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    United States v. Cooper, 4th Cir. (1998)

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    The document discusses a court case involving a man named Carl Benit Cooper who was convicted of various charges including conspiracy to commit bank robbery, bank robbery, armed bank robbery, using a firearm during a crime of violence, and bankruptcy fraud. The document outlines the facts of the case and discusses Cooper's appeals arguing that the charges were improperly joined, the trial should have been severed, there was insufficient evidence for one charge, and prior bad acts evidence should have been excluded.

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    United States v. Cooper, 4th Cir. (1998)

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    Scribd Government Docs
    13 views7 pages
    The document discusses a court case involving a man named Carl Benit Cooper who was convicted of various charges including conspiracy to commit bank robbery, bank robbery, armed bank robbery, using a firearm during a crime of violence, and bankruptcy fraud. The document outlines the facts of the case and discusses Cooper's appeals arguing that the charges were improperly joined, the trial should have been severed, there was insufficient evidence for one charge, and prior bad acts evidence should have been excluded.

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    Filed: 1998-01-28 Precedential Status: Non-Precedential Docket: 96-4738

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    The document discusses a court case involving a man named Carl Benit Cooper who was convicted of various charges including conspiracy to commit bank robbery, bank robbery, armed bank robbery, using a firearm during a crime of violence, and bankruptcy fraud. The document outlines the facts of the case and discusses Cooper's appeals arguing that the charges were improperly joined, the trial should have been severed, there was insufficient evidence for one charge, and prior bad acts evidence should have been excluded.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    13 views7 pages

    United States v. Cooper, 4th Cir. (1998)

    Uploaded by

    Scribd Government Docs
    The document discusses a court case involving a man named Carl Benit Cooper who was convicted of various charges including conspiracy to commit bank robbery, bank robbery, armed bank robbery, using a firearm during a crime of violence, and bankruptcy fraud. The document outlines the facts of the case and discusses Cooper's appeals arguing that the charges were improperly joined, the trial should have been severed, there was insufficient evidence for one charge, and prior bad acts evidence should have been excluded.

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    of 7

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.

    No. 96-4738

    CARL BENIT COOPER,


    Defendant-Appellant.
    Appeal from the United States District Court
    for the District of South Carolina, at Charleston.
    Falcon B. Hawkins, Chief District Judge.
    (CR-95-206)
    Argued: October 3, 1997
    Decided: January 28, 1998
    Before NIEMEYER and HAMILTON, Circuit Judges, and BOYLE,
    Chief United States District Judge for the Eastern District of North
    Carolina, sitting by designation.
    _________________________________________________________________
    Affirmed by unpublished opinion. Chief Judge Boyle wrote the opinion, in which Judge Niemeyer and Judge Hamilton joined.
    _________________________________________________________________
    COUNSEL
    ARGUED: Michael S. Seekings, Charleston, South Carolina, for
    Appellant. Brucie Howe Hendricks, Assistant United States Attorney,
    Charleston, South Carolina, for Appellee. ON BRIEF: J. Rene Josey,
    United States Attorney, Charleston, South Carolina, for Appellee.
    _________________________________________________________________

    Unpublished opinions are not binding precedent in this circuit. See


    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    BOYLE, Chief District Judge:
    A jury convicted Carl Benit Cooper of conspiracy to commit bank
    robbery in violation of 18 U.S.C. 371, bank robbery on September
    24, 1994 in violation of 18 U.S.C. 2113(b) and 18 U.S.C. 2, armed
    bank robbery on October 11, 1994 in violation of 18 U.S.C. 2113(a)
    and (d) and 18 U.S.C. 2, using or carrying a firearm in the commission of a crime of violence in violation of 18 U.S.C. 924(c) for the
    October 11 robbery and bankruptcy fraud in violation of 18 U.S.C.
    152 (concealment of assets). Cooper appeals his conviction on
    grounds that: (1) the bankruptcy fraud and bank robbery charges were
    improperly joined; (2) the district court erred in failing to grant his
    motion to sever the trial; (3) there was insufficient evidence to convict
    him of using or carrying a firearm during the commission of a crime
    of violence; and (4) the district court erred in denying his Motion to
    Exclude "Prior Bad Acts" evidence. We affirm.
    FACTS
    After retiring from the Army in 1993, Cooper moved to Summerville, South Carolina with his wife where they purchased a retirement
    home. Soon thereafter, Cooper began working for Pinkerton Security
    repairing NationsBank ATM machines. However, financial problems
    compelled Cooper and his wife to file for Chapter 13 bankruptcy protection in 1994. The bankruptcy trustee allowed Cooper and his wife
    to keep their retirement home but required them to report all disposable income to the trustee for the payment of creditors. Disregarding
    the precepts of their bankruptcy plan, Cooper and his wife made lump
    sum or double mortgage payments in July and August, 1994 without
    informing the trustee. They also continued to make substantial repairs
    and improvements to their home exceeding $13,000 in cost and often
    paid the suppliers and materialmen in full for their work. Neither the
    improvements made nor the money used to fund these improvements
    was reported to the trustee.
    2

    Shortly after Cooper's bankruptcy, NationsBank began suffering


    losses from its South Carolina ATM's. These losses were in excess
    of $207,000. Pinkerton logs linked the times and locations of the
    losses to circumstances when Cooper serviced or otherwise had
    access to those ATMs. These losses were not reported as robberies
    but were documented by Pinkerton as unaccounted-for shortages. On
    October 11, 1994, during what appeared to be a routine service call,
    Wilfred Rivers and an unindicted accomplice robbed Cooper and his
    partner, Nathan Williams, at gunpoint. Williams was bound by duct
    tape, handcuffed and forced into the Pinkerton van while Cooper,
    appearing frightened, gave Rivers and his accomplice over $47,000
    from the ATM. A video camera on the ATM captured the robbery in
    progress.
    Despite Cooper's apparent resistance during the robbery, the FBI's
    investigation linked Cooper to the robbery by virtue of his relationship with Rivers. The ATM video of the robbery showed that Cooper
    never acknowledged knowing Rivers when they encountered each
    other that night. Cooper also initially denied knowing Rivers and
    maintained his innocence during FBI questioning on November 9,
    1994. After approximately 15-20 minutes of additional questioning,
    Cooper recanted and admitted that he and Rivers were friends and
    neighbors. Cooper also admitted that he recognized the car Rivers
    drove to the robbery site as his (Rivers) wife's car. This evidence
    proved to be the cornerstone of the government's conspiracy charge
    and theory that the October 11 robbery had been a"staged" robbery
    arranged by Cooper and Rivers.
    Cooper and Rivers were subsequently indicted on January 11, 1995
    on counts of conspiracy to commit armed bank robbery, bank robbery, armed bank robbery, and use of a firearm during a crime of violence. On March 5, 1995, a Superseding Indictment was returned
    adding three counts of criminal bankruptcy fraud against Cooper and
    his wife. Although two of these counts were dismissed by the government prior to trial, Cooper was tried on one count of fraudulently concealing assets from the bankruptcy trustee. On June 1, 1995, Cooper
    filed his Motion to Sever the bankruptcy charge from the robbery
    charges, which the court denied. A jury trial was then held and
    Cooper was convicted on all counts.
    3

    DISCUSSION
    1. Joinder of Bankruptcy Fraud and Bank Robbery Charges
    Cooper first claims that the government's indictment improperly
    joined the bankruptcy fraud and bank robbery charges thereby depriving him of the opportunity to present testimony and witnesses in his
    defense. We disagree. Rule 8(a) of the Federal Rules of Criminal Procedure provides that separate offenses may be joined if they constitute
    parts of a common scheme, that is, if they involve acts united by some
    "substantial identity of facts or participants", United States v. Porter,
    821 F.2d 968, 972 (4th Cir.), cert. denied, 485 U.S. 934 (1988), or if
    the evidence supporting the separate counts overlaps so that the same
    evidence would be admissible at separate trials, United States v.
    Amato, 15 F.3d 230, 237 (2d Cir.), aff'd on rehearing, 32 F.3d 704
    (1994).
    The evidence clearly demonstrates that the bankruptcy fraud and
    bank robbery charges were parts of a common scheme. Cooper's plan
    involved stealing money from the ATM's he serviced and, with the
    intent to use this money to repair and improve his home, concealing
    these assets from the bankruptcy trustee. One offense stemmed from
    the other. His bankruptcy provided an impetus for the bank robberies
    which in turn gave rise to his bankruptcy fraud. There is also a significant overlap in evidence regarding Cooper's motive for committing
    both the bank robberies and bankruptcy fraud. Cooper had an opportunity to acquire significant sums of money from his access to the
    ATMs and a plan for using and concealing those assets from the
    bankruptcy trustee. For these reasons, we conclude that initial joinder
    was proper under Rule 8.
    2. Denial of Motion to Sever
    Cooper argues that the district court abused its discretion by failing
    to grant his motion to sever, impeding his ability to present an effective defense. This argument is without merit. Notwithstanding proper
    joinder under Rule 8(a) and a recognition that Rule 8 "authorizes
    some prejudice" against a defendant, United States v. Turoff, 853 F.2d
    1037, 1043 (2d Cir. 1988), Rule 14 of the Federal Rules of Criminal
    Procedure provides that, if a defendant is substantially prejudiced by
    4

    joinder of offenses, a district court may order separate trials. Fed. R.


    Crim. P. 14. Determining whether to sever a trial involves weighing
    trial efficiency considerations against the possible unfairness to a
    defendant. See United States v. Santoni, 585 F.2d 667, 674 (4th Cir.),
    cert. denied, 440 U.S. 910 (1979). A court's decision denying severance is reviewed under an "abuse of discretion" standard and will be
    disturbed only upon showing that a miscarriage of justice resulted. Id.
    The district court did not abuse its discretion in denying the defendant's motion to sever. The possibility of prejudice to Cooper at trial
    was greatly diminished by the substantial overlap of evidence. See
    United States v. Jamar, 561 F.2d 1103, 1106 (4th Cir. 1977). Characterizing any remaining prejudice as "substantial" would be mere conjecture in light of Cooper's failure to specifically identify the content
    of his prospective testimony. A bald assertion that the trial court's
    denial of his severance motion prevented him from testifying regarding one charge because it would have incriminated him on the other
    is insufficient by itself to show manifest injustice. See United States
    v. Larouche, 896 F.2d 815, 831 n6 (4th Cir. 1990). This analysis, coupled with the district court's cautionary charge to the jury, suggests
    Cooper was not substantially prejudiced by the joint trial.
    3. Sufficiency of Evidence on 924(c) Charge
    Cooper next questions the sufficiency of the government's evidence on his 18 U.S.C. 924(c) charge. A conviction will be upheld
    on appeal "if there is substantial evidence, taking the view most
    favorable to the Government, to support . . . the conviction." United
    States v. Guay, 108 F.3d 545, 553 (4th Cir. 1997) (quoting Glasser
    v. United States, 315 U.S. 60, 80 (1942)).
    Cooper was charged with violating 18 U.S.C. 924 for Rivers' use
    of a firearm during the October 11 armed robbery. Foreseeable acts
    committed in furtherance of a conspiracy are attributable to coconspirators. See Pinkerton v. United States, 328 U.S. 640 (1946).
    The government was required to prove not only that Rivers used a
    firearm during or in relation to the armed bank robbery,* but also that
    Cooper could reasonably foresee such use.
    _________________________________________________________________
    *Satisfying the "during or in relation to" element of 924(c) simultaneously satisfies the "in furtherance" prong of the Pinkerton test.
    5

    It is undisputed that Rivers, Cooper's co-conspirator in the October


    11 armed robbery, "actively employed" a firearm during the commission of that offense, satisfying 924(c) and the Supreme Court's definition of "use" in Bailey v. United States , 116 S.Ct. 501, 508 (1995).
    The question is whether Cooper reasonably foresaw such use. Cooper
    claims that the evidence only established his intent to stage a "safe"
    robbery involving the use of handcuffs, not firearms and that therefore, he did not contemplate Rivers' use of a firearm during the robbery. This argument fails in light of the substantial evidence adduced
    at trial.
    Even if Rivers' use of a firearm during the staged robbery was not
    specifically planned, it was certainly foreseeable to Cooper, particularly in light of the fact that (1) Cooper knew his partner Williams
    carried a service revolver at all times and would be willing to use it
    if necessary, and (2) the genuineness of the robbery would more readily be called into question if Cooper and his partner were robbed by
    two men armed only with handcuffs. We conclude that this evidence,
    viewed in a light most favorable to the prosecution, supports Cooper's
    conviction on this charge.
    4. Admission of Rule 404(b) Evidence
    Cooper argues that the district court committed reversible error by
    admitting Calvin Tucker's testimony regarding instances of past larceny. We disagree. Rule 404(b) of the Federal Rules of Evidence provides that evidence of prior crimes, wrongs or acts is admissible to
    prove "motive, opportunity, intent, preparation, plan, knowledge,
    identity, or absence of mistake or accident . . ." but not to prove a
    defendant's character in order to show he acted in conformity with the
    charged offense. Fed. R. Evid. 404(b). This Circuit has adopted an
    "inclusive" interpretation of Rule 404(b) so that all necessary and reliable evidence of prior bad acts is admissible except that which is
    offered to prove propensity or criminal disposition. United States v.
    Sanchez, 118 F.3d 192, 195 (4th Cir. 1997).
    Tucker testified that he accompanied Cooper when they stole lumber from construction sites for use on Cooper's home. Contrary to
    what Cooper alleges, Tucker's testimony was not offered to prove his
    character but to support the government's theory that Cooper was des6

    perate to hold onto and improve his retirement home by any means
    available, including robbing ATMs, concealing assets and stealing
    construction supplies to avoid out-of-pocket costs. His testimony was
    not cumulative or redundant, rather it helped to create an additional
    link in the government's chain of events establishing Cooper's
    scheme.
    Even if "prior bad acts" evidence satisfies Rule 404(b), it may still
    be excluded under Rule 403 if its probative value is substantially outweighed by its prejudicial effect. Fed. R. Evid. 403. The evidence
    here was probative of the government's theory that Cooper was prepared to break the law to realize his ambition of completing his retirement home despite his bankruptcy. Extensive evidence presented at
    trial regarding Cooper's role in the bank robberies, including actual
    footage of the robbery by the ATM video camera and Cooper's conflicting statements during FBI interrogation, makes it improbable that
    Tucker's testimony was unduly prejudicial under the circumstances.
    Finally, introduction of Tucker's testimony, although prejudicial insofar as it inculpated Cooper, did not substantially and unfairly sway the
    jury in light of the limiting instructions given by the court obviating
    any residual prejudice. See United States v. Aramony, 88 F.3d 1369,
    1378 (4th Cir. 1996), cert. denied, 117 S.Ct. 1842 (1997). Accordingly, the district court did not abuse its discretion in admitting this
    evidence.
    CONCLUSION
    Finding no error, we affirm the conviction.
    AFFIRMED
    7

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