Defendants Fredrick Eugene Carney and William John Ewing were jointly tried for a series of armed robberies, including incidents at Cash Express locations in Alabama and Tennessee, as well as bank robberies in Smyrna and Whites Creek, Tennessee. The government charged them with Hobbs Act robbery, bank robbery, and multiple counts of using or brandishing a firearm during a crime of violence under 18 U.S.C. § 924(c). The procedural history involved multiple indictments; while Ewing initially moved to sever his trial from Carney's, he later withdrew those objections at a pretrial conference, stating he wished to proceed on the entire Third Superseding Indictment. During the trial, the government introduced evidence of an uncharged robbery in Moulton, Alabama, to prove the defendants' identity and modus operandi. Carney also moved to suppress evidence seized from a vehicle parked at his sister's residence, arguing the seizure violated the Fourth Amendment. The jury convicted both defendants on multiple counts, and they appealed the denial of severance, the suppression motion, the admission of other-acts evidence, and the sufficiency of the evidence for the firearms conviction.
The Sixth Circuit addressed four primary issues. First, regarding severance, the court held that Ewing waived his argument because his counsel explicitly agreed in open court to proceed on the entire Third Superseding Indictment without severance. The court reasoned that such an intentional relinquishment of a known right is not reviewable, noting that Ewing's counsel stated he was 'very adamant that he wants to go [to trial] on all charges.' Second, concerning the motion to suppress, the court affirmed the denial because Carney failed to establish standing. Under Sixth Circuit precedent, a defendant must show a subjective and objectively reasonable expectation of privacy at the location searched. The court found Carney was merely a 'casual visitor' at his sister's residence, as he provided no evidence of overnight stays, personal belongings, or other meaningful connections to the home beyond parking his car there. Third, the court upheld the admission of the uncharged Moulton robbery evidence under Federal Rule of Evidence 404(b). The court applied a three-part test, finding that the evidence was admissible to prove identity and modus operandi due to striking similarities, such as the use of the same vehicle, clothing, and method of operation within 90 minutes of each other. The court also determined that the district court did not abuse its discretion in balancing probative value against unfair prejudice, especially given the limiting instructions provided to the jury. Finally, regarding the sufficiency of the evidence for the § 924(c) conviction, the court found that multiple witnesses testified that Ewing held a real, semi-automatic pistol during the bank robbery. Viewing the evidence in the light most favorable to the government, the court concluded that a rational jury could find beyond a reasonable doubt that Ewing brandished a real firearm.
The decision reinforces the principle that defense counsel's explicit agreement to a joint trial in open court constitutes a waiver of severance arguments on appeal. It also clarifies the high bar for establishing Fourth Amendment standing for guests at a residence, requiring more than a familial relationship or occasional parking of a vehicle. The ruling confirms that evidence of uncharged crimes is admissible to prove identity and modus operandi when the similarities are distinctive, provided the jury receives limiting instructions. The convictions stand, and the defendants remain subject to their respective sentences of 147 and 384 months of imprisonment.