UNITED STATES of America, Appellee, v. Pearlie JOHNSON, Defendant-Appellant, 365 F. App'x 242

SUMMARY ORDER Defendant-appellant Pearlie Johnson was convicted (following a jury trial) of being a felon in possession of ammunition (Count 1) and a felon in possession of a firearm and ammunition (Count 2) with respect to a “road rage” shooting on July 25, 2005, and a shooting in an elevator on December 4, 2005. Prior to trial, the district court denied defendant’s motion pursuant to Federal Rule of Criminal Procedure 14(

a) to sever the two counts of the superseding indictment. Also prior to trial, the Government moved to admit “other acts” evidence regarding an uncharged incident on December 9, 2005, pursuant to Federal Rule of Evidence 404(b). The district court admitted the evidence over defendant’s objections. On appeal, defendant argues that the district court abused its discretion both in denying his motion to sever and in admitting the Rule 404(

b) evidence. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal. We review the denial of a Rule 14(

a) motion for abuse of discretion. See United States v. Werner, 620 F.2d 922, 926 (2d Cir.1980). Demonstrating abuse of discretion in this context is particularly difficult because the defendant “must show not simply some prejudice but substantial prejudice.” Id. at 928. Indeed, the district court’s discretion "with respect to Rule 14 motions is “virtually unreviewable.” United States v. Salameh, 152 F.3d 88, 115 (2d Cir.1998) (per curiam); see also United States v.

Rittweger, 524 F.3d 171, 179 (2d Cir.2008), cert. denied, — U.S.-, 129 S.Ct. 1391, 173 L.Ed.2d 642 (2009) (stating that “in seeking to overturn the denial of a Rule 14 motion, the defendant bears a heavy burden,” which requires him to “show prejudice so severe that his conviction constituted a miscarriage of justice”) (internal quotation mark omitted). Defendant primarily argues that the counts charged were not sufficiently related to be tried together and that the district court did not effectively instruct the jury as to counteract the resulting prejudice.

But here, proof of each count involved overlapping evidence. See also Fed.R.Crim.P. 8(a) (counts may be joined in a single indictment if they “are of the same or similar character”). Moreover, the district court duly issued a limiting instruction — to which defendant did not object — clearly directing the jury to consider each count separately.

Because defendant has failed to demonstrate “prejudice so great as to deny him a fair trial,” Salameh, 152 F.3d at 115, or that the alleged prejudice outweighs the “promotion of] judicial efficiency” of trying related counts together, id., we conclude that the district court did not abuse its discretion in denying defendant’s Rule 14(

a) motion to sever. We also review the admission of Rule 404(

b) evidence for abuse of discretion. United States v. Inserra, 34 F.3d 83, 89 (2d Cir.1994). To the extent that an error is evident, the error is subject to harmless error analysis. United States v. Rea, 958 F.2d 1206, 1220 (2d Cir.1992) (“An erroneous ruling on the admissibility of evidence is harmless if the appellate court can conclude with fair assurance that the evidence did not substantially influence the jury.”). This Circuit has adopted an “inclusionary” approach to Rule 404(

b) evidence, which can be admitted “for any purpose other than to show a defendant’s criminal propensity,” unless the trial judge concludes that its probative value is outweighed by the prejudicial impact. United States v. Carboni 204 F.3d 39, 44 (2d Cir.2000). If Rule 404(

b) evidence is admitted, the court must, if requested, provide a limiting instruction to the jury. See Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). With respect to the charged road rage incident on July 25, 2005, defendant argues that the district court failed to issue a timely limiting instruction regarding the Rule 404(

b) evidence of the December 9, 2005 uncharged incident. Defendant has, however, waived this argument because defense counsel below clearly contributed to the alleged “delay” by seeking additional time to submit revisions to the proposed limiting instructions.

Indeed, defense counsel took the position — which the district judge explicitly acknowledged on the record without objection — that “[reviewing the instructions and submitting revisions] is more important to [the defendant] than the timing of [the instruction’s] actual delivery.” It was, in fact, the district court that was evidently keen to issue a limiting instruction sooner than later. See United States v.

Quinones, 511 F.3d 289, 321 (2d Cir.2007) (“The law is well established that if, as a tactical matter, a party raises no objection to a purported error, such inaction constitutes a true waiver which will negate even plain error review.”) (internal quotation marks omitted). As to the other acts evidence in the context of the charged elevator incident on December 4, 2005, defendant appears to argue that evidence of the uncharged December 9, 2005 incident should not have been admissible under any circumstance because the two incidents are wholly unrelated.

Even if the evidence was admitted in error, we conclude that such error was harmless when assessed against the Government’s overwhelming case.

More specifically, with respect to the road rage incident on July 25, there were multiple witnesses who firmly established that the defendant owned the red Hummer involved; defendant was placed near a McDonald’s Restaurant with his Hummer; there was an altercation with Paul Jamro-giewicz; the driver of the Hummer, identified as the defendant, had exited the vehicle and shot Jamrogiewicz; Jamrogiewicz later identified Johnson as the driver of the Hummer; and the Hummer was found abandoned just four miles away from the scene with McDonald’s debris nearby.

As to the December 4 elevator incident, multiple witnesses established that the defendant had shot Trai Kaufmann in the elevator. Indeed, the incident was captured on video and defendant subsequently identified himself in the footage, confirming that he had, in fact, shot Kaufmann. In light of the foregoing, we conclude that the admission of this evidence of the uncharged incident pursuant to Rule 404(

b) was not reversible error. We have considered defendant’s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.