the statements were true.       See United States v.

Cianci, 378 F.3d 71, 106 (1st Cir. 2004) (finding that the state-

of-mind exception did not apply where the evidence offered was to

be used to prove the truth of the assertion).    As one of our sister

circuits explained in dealing with an analogous case,

          [w]hat would be relevant is that [defendant]
          was in truth in the wrong place at the wrong
          time -- not that [second defendant] thought
          so. Hence the statement is irrelevant unless
          it was true, in which case it would be hearsay,
          and inadmissible under any of the exceptions
          in Fed. R. Evid. 803 and 804. Similarly, the
          declarant's state of mind and 'pattern of
          verbal behavior' were irrelevant to any issue
          in the case and cannot be invoked like a mantra
          to circumvent a hearsay objection.


                                - 12 -
United States v. Harwood, 998 F.2d 91, 97-98 (2d Cir. 1993).

           In consequence, West fails to establish the premise on

which    his   challenge    to   the       District   Court's    conditional

evidentiary ruling rests -- namely, that the statements that West

wished to introduce were themselves admissible.                 We therefore

reject   his   contention    that    the     District   Court    abused   its

discretion.

                                     IV.

           The judgment of the District Court is affirmed.




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