Seventh Circuit On Insufficiency Of Showing That A FRE 404(b) "Other Act" Occurred

In bank robbery trial, testimony about the defendant’s participation in three prior uncharged crimes, which were admitted to counter the defendant’s claim of innocent participation, was erroneous because the cooperating co-conspirators testifying about the alleged prior acts could not specify the exact locations or dates of the defendant's prior crimes, leaving less than a preponderance of the evidence to support a finding that defendant engaged in the prior acts to be admitted under FRE 404(b), in United States v. Reyes, 542 F.3d 588, (7th Cir. Sept. 5, 2008)

The threshold to satisfy whether there is sufficient evidence “to support a jury finding that the defendant committed the similar act” under FRE 404(b) is rather modest. There are few cases in which this foundational element is not satisfied. Often courts will admit even uncorroborated co-conspirator testimony to satisfy this element. See, e.g., United States v. Ross, 510 F.3d 703, 713 (7th Cir. 2007) (in prosecution for robbing a postal truck, evidence concerning two prior conspiracies to rob the post office six and five years earlier was admissible under FRE 404(b); there was a sufficient basis to support a jury finding that the defendant committed the prior acts based on the testimony of a co-conspirator).

A year after the Ross case, the Seventh Circuit provided an example on the other side of the sufficiency issue. In this case, the offeror of other act evidence made an insufficient showing of the occurrence of the other act so that it should not have been admitted in the first place.

In the case, Defendant Reyes was charged with conspiring with others to rob banks. At trial, the prosecutor had the cooperating co-conspirators testify against the defendant that he had provided them with information regarding the security arrangements at some of the banks which the conspirators robbed. They alleged he provided useful information, such as floor plans, location of access devices, and workers expected to be at the bank at the time the conspiracy planned their intrusion. The defendant was convicted but he appealed. He contended that the trial judge erred by admitting the other act evidence of the defendant's prior crimes.

The defense strategy at trial was not to deny the cooperating co-conspirator's stories of his other acts to rob banks. Instead, the defense theory at trial was that the defendant “innocently disclosed certain information which made the [charged] bank robberies feasible or possible.” Reyes, 542 F.3d 592. The trial judge admitted the testimony of a cooperating co-conspirator that he had participated in two prior robberies with the defendant and a second cooperating co-conspirator testified about the defendant’s role in a third prior robbery. The trial judge concluded that the prior act evidence “was relevant to whether Reyes unwittingly provided … information to the co-defendants, in essence describing the nature and strength of the alleged conspiracy.” Reyes, 542 F.3d 592.

The circuit agreed with the defendant that admission of the cooperating co-conspirator testimony regarding the defendant’s role in the three prior uncharged bank robberies was in error. However, this error was harmless. On the four-part test applied to admit evidence under FRE 404(b) in the Seventh Circuit, the circuit focused on the third foundational element: whether “the evidence is sufficient to support a jury finding that the defendant committed the similar act.” According to the circuit:

We have held that the “preponderance” standard is appropriate for determining the admissibility of prior acts evidence. Even by this standard, the evidence of the prior robberies lacks the requisite factual support; the support that [cooperating co-defendants] Torres and DeJesus do provide is inconsistent and contradictory. Torres could not identify in which of two Chicago suburbs his robbery took place and could only put the time of the robbery within a year. DeJesus could not even identify the year when either of his two robberies took place; as for the location, the only affirmative details he gave were that one occurred in a house and another in a bowling alley. There was no corroborating evidence to support these allegations of the witnesses.
Keyes, 542 F.3d 592-93 (citing United States v. Burke, 425 F.3d 400, 410 (7th Cir. 2005) (citing Huddleston v. United States, 485 U.S. 681, 690 (1988))


Applying the preponderance standard of proof, the circuit concluded that on the third FRE 404(b) foundational evidence, “the evidence of the prior robberies lacked the requisite factual support” and that the co-conspirators testifying on the prior acts were “inconsistent and contradictory” in their testimony on the alleged prior acts. The foundation having not been shown by the prosecution, the circuit did not need to examine the other three elements to be considered for admission of FRE 404(b) evidence. Reyes, 542 F.3d 592-93 (In the Seventh Circuit, four conditions must be met to allow the introduction of other bad acts evidence: (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.)

This error in admitting the prior act evidence was harmless. The circuit found that the prosecution “presented enough evidence at trial to satisfy any concern that the error swayed the jury.” Reyes, 542 F.3d 593. This other, non-FRE 404(b) evidence included the co-conspirators’ testimony that the defendant a played key role in organizing and planning the conspiracy’s charged bank robbery, the defendant knowledge about the bank’s security system and the location of safes, and the defendant’s recommendation about the ideal time to commit the robbery. In addition, the prosecutor did not discuss the prior act evidence in its final argument or in its rebuttal argument. Finally, the trial court gave the jury a limiting instruction concerning the admission of the evidence. All of these factors satisfied the circuit that “the error did not improperly influence the jury.” Reyes, 542 F.3d 593.

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