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March 24, 2026 Get Citation Alerts Download PDF Add Note

United States v. William Ewing

Court of Appeals for the Sixth Circuit

• Citations: None known
• Docket Number: 25-5097
• Precedential Status: Non-Precedential
• Panel: Eric L. Clay, Julia Smith Gibbons

• Judges: Eric L. Clay; Julia Smith Gibbons; Whitney D. Hermandorfer

• Opinion

• Authorities (51)

• Cited By (0)

• Summaries (0)

• Similar Cases (16.1K)

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Combined Opinion

NOT RECOMMENDED FOR PUBLICATION
File Name: 26a0149n.06

Nos. 24-6051, 25-5097
FILED
UNITED STATES COURT OF APPEALS Mar 24, 2026
FOR THE SIXTH CIRCUIT KELLY L. STEPHENS, Clerk

)
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
FREDRICK EUGENE CARNEY (24-6051); )
WILLIAM JOHN EWING (25-5097), )
OPINION
Defendants-Appellants. )
)
)

Before: CLAY, GIBBONS, and HERMANDORFER, Circuit Judges.

CLAY, Circuit Judge. Following a joint trial, the jury convicted Defendants William

John Ewing (“Ewing”) and Fredrick Eugene Carney (“Carney”) of various crimes relating to a

series of armed robberies. This consolidated appeal followed, wherein: (1) Ewing challenges the

district court’s failure to sever defendants and charges for trial under Federal Rule of Criminal

Procedure 8; (2) Carney challenges the district court’s denial of his motion to suppress; (3) both

Defendants challenge the district court’s admission of evidence under Federal Rule of Evidence

404(b); and (4) Ewing challenges the sufficiency of the evidence supporting his conviction under

18 U.S.C. § 924 (c). For the reasons below, we AFFIRM the rulings of the district court.

I. BACKGROUND

A. Factual History

On March 24, 2022, an armed robbery occurred at a loan business, Cash Express, in

Moulton, Alabama. At approximately 2:45 PM, only one employee was working at the Cash
No. 24-6051/25-5097, United States v. Carney, et al.

Express. After two people drove up in a black Honda Civic and parked outside the Cash Express,

Defendant Fredrick Eugene Carney (“Carney”) exited the car and entered the store. Carney asked

the employee about obtaining a loan, and as the employee began discussing the topic, an

accomplice entered the store, pulled out a gun, and jumped the counter. The accomplice was

alleged by the government to be Defendant William John Ewing (“Ewing”). Upon directing the

employee to open the safe, Carney and the accomplice stole money from the safe and then exited

the store saying, “Let’s go get the next one.” Trial Tr. Vol. 2-B, R. 202, Page ID #1283-85. Carney

and his accomplice returned to the black Honda Civic and drove north. Surveillance footage

recorded the black Honda Civic driving away from the Cash Express with a non-functioning left

reverse light and distinctive weatherstripping.

At approximately 4:30 PM on the same day, Carney and his accomplice drove up in the

black Honda Civic to another Cash Express in Ardmore, Tennessee, which is about 45 minutes

away from Moulton. Carney and his accomplice were still wearing the same clothes. Carney’s

accomplice entered the Cash Express and asked the only employee working there at the time about

obtaining a loan. As the employee began discussing the topic, Carney entered the store and pulled

out a gun, and the two men conducted another armed robbery by walking around the counter and

directing the employee to open the money drawer.

On the morning of April 4, 2022, surveillance footage from Ewing’s apartment complex

recorded the same black Honda Civic, with a non-functioning left reverse light and distinctive

weatherstripping, parked outside Ewing’s apartment. Carney and Ewing exited the black Honda

Civic outside Ewing’s apartment in the surveillance footage. The car was also later confirmed to

be registered under Ewing’s name. On that morning, Ewing texted his sister, Latika Poole

(“Poole”): “I’m trying to get rich.” Trial Tr. Vol. 5, R. 205, Page ID #2072-73.

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No. 24-6051/25-5097, United States v. Carney, et al.

At around 2 PM that day, Carney and Ewing entered Regions Bank in Smyrna, Tennessee,

stood for a while, then came around the employees’ desks, pulled out guns, and proclaimed, “This

is a robbery.” Trial Tr. Vol. 2-B, R. 202, Page ID #1228. One of them pointed his gun at an

employee and stated that if the employee pushed the alarm button, he would shoot the employee.

Carney and Ewing directed employees to unlock the money drawer and vault, and they then stole

money from those places. They also said that they were going to “take somebody out” if they did

not get money from the vault. Id. at 1229. Afterward, Carney and Ewing drove off in a red Chevy

Impala that Carney owned. Carney later exchanged the red Chevy Impala for a black Dodge

Charger at a used car lot.

On April 20, 2022, Carney robbed another Cash Express in Greenbrier, Tennessee.

Carney. Carney escaped from the scene in his black Dodge Charger and evaded the police

pursuing him. On April 23, 2022, Carney told his girlfriend at the time, Shyanne McCullough

(“McCullough”), that he robbed the Regions Bank in Smyrna and multiple other Cash Express

locations, and she reported his confession to the police.

On May 1, 2022, while McCullough, Carney, and Ewing were at Ewing’s apartment,

Carney stated, “We’re going to hit a bigger bank.” Trial Tr. Vol. 3, R. 203, Page ID #1606-07.

During that conversation, McCullough also saw guns under Ewing’s couch and a gun on Carney’s

person. The next day, Carney and an accomplice alleged by the government to be Ewing robbed

First Horizon Bank in Whites Creek, Tennessee. During the robbery, Carney warned an employee

that he would get shot if he did not open the vault and then fired a gunshot into a nearby door.

Following reports of a robbery, law enforcement visited various addresses associated with

the suspected perpetrators, Carney and Ewing. One of those locations was Poole’s residence, and

during law enforcement’s visit there on May 2, 2022, law enforcement saw Carney, who attempted

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No. 24-6051/25-5097, United States v. Carney, et al.

to flee, but eventually arrested him pursuant to a warrant. While Carney initially fled from law

enforcement, officers spoke with Poole outside her residence, and she signed a consent form that

authorized a complete search of her address. As officers took photographs inside and outside of

her residence, interviewed her in the driveway, and searched the entire premises, Poole never

attempted to withdraw or limit her consent. Poole told officers that the black Dodge Charger

parked in the nearby carport belonged to Carney and that Carney “sometimes sleeps” at her

residence. Suppression Hr’g Tr., R. 144, Page ID #682, 693-94. Law enforcement towed the

black Dodge Charger, and after obtaining a search warrant, gathered incriminating evidence from

the vehicle.

B. Procedural History

On May 22, 2023, the grand jury returned the Third Superseding Indictment, which is the

operative indictment in this case. The Third Superseding Indictment charged Ewing and Carney

with: two counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951 (regarding the Cash

Express robberies in Ardmore and another location); two counts of armed bank robbery in

violation of 18 U.S.C. § 2113 (a) and (d) (regarding the robberies at the Regions Bank in Smyrna

and the First Horizon Bank in Whites Creek); two counts of brandishing a firearm during a crime

of violence in violation of 18 U.S.C. § 924 (c); and one count of discharging a firearm during a

crime of violence in violation of 18 U.S.C. § 924 (c). The Third Superseding Indictment also

charged Carney with: two additional counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951

(regarding the Cash Express robberies in Greenbrier and another location); one additional count

of brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924 (c); and one

count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922 (g)(1) and 924.

-4-
No. 24-6051/25-5097, United States v. Carney, et al.

Neither Carney nor Ewing were charged with any crimes relating to the Cash Express robbery in

Moulton.

Prior to the Third Superseding Indictment, Ewing had moved to sever his trial from

Carney’s trial after the grand jury returned the Superseding Indictment. Ewing had also filed a

motion objecting to misjoinder and requesting to sever his trial after the Second Superseding

Indictment. The district court denied all of these motions.

Ewing did not, however, raise any objection to misjoinder or move for severance after the

grand jury returned the Third Superseding Indictment. Instead, Ewing’s counsel indicated that

Ewing did not want the district court to sever his trial. At a pretrial conference, the district court

requested Carney’s and Ewing’s counsel’s thoughts regarding “how the trial [will] go forward

[since] there’s a new indictment,” referring to the Third Superseding Indictment. Pretrial

Conference Tr., R. 273, Page ID #3067-68. Carney’s counsel stated that Carney “wishes to

proceed [to trial] on the entire indictment” and “does not wish to have it severed.” Id. at 3076.

After some back and forth, the district court asked Ewing’s counsel for his views, and Ewing’s

counsel stated that he “second[s] everything [his] colleague has said,” and “Ewing . . . is very

adamant that he wants to go [to trial] on all charges in the third superseding indictment.” Id. at

1. Ewing’s counsel further confirmed, “I won’t go over all of the responses my colleague has

given, but I agree with them.” Id.

Carney also filed a motion to suppress evidence that resulted from the seizure of the black

Dodge Charger, which he alleged was an unreasonable seizure in violation of his Fourth

Amendment rights. Following a suppression hearing, where the government presented testimony

from five witnesses and introduced twelve exhibits and Carney did not present any evidence, the

district court denied Carney’s motion to suppress.

-5-
No. 24-6051/25-5097, United States v. Carney, et al.

In preparation for trial, the government filed a notice of intent to introduce evidence

regarding the uncharged robbery of the Cash Express that occurred in Moulton, Alabama on March

24, 2022. The district court admitted such evidence pursuant to Federal Rule of Evidence 404(b),

finding that the government offered it for the legitimate purposes of establishing the identity and

modus operandi of the perpetrators of other charged robberies at issue in the case, including the

robbery of the Cash Express in Ardmore that occurred on the same day. The district court assured

the parties that the evidence would be accompanied by a limiting instruction for the jury. At trial,

the district court provided the limiting instruction once when the jury first heard the evidence of

the Moulton robbery and again at closing instructions.

Following trial, the jury convicted Ewing of one count of armed bank robbery in violation

of 18 U.S.C. § 2113 (a) and (d) and one count of brandishing a firearm during a crime of violence

in violation of 18 U.S.C. § 924 (c) (both regarding the Regions Bank robbery in Smyrna). The jury

convicted Carney of two counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951 (regarding

the Cash Express robberies in Ardmore and another location); two counts of armed bank robbery

in violation of 18 U.S.C. § 2113 (a) and (d) (regarding the robberies at the Regions Bank in Smyrna

and the First Horizon Bank in Whites Creek); three counts of brandishing a firearm during a crime

of violence in violation of 18 U.S.C. § 924 (c); one count of discharging a firearm during a crime

of violence in violation of 18 U.S.C. § 924 (c); and one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922 (g)(1) and 924. The district court sentenced Ewing and

Carney to 147 and 384 months of imprisonment respectively.

This appeal followed. Ewing challenges the district court’s failure to sever the defendants

and charges for trial. Carney challenges the district court’s denial of his motion to suppress

evidence resulting from the seizure of his black Dodge Charger. Both Ewing and Carney challenge

-6-
No. 24-6051/25-5097, United States v. Carney, et al.

the district court’s admission of evidence regarding the uncharged robbery of the Cash Express in

Moulton. And Ewing challenges the sufficiency of the evidence for his conviction of brandishing

a firearm during a crime of violence in violation of 18 U.S.C. § 924 (c).

II. DISCUSSION

A. Severance of Defendants and Charges

Ewing argues that his convictions must be vacated because severance was mandatory due

to misjoinder of defendants and charges in the Third Superseding Indictment.

After the grand jury returned the Second Superseding Indictment, Ewing moved for

severance based on misjoinder under Federal Rule of Criminal Procedure 8 and, alternatively,

moved for severance based on prejudicial joinder under Rule 14. The district court denied Ewing’s

motion. The grand jury later issued a Third Superseding Indictment, which became the operative

indictment in this case and served as the basis for the charges against Ewing at trial. Ewing did

not file any motion for severance or raise any objection to misjoinder regarding the Third

Superseding Indictment.

On appeal, Ewing presents argument only on his motion for severance based on misjoinder

under Rule 8 and does not discuss his motion for severance based on prejudicial joinder under

Rule 14. This is likely so because we “have long held that a defendant waives an argument for

severance under Rule 14 if he does not renew his Rule 14 motion ‘following the close of the

evidence at trial.’” United States v. Abbott, No. 24-5602, 2025 WL 2237656, at *4 (6th Cir. Aug.

6, 2025) (quoting United States v. Sherrill, 972 F.3d 752, 762 (6th Cir. 2020)). Because Ewing

did not renew his motion at the end of the trial, Ewing waived any argument for severance under

Rule 14.

-7-
No. 24-6051/25-5097, United States v. Carney, et al.

And, as the government correctly contends, Ewing also waived his argument for severance

under Rule 8. At a pretrial conference, the district court requested Carney’s and Ewing’s counsel’s

thoughts regarding “how the trial [will] go forward [since] there’s a new indictment,” referring to

the Third Superseding Indictment. Pretrial Conference Tr., R. 273, Page ID #3067-68. In

response, Carney’s counsel stated that Carney “wishes to proceed to trial on the entire indictment,

the third superseding indictment,” and “does not wish to have it severed.” Id. at 3076. Ewing’s

counsel then stated that he “second[s] everything [his] colleague has said,” and “Ewing . . . is very

adamant that he wants to go [to trial] on all charges in the third superseding indictment.” Id. at

1. Ewing’s counsel further confirmed, “I won’t go over all of the responses my colleague has

given, but I agree with them.” Id. He then agreed with the district court’s proposed timeline for a

joint trial on all charges.

Through these statements at the pretrial conference, Ewing’s counsel agreed that Ewing

did not wish to have the Third Superseding Indictment severed and instead wished to proceed

jointly with Carney on the entire indictment. By agreeing with Carney’s counsel’s statement that

he did not wish to have the indictment severed for trial, Ewing’s counsel waived any argument on

appeal that the district court should have severed the defendants or charges in the Third

Superseding Indictment. Such an “intentional relinquishment or abandonment of a known right”

is not reviewable by this Court. United States v. Carter, 89 F.4th 565, 568 (6th Cir. 2023) (quoting

United States v. Olano, 507 U.S. 725, 733 (1993)). For we have held that an “attorney cannot

agree in open court with a judge’s proposed course of conduct and then charge the court with error

in following that course,” and when an attorney does so, his client “waive[s] his claim on the

issue.” United States v. Aparco-Centeno, 280 F.3d 1084, 1088 (6th Cir. 2002); accord United

States v. Sloman, 909 F.2d 176, 182 (6th Cir. 1990).

-8-
No. 24-6051/25-5097, United States v. Carney, et al.

Ewing argues that waiver should not apply to this argument because he filed the motion

for severance regarding the Second Superseding Indictment, and a “new motion to sever or

claiming misjoinder would not have brought anything new to the trial court.” Ewing Appellant’s

Reply at 6. But that is incorrect. Ewing’s motion for severance contemplates only the counts in

the Second Superseding Indictment. But the Third Superseding Indictment replaced the Second

Superseding Indictment as the operative indictment for trial, and all of the counts except for one

in the Third Superseding Indictment are different from the counts in the Second Superseding

Indictment. Moreover, the Third Superseding Indictment alleged two new robberies and added

four new counts, including one new alleged crime. A defendant must raise a “defect in the

indictment” prior to trial, Fed. R. Crim. P. 12(b)(3)(B), and Ewing did not raise any defect in the

Third Superseding Indictment prior to his trial. But, in any event, Ewing relinquished any

argument regarding severance when his counsel provided that Ewing did not wish to have the

Third Superseding Indictment severed for trial.

Ewing next argues that his “counsel’s statement about the desire to proceed to trial can

only be considered a waiver if taken grossly out of context.” Ewing Appellant’s Reply at 7. But

we reasonably view Ewing’s counsel’s statements in the context established by the district court

when it invited counsel’s thoughts on “how the trial [will] go forward [since] there’s a new

indictment.” Pretrial Conference Tr., R. 273, Page ID #3067-68. Ewing contends that his

counsel’s indication that he did not want the Third Superseding Indictment to be severed was

limited solely to the context of severance as “an option to address concerns over speedy trial

issues” and “did not include severance of charges at all under Rule 8(a).” Ewing Appellant’s Reply

at 10. But that suggested limitation exists nowhere in the record. Ewing’s counsel stated that he

“second[s] everything [his] colleague has said,” including that he did not want the indictment to

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No. 24-6051/25-5097, United States v. Carney, et al.

be severed (without any exception or limitation), and that he “is very adamant that he wants to go

[to trial] on all charges in the third superseding indictment.” Pretrial Conference Tr., R. 273, Page

ID #3089. A “party cannot tell the district court one thing and then tell us the opposite.” United

States v. Artrip, 364 F. App’x 204, 205 (6th Cir. 2010). And Ewing’s counsel told the district

court that he did not wish to have the indictment severed and now tells us that he did wish to have

the indictment severed.

Because Ewing did not make any objection to the Third Superseding Indictment regarding

severance or misjoinder and instead provided that he did not wish for the Third Superseding

Indictment to be severed for trial, we find that Ewing did not preserve the issue of severance for

appellate review.

B. Carney’s Motion to Suppress

Carney challenges the district court’s denial of his motion to suppress evidence resulting

from the seizure of his black Dodge Charger from Poole’s residence, arguing that the seizure

violated his Fourth Amendment rights.

In reviewing the denial of a motion to suppress, we apply a “mixed standard of review.”

United States v. Simmons, 129 F.4th 382, 386 (6th Cir. 2025). “We review the district court’s

factual findings for clear error and legal conclusions de novo.” Id. (emphasis added). In doing

so, we “consider the evidence in the light most favorable to the government.” United States

v. Taylor, 121 F.4th 590, 594 (6th Cir. 2024). The denial of a motion to suppress “will be affirmed

if it ‘can be justified for any reason.’” United States v. Burrell, 114 F.4th 537, 550 (6th Cir. 2024)

(quoting United States v. Whitley, 34 F.4th 522, 528 (6th Cir. 2022)).

The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const.

amend. IV. Fourth Amendment rights are “personal,” so “a defendant must show that his own

• 10 - No. 24-6051/25-5097, United States v. Carney, et al.

rights were infringed.” United States v. Russell, 26 F.4th 371, 374 (6th Cir. 2022) (citations and

quotations omitted). A defendant thus bears “the burden of establishing his standing to assert a

Fourth Amendment violation.” United States v. Smith, 263 F.3d 571, 582 (6th Cir. 2001). To

establish standing, “the defendant must show (1) that he had a subjective expectation of privacy,

and (2) that his expectation was objectively reasonable.” United States v. Washington, 573 F.3d

279, 282 (6th Cir. 2009).

The government argued at the district court and now argues on appeal that Carney lacks

standing to challenge the seizure of his vehicle from Poole’s residence. In denying Carney’s

motion to suppress, the district court did not make any finding regarding whether Carney had

standing to contest the seizure and, instead, concluded that the seizure was lawful regardless. But

Carney failed to carry his burden of “establishing his standing to assert a Fourth Amendment

violation.” Smith, 263 F.3d at 582.

“It is well-settled that a person has no reasonable expectation of privacy where he is neither

a resident nor an overnight guest in a residence.” United States v. Plavcak, 411 F.3d 655, 665 (6th

Cir. 2005). “The Supreme Court has recognized an overnight guest’s ‘legitimate expectation of

privacy in his host’s home.’” United States v. Knowledge, 418 F. App’x 405, 407 (6th Cir. 2011)

(quoting Minnesota v. Olson, 495 U.S. 91, 98 (1990)). To otherwise have a reasonable expectation

of privacy as a guest at another person’s residence, a defendant must “establish that he has a

meaningful connection to the residence.” United States v. Haynes, 108 F. App’x 372, 374 (6th

Cir. 2004) (quotation omitted). For example, in United States v. Pollard, we held that a defendant

had standing to contest a search of another person’s residence where he provided evidence that he

“had been staying at the home earlier in the week,” “occasionally spent the night at the residence,”

“kept some personal belongings in a closet,” “sometimes ate meals with the family during his

• 11 - No. 24-6051/25-5097, United States v. Carney, et al.

visits,” and “was allowed to stay in the home even if the residents were not present.” 215 F.3d

643, 647-48 (6th Cir. 2000). But we have also held that “a casual, transient visitor” lacks Fourth

Amendment standing to challenge a search or seizure at another person’s residence. United States

v. McNeal, 955 F.2d 1067, 1070 (6th Cir. 1992); see also United States v. Anderson, 166 F.3d

1215, 1998 WL 833701, at * 7 (6th Cir. 1998) (“A casual visitor, unlike an overnight visitor, does

not have standing to contest a warrantless search.”).

The only argument that Carney offers as to why he had a reasonable expectation of privacy

at Poole’s residence is that he “was a frequent overnight guest” at Poole’s residence and “was

permitted to keep his car at the residence.” Carney Appellant’s Br. at 13, 15. But Carney does not

cite to any evidence in the record that substantiates these assertions. Carney does not confirm that

he was in fact an overnight guest at the time of the seizure of his vehicle or elaborate on the

frequency of his overnight stays at Poole’s residence. Carney does not indicate what belongings,

if any, that he kept at Poole’s residence or whether he had any other privileges there besides

parking his car outside the residence while visiting. Cf. United States v. Waller, 426 F.3d 838,

844-45 (6th Cir. 2005) (holding that a defendant had a reasonable expectation of privacy at another

person’s apartment that he used “primarily for showering, changing clothes, and storing his

personal belongings,” including in a bedroom closet); United States v. Heath, 259 F.3d 522, 533

(6th Cir. 2001) (holding that a defendant had a reasonable expectation of privacy at his cousin’s

apartment where he “slept on the couch . . . once a week for approximately two years” and

“possessed a key which . . . allowed [him] unfettered access to the apartment and the ability to

admit and exclude others” (quotations omitted)). And although Carney was Poole’s brother,

“merely having a relationship with the homeowner does not by itself establish a reasonable

expectation of privacy.” United States v. Johnson, 171 F. App’x 499, 501-02 (6th Cir. 2006)

• 12 - No. 24-6051/25-5097, United States v. Carney, et al.

(citing United States v. Buckner, 717 F.2d 297, 300 (6th Cir. 1983) (holding that a defendant does

not have a reasonable expectation of privacy at his mother’s apartment)). The only evidence in

the record regarding Carney’s connection to Poole’s residence that is apparent to the Court, as

highlighted by the government, is Poole’s statement that Carney “sometimes sleeps” at her

residence. Suppression Hr’g Tr., R. 144, Page ID #682. That statement alone does not establish

that Carney had a reasonable expectation of privacy at Poole’s residence during the seizure. Given

the dearth of evidence, we may liken Carney to only a casual visitor, who lacks Fourth Amendment

standing to challenge a search or seizure at Poole’s residence. See McNeal, 955 F.2d at 1070; see

also Anderson, 1998 WL 833701, at *7.

Since Carney does not have standing to contest the seizure, the district court’s denial of

Carney’s motion to suppress “can be justified for any reason.” 1 Burrell, 114 F.4th at 550 (quoting

Whitley, 34 F.4th at 528). We therefore affirm the district court’s denial of the motion.

C. Rule 404(b) Evidence of the Uncharged Moulton Robbery

Both Ewing and Carney argue that the district court erred in admitting evidence regarding

the uncharged robbery at Cash Express in Moulton on March 24, 2022. The district court admitted

this evidence under Federal Rule of Evidence 404(b) for the purposes of establishing identity and

modus operandi, and Ewing and Carney preserved their objections.

Rule 404(b) prohibits district courts “from permitting evidence of other crimes or wrongs

(‘bad acts’) to be used to prove character or propensity to violate the law.” United States v. Fairley,

137 F.4th 503, 517 (6th Cir. 2025). “However, such evidence may be admitted for other purposes,

such as to show ‘motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

1
The district court indicated that the plain view and automobile exceptions justify law enforcement’s seizure of the
vehicle, but because the district court’s denial of Carney’s motion to suppress “can be justified for any reason,” we
need not review the merits of the other bases for the district court’s conclusion. Burrell, 114 F.4th at 550 (quoting
Whitley, 34 F.4th at 528).

• 13 - No. 24-6051/25-5097, United States v. Carney, et al.

mistake, or lack of accident.’” Id. (quoting Fed. R. Evid. 404(b)). And that list is “not

exhaustive”—another “proper purpose” is “modus operandi.” United States v. Perry, 438 F.3d

642, 648 (6th Cir. 2006) (emphasis added). “District courts possess broad discretion in admitting

evidence under Rule 404(b).” United States v. Will, 612 F. App’x 265, 267 (6th Cir. 2015). We

use a three-part test to review their exercise of that discretion: “First, we review for clear error the

factual determination that other acts occurred. Second, we review de novo the legal determination

that the acts were admissible for a permissible 404(b) purpose. Third, we review for abuse of

discretion the determination that the probative value of the evidence is not substantially

outweighed by unfair prejudicial impact.”2 Fairley, 137 F.4th at 517 (quoting United States v.

Adams, 722 F.3d 788, 810-11 (6th Cir. 2013)).

1. Step One

At the first step, there is no dispute that the robbery in Moulton occurred, so the district

court did not clearly err in so finding. But in United States v. Clay, we also held that, at the first

step, we “must review for clear error the district court’s determination that there is ‘sufficient

evidence to support a finding by the jury that the defendant committed’” the other act. 667 F.3d

689, 694 (6th Cir. 2012) (quoting Huddleston v. United States, 485 U.S. 681, 685 (1988)). To that

end, the district court stated that it would follow the “sufficient evidence approach used by the

Court in the Clay opinion” and found that there was “sufficient evidence that the perpetrators of

the Moulton robbery of the Cash Express were also the perpetrators of the Ardmore, Tennessee,

Cash Express [robbery] 90 minutes later on March 24, 2022.” Trial Tr. Vol. 2-B, R. 202, Page ID

1251-52 (citation modified). The district court highlighted the “testimony and evidence about

2
As the government points out, this Court’s caselaw is unsettled as to whether de novo or abuse of discretion review
governs the district court’s determination that prior bad acts were admissible for a proper purpose under Rule 404(b).
E.g., United States v. Mandoka, 869 F.3d 448, 457 (6th Cir. 2017). Because the government does not object to
applying de novo review in this case, we take that route.

• 14 - No. 24-6051/25-5097, United States v. Carney, et al.

the same or similar car, similar clothing, general description of the perpetrators, and then the

method of the robbery that’s depicted on video and still shots of the two facilities.” Id.

Ewing and Carney argue that the district court clearly erred at the first step because it found

that sufficient evidence shows that the perpetrators of the Moulton robbery were the same

perpetrators of the Ardmore robbery, instead of finding that sufficient evidence shows that Ewing

and Carney committed the Moulton robbery. To the extent that the district court did not use the

exact words articulated by this Court in Clay, under clear error review, we “look to the entire

record and determine whether we are ‘left with the definite and firm conviction that a mistake has

been committed.’” United States v. Ibarra, Nos. 24-5174/5176/5248/5361, 2025 WL 1542319, at

*8 (6th Cir. May 30, 2025) (quoting Mathis, 738 F.3d at 739). We “may affirm on any grounds

supported by the record, even if different from the reasons of the district court.” United States

v. Gilbert, 952 F.3d 759, 762 (6th Cir. 2020).

The record provides ample evidence to support a finding that Carney and Ewing committed

the Moulton robbery. McCullough, who personally knew Ewing and Carney, identified both of

them as the perpetrators of the Moulton robbery based on the surveillance footage. Surveillance

footage also recorded the perpetrators of the Moulton robbery driving away from the Cash Express

in a black Honda Civic with a non-functioning left reverse light and distinctive weatherstripping.

That same black Honda Civic was confirmed to be registered under Ewing’s name. And

surveillance footage also showed Carney and Ewing together exiting that same black Honda Civic

outside Ewing’s apartment. The perpetrators of the Moulton robbery were also wearing the same

clothes as the perpetrators of the Ardmore robbery only 90 minutes later, and cell phone records

placed Carney in Ardmore at the time of the Ardmore robbery. In light of this evidence, the district

court did not clearly err in finding that there was sufficient evidence at the first step.

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1. Step Two

At the second step, the district court found that the government offered evidence of the

Moulton robbery for two proper purposes: identity and modus operandi.

The district court properly admitted evidence of the Moulton robbery to establish the

identity of Ewing and Carney as the perpetrators of other charged robberies, including the robbery

of the Cash Express in Ardmore on the same day of the Moulton robbery and the robbery of the

Regions Bank in Smyrna on April 4, 2022. As already indicated, the perpetrators of the Moulton

and Ardmore robberies, which occurred within 90 minutes of each other, were wearing the same

clothes and driving the same car—a car registered under Ewing’s name and a car that Ewing and

Carney were later seen exiting outside Ewing’s apartment. While leaving the site of the Moulton

robbery, the perpetrators said, “Let’s go get the next one,” and then drove the car north in the

direction of Ardmore. Trial Tr. Vol. 2-B, R. 202, Page ID #1283-85, 1287, 1312. Because

McCullough identified Ewing and Carney as the perpetrators of the Moulton robbery, and that

robbery was connected to the Ardmore robbery, evidence of the Moulton robbery would indicate

that Ewing and Carney were also the perpetrators of the Ardmore robbery. Moreover, when exiting

the car used in the Moulton and Ardmore robberies while outside of Ewing’s apartment, Ewing

and Carney were wearing the same clothes as the perpetrators who later that day committed the

Smyrna robbery. In light of these links to other charged robberies, the district court properly

admitted evidence of the Moulton robbery to establish identity. To be sure, the identity of the

perpetrators of the charged robberies was a major, if not the most important, issue at trial, and

“when the issue is one related solely to identity, this Court has overwhelmingly approved of the

admission of ‘other acts’ evidence.” Perry, 438 F.3d at 648 (quoting United States v. Fountain,

2 F.3d 656, 668 (6th Cir. 1993)).

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The district court also properly admitted evidence of the Moulton robbery to show modus

operandi. “To qualify as modus operandi evidence, the similarity between the prior crime and the

charged offense must be striking, and the method must amount to a ‘signature.’” United States

v. Joseph, 270 F. App’x 399, 406 (6th Cir. 2008) (quoting Perry, 438 F.3d at 648). But “it is not

necessary . . . that the crimes be identical in every detail.” Id. (quoting Perry, 438 F.3d at 648).

So “two crimes of sufficient distinctive similarity can create . . . modus operandi.” Perry, 438 F.3d

at 648 (emphasis added). For example, in Perry, we found that the district court admitted evidence

of the other bank robbery for the proper purpose of establishing modus operandi where the

defendant followed a similar pattern in both the other bank robbery and the charged bank robbery:

the defendant entered the business carrying a gun, then made requests for change and money

orders, and then pulled out his gun to commit the robbery. Id.

Similarly, the Moulton robbery has sufficient distinctive similarity to at least one of the

charged crimes, the Ardmore robbery. Both of these robberies occurred at a Cash Express on the

same day within 90 minutes of each other. During these robberies, one of the perpetrators entered

the business and made a monetary request, and then the other perpetrator entered the business with

a firearm and initiated the robbery, in which they threatened the employee with their gun and

directed the employee to unlock the location where the money was stored. These “two crimes of

sufficient distinctive similarity” can establish “modus operandi.” Id. (emphasis added). Further,

other charged robberies also featured a similar method. To the extent that there were any slight

differences in the methods of the various charged robberies, “it is not necessary . . . that the crimes

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be identical in every detail” to establish modus operandi.3 Joseph, 270 F. App’x at 406 (quoting

Perry, 438 F.3d at 648).

1. Step Three

At the third step, the district court recognized that it would “do[] a Rule 403 analysis” and

found that the court would “alleviate any issues with 403 by giving a limiting instruction” that the

jury “may not consider [the evidence of the Moulton robbery] for any other purpose” apart from

identity and modus operandi. Trial Tr. Vol. 2-B, R. 202, Page ID #1251-5.

“In the case of a Rule 403 analysis, we grant the district court ‘very broad’ discretion in

making its determinations.” United States v. Libbey-Tipton, 948 F.3d 694, 701 (6th Cir. 2020)

(quoting United States v. Newsom, 452 F.3d 593, 603 (6th Cir. 2006)). We take “a maximal view

of the probative effect of the evidence and a minimal view of its unfairly prejudicial effect, and

will hold that the district court erred only if the latter outweighs the former.” Id. (quoting United

States v. Sassanelli, 118 F.3d 495, 498 (6th Cir. 1997)).

Ewing and Carney argue that the district court abused its discretion at this step because it

did not explicitly state on the record that the probative value of the evidence was not substantially

outweighed by unfair prejudice. But the district court acknowledged that it would “do[] a Rule

403 analysis,” which precisely involves evaluating whether the probative value of the evidence

was substantially outweighed by unfair prejudice. Trial Tr. Vol. 2-B, R. 202, Page ID #1251; Fed.

R. Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially

3
It is worth noting that we need not even consider whether the evidence was properly admitted to show modus
operandi because the district court properly admitted the evidence of the Moulton robbery to show identity. The
district court’s admission of the evidence for any other reason besides identity “does not affect the ultimate
admissibility of the evidence,” because if the district court “admitted evidence for a single legitimate reason, the
court’s articulation of additional erroneous reasons is of no consequence.” United States v. Ray, 549 F. App’x 428,
433 (6th Cir. 2013); see also United States v. Higgins, No. 22-3538, 2023 WL 6536752, at *7 n.5 (6th Cir. Oct. 6,
2023) (“Because the recordings served the proper purpose of pro[v]ing [the defendant’s] intent, the court need not
address his alternative argument that they fail as modus operandi evidence.”).

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outweighed by a danger of . . . unfair prejudice.”). And by finding that the court would “alleviate

any issues with 403 by giving a limiting instruction,” the district court indicated that the limiting

instruction would prevent the probative value of the evidence from being substantially outweighed

by the unfair prejudice. Id. at 1252. In doing so, the district court did not “rel[y] on erroneous

findings of fact, appl[y] the wrong legal standard, misapply[y] the correct legal standard when

reaching a conclusion, or ma[ke] a clear error of judgment,” as Ewing argues. Ewing Appellant’s

Br. at 40 (quoting Schlaud v. Snyder, 717 F.3d 451, 457 (6th Cir. 2013)); see also Randleman

v. Fid. Nat’l Title Ins. Co., 646 F.3d 347, 351-52 (6th Cir. 2011). Although the district court could

have stated its finding more clearly, the district court did not abuse its discretion where it

recognized that it would undertake the proper analysis at this step and then concluded that a

limiting instruction would alleviate any concern that the defendants would be unfairly prejudiced

by the evidence.

And to be clear, the probative value of the evidence was not substantially outweighed by

unfair prejudice to Ewing and Carney. The evidence of the Moulton robbery had significant

probative value because it linked Ewing and Carney to other charged robberies, including one that

occurred on the same day, and demonstrated their method of carrying out those robberies.

Although Ewing and Carney may have been prejudiced by this evidence, such prejudice was not

“unfair.” See Fairley, 137 F.4th at 518. “Unfair prejudice does not mean the damage to a

defendant’s case that results from the legitimate probative force of the evidence; rather it refers to

evidence which tends to suggest a decision on an improper basis.” United States v. Choate,

208 F.3d 215, 2000 WL 263348, at *6 (6th Cir. 2000) (quoting United States v. Talley, 164 F.3d

989, 1000 (6th Cir. 1994)). Through the limiting instruction, the district court ensured that the

jury would not use the evidence to render a decision based on an improper basis. See United States

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v. Townsend, 796 F.2d 158, 162 (6th Cir. 1986) (“[T]he district court, by giving a strong cautionary

instruction, insured [sic] that defendant would not be unfairly prejudiced by the testimony.”). The

district court provided the limiting instruction that the jury “must not consider [the evidence] for

any other purpose” to the jury once when they first heard the evidence of the Moulton robbery and

again at closing instructions. Trial Tr. Vol. 2-B, R. 202, Page ID #1262; Trial Tr. Vol. 7, R. 207,

Page ID #2369; see United States v. Cordero, 973 F.3d 603, 621 (6th Cir. 2020) (“[A]ny prejudice

resulting from [the] testimony was diminished by the court’s legally correct cautionary

instructions, which were delivered both at the time the testimony was given and again at the

conclusion of trial. The trial court’s delivery of consistent, frequent, and accurate limiting

instructions weighs against a finding of unfair prejudice.”). Although Ewing argues that the jury

may have used the evidence to show character or propensity, that argument fails to consider “the

almost invariable assumption of the law that jurors follow their instructions.” Richardson

v. Marsh, 481 U.S. 200, 206-07 (1987) (collecting cases); see also Samia v. United States, 599 U.S.

635, 646 (2023) (“[O]ur legal system presumes that jurors will attend closely the particular

language of such instructions in a criminal case and strive to understand, make sense of, and follow

them.” (citation modified)).

The district court thus did not err in exercising its discretion and admitting evidence of the

Moulton robbery under Rule 404(b).

D. Sufficiency of the Evidence for Ewing’s Conviction under 18 U.S.C. § 924 (c)

Ewing argues that his conviction for brandishing a firearm during a crime of violence in

violation of 18 U.S.C. § 924 (c) (regarding the Regions Bank robbery in Smyrna) should be vacated

because insufficient evidence supports the jury’s finding that Ewing used a real gun during the

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bank robbery. Ewing raised this argument at the district court by moving for a judgment of

acquittal under Federal Rule of Criminal Procedure 29, and the district court denied the motion.

“We review the district court’s denial of [a] motion for judgment of acquittal de novo.”

United States v. Howard, 947 F.3d 936, 947 (6th Cir. 2020) (emphasis added). “Our task is to

determine whether, ‘viewing the evidence in the light most favorable to the government, any

rational trier of fact could have found the elements of the crime beyond a reasonable doubt.’”

United States v. Robinson, 99 F.4th 344, 353 (6th Cir. 2024) (quoting United States v. Baggett,

251 F.3d 1087, 1095 (6th Cir. 2001)). “In doing so, we do not ‘weigh the evidence presented,

consider the credibility of witnesses, or substitute our judgment for that of the jury.’” Id. (quoting

United States v. Jackson, 470 F.3d 299, 309 (6th Cir. 2006)). We simply ask whether the “jury

behaved irrationally in concluding beyond a reasonable doubt” that the defendant committed the

charged crime. United States v. Miller, 982 F.3d 412, 440 (6th Cir. 2020).

18 U.S.C. § 924 (c)(1)(A) criminalizes brandishing a firearm “during and in relation to any

crime of violence[.]” The only element of this crime that Ewing contests is whether he used a real

firearm, as opposed to a fake firearm, during the bank robbery in Smyrna. It is true that a weapon

qualifies as a firearm under the statute if it is capable of “expel[ing] a projectile by the action of

an explosive” or is a “destructive device.” 18 U.S.C. § 921 (a)(3); see United States v. Sherer,

770 F.3d 407, 412 (6th Cir. 2014).

But sufficient evidence supported the jury’s finding that Ewing used such a firearm during

the bank robbery in Smyrna. Multiple witnesses at trial supported such a finding. Daniel Krouse

(“Krouse”), the assistant manager for Regions Bank in Smyrna, indicated that based on

his experience with guns and his observations of the bank robbery on April 4, 2022, Ewing “had

a gun” during the bank robbery and the “gun was real.” Trial Tr. Vol. 2-B, R. 202, Page ID

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1227-28, 1238-39. Krouse stated that one of the robbers said that “they were going to take

somebody out” if they did not get money from the vault at the bank. Id. at 1229. Krouse also

stated that, after the bank robbery, he “questioned if it’s worth going to work to lose [his] life.”

Id. at 1244. Derrick Wallace (“Wallace”), another employee at Regions Bank who witnessed

the bank robbery, indicated that Ewing was holding a “real gun” and it did not “look to be a toy

gun” because he noticed that the gun was like a “semi-automatic pistol type of gun.” Id. at 1334,

1338-39. Wallace stated that he felt his “life was in jeopardy that day.” Id. at 1343. Additionally,

McCullough also testified that she observed guns under Ewing’s couch in his apartment. Given

this evidence, and especially “viewing the evidence in the light most favorable to the government,”

Robinson, 99 F.4th at 353 (quoting Baggett, 251 F.3d at 1095), the jury did not “behave[]

irrationally” in finding that Ewing brandished a real firearm within the meaning of the statute

during the bank robbery in Smyrna. See Miller, 982 F.3d at 440.

Ewing challenges the testimony of these witnesses because “Krouse claimed experience

but that experience was not provided to the jury to properly weigh his conclusion” and “Wallace’s

belief is standing alone with no foundation at all.” Ewing Appellant’s Br. at 47. But we do not

“consider the credibility of witnesses” in reviewing the sufficiency of evidence supporting a

conviction. Robinson, 99 F.4th at 353 (quoting Jackson, 470 F.3d at 309). Ewing also highlights

United States v. Farrad, 895 F.3d 859 (6th Cir. 2018) and United States v. Crowe, 291 F.3d 884

(6th Cir. 2002), wherein this Court sustained convictions involving a firearm after the government

presented as proof different types of evidence than that used in this case. But we do not “weigh

the evidence presented,” Robinson, 99 F.4th at 353 (quoting Jackson, 470 F.3d at 309), and instead

we merely ask whether the jury in this case “behaved irrationally in concluding beyond a

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reasonable doubt” that Ewing used a firearm within the meaning of the statute during the bank

robbery. See Miller, 982 F.3d at 440. And the jury did not do so.

We thus affirm the district court’s denial of Ewing’s motion for judgment of acquittal.

III. CONCLUSION

For the reasons set forth above, this Court AFFIRMS the rulings of the district court.

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