USA v. Mark Howell Sparks

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 8, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-15281
Non-Argument Calendar
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D.C. Docket No. 4:10-cr-00010-HLM-WEJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK HOWELL SPARKS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(September 8, 2011)
Before EDMONDSON, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
After a jury trial, Mark Sparks appeals his convictions for trafficking in
motor vehicles with altered vehicle identification numbers (“VIN”), in violation of

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18 U.S.C. § 2321, tampering with an informant, in violation of 18 U.S.C.
§ 1512(b)(3), and obstruction of justice, in violation of 18 U.S.C. § 1505. After
review, we affirm.
I. WITNESS SOUDER’S TESTIMONY AT TRIAL
On appeal, Sparks argues that the district court abused its discretion in
admitting the testimony of Jason Souder that he stole vehicles for Sparks and
delivered them to Sparks at various locations, knowing Sparks was going to alter
the VIN numbers and resell the vehicles. Sparks contends Souder’s testimony was
inadmissible under Federal Rules of Evidence 404(b) and 403 as unduly
prejudicial evidence of other crimes.
Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts” is
inadmissible to show the defendant’s bad character, but may be admitted for other
purposes. Fed. R. Evid. 404(b). However, “evidence of criminal activity other
than the charged offense is not extrinsic under Rule 404(b) if it is (1) an uncharged
offense which arose out of the same transaction or series of transactions as the
charged offense, (2) necessary to complete the story of the crime, or (3)
inextricably intertwined with the evidence regarding the charged offense.” United
States v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004) (quotation marks and
brackets omitted). “In such a situation, because the evidence is intrinsic, not
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extrinsic, we do not engage in a Rule 404(b) analysis. United States v. Church,
955 F.2d 688, 700 (11th Cir. 1992). Rather, this evidence is properly admitted if it
is “linked in time and circumstances with the charged crime, or forms an integral
and natural part of an account of the crime, or is necessary to complete the story of
the crime for the jury,” United States v. Williford, 764 F.2d 1493, 1499 (11th Cir.
1985), and passes the Rule 403 balancing test, which provides that even intrinsic
evidence “may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice.” Fed. R. Evid. 403.1
Here, we find no abuse of discretion. The district court denied Sparks’s
motion in limine and admitted Souder’s testimony as intrinsic evidence relating to
Count One of Sparks’s indictment, which charged Sparks with operating a chop
shop. The district court stated:
[T]he specific thing that [Souder] testified was that he stole four
vehicles on the same day and delivered them to an uncle’s property at
Felton and he got paid for them, three specifically, he got paid for them
shortly before he went to jail in December of 2005. It’s clear that this
is not 404(b) evidence. All of this is evidence that is relevant to the
chop-shop charge in Count One of the indictment, so I’ll overrule your
motion.
We review the district court’s ruling on the admissibility of evidence for abuse of1
discretion. United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005).
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The statutory definition of a chop shop requires the receipt of unlawfully obtained
vehicles to alter or remove their identities, including VINs, and then sell or
distribute the vehicles. See 18 U.S.C. § 2322(b). Souder’s testimony went2
directly to the element of whether Sparks received stolen cars and altered or
removed VINs from those stolen vehicles after receiving them, both elements of
the chop shop charge. Souder’s testimony was thus relevant to two elements of a
charged offense.
Even if the evidence were not intrinsic evidence, it would not have been
excluded under Rule 404(b). Souder’s testimony was evidence of an uncharged
offense arising out of the same series of transactions as a charged offense (the
chop shop charge) and was inextricably intertwined with the evidence of that
charged offense.
Furthermore, Sparks has failed to show how the risk of unfair prejudice
from Souder’s testimony substantially outweighed its probative value. Sparks
Specifically, a “chop shop” is defined as:2
any building, lot, facility, or other structure or premise where one or more persons
engage in receiving, concealing, destroying, disassembling, dismantling,
reassembling, or storing any passenger motor vehicle or passenger motor vehicle part
which has been unlawfully obtained in order to alter . . . or remove the identity,
including the vehicle identification number or derivative thereof, of such vehicle or
vehicle part and to distribute, sell, or dispose of such vehicle or vehicle part in
interstate or foreign commerce.
18 U.S.C. § 2322(b).
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argues that the evidence lacked probative value because (1) the events Souder
testified about were too remote to the charged offense, and (2) Souder was not a
credible witness.
Count One charged Sparks with operating a chop shop beginning on an
unknown date and continuing until October 7, 2009. Souder testified that he had
stolen numerous vehicles at Sparks’s request. The earliest date Souder gave was
2000, when he said he delivered a stolen truck to Sparks and stayed to help Sparks
remove the windshield and the VIN. Souder claimed to have stolen 10 to 15
trucks for Sparks in 2005, including the last, before Souder was incarcerated in
December. Thus, the events Souder described occurred contemporaneously with
the charged chop shop offense. Furthermore, the jury was entitled to believe
Souder despite potential problems with his credibility, and Souder’s testimony, if
credited (which it appears it was not), would have been highly probative of
whether, during the charged period, Sparks had received stolen vehicles from
Souder to alter or remove their VINs and then sell them. Therefore, the admission
of Souder’s testimony as intrinsic evidence was not an abuse of discretion and thus
not error.
II. HARMLESS ERROR
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Finally, even assuming arguendo that the admission of Souder’s testimony
was error, that error was harmless. Even if evidence was admitted in error, that
error will be disregarded where the error was harmless. See Fed. R. Crim. P. 52(a)
(providing that any error “that does not affect substantial rights must be
disregarded”). An error is harmless “if there is no reasonable probability that the
evidence complained of might have contributed to the conviction.” United States
v. Turner, 871 F.2d 1574, 1581-82 (11th Cir. 1989) (quotation marks omitted). A
split verdict shows that a jury properly considered evidence and was not confused
or improperly influenced by Rule 404(b) evidence. United States v. McNair, 605
F.3d 1152, 1205 (11th Cir. 2010), cert. denied, 131 S. Ct. 1600 (2011). The
government must carry the burden of showing that any error was harmless. United
States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
In this case, Souder’s testimony related to Count One, the chop shop charge,
on which the jury returned a verdict of not guilty. Souder had no knowledge of
the relevant events relating to the trafficking offense (Count Two) and gave no
testimony concerning the tampering and obstruction offenses (Counts Five and
Six), the three counts for which the jury found Sparks guilty. The jury’s split3
Counts Two, Five and Six, upon which Sparks was convicted, arose out of Sparks’s3
involvement with a man named Robert Cates. Sparks confessed to investigators that he
purchased a stolen pewter-colored Chevrolet pickup truck from Cates, removed the VIN from
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verdict tends to show the jury properly considered all the evidence. And, there is
no indication that Souder’s testimony, even if admitted in error as to Count One,
had any effect on the guilty verdicts in Counts Two, Five and Six.
AFFIRMED.
another totaled truck and affixed it to the stolen pewter-colored truck. Then, according to the
government’s evidence, Sparks, who was a local police officer, repeatedly tipped Cates off
during the investigation, told Cates to lie to investigators and warned others who had bought
stolen vehicles from Cates to get rid of them. Souder testified that he did not even know Cates.
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