In trial for four Minnesota bank robberies, admitting as FRE 404(b) other act evidence, proof of defendant's convictions for bank robberies in other states because the uncharged robberies provided a "unique signature" that the defendant committed the charged robberies in another state, in United States v. Young, _ F.3d _ (8th Cir. Dec. 20, 2012) (No. 11–3216)
The usual template for admission of other act evidence under FRE 404(b) assumes that the evidence the proponent urges as proof of "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident" has occurred prior to the charged crime. But this is not always the case. A recent Eighth Circuit case demonstrates how FRE 404(b) conduct that follows the charged offense has no particular difficulty in finding a place among the relevant evidence admitted at trial.
In the case, defendant Young was tried for various bank robberies -- at least four of Minnesota banks between September 2007 and April 2008, three bank robbery convictions from 2010 and his 2009, and one West Virginia bank robbery plea agreement. Evidence admitted in the South Dakota and West Virginia prosecutions were resolved before the trial of the Minnesota robberies. In the District of Minnesota trial, the prosecution presented proof that resonated with the other bankrobbery convictions, which included:
surveillance photos from each of the four [charged Minnesota] robberies. The evidence showed a white male, dressed in a plaid flannel shirt and a baseball cap, demanding money from the bank tellers. Shirts and hats found at Young's residence which matched the clothing worn by the bank robber in the surveillance photos were also admitted into evidence....Young, _ F.3d at _.
The government submitted evidence under Rule 404(b) about Young's prior criminal record. This evidence included his three South Dakota bank robbery convictions from 2010 and his 2009 guilty plea in West Virginia to one count of bank robbery. Photos from these bank robberies showed Young dressed in plaid flannel shirts and baseball caps similar to the clothing worn by the individual in the surveillance photos at the four Minnesota banks. ... The district court gave limiting instructions, stating that the evidence could only be considered if the jury “unanimously [found] it is more likely true than not true [that this evidence was "proof of Young's identity and modus operandi."] The district court gave limiting instructions, stating that the evidence could only be considered if the jury “unanimously [found] it is more likely true than not true.”Young, __ F.3d at __.
The defendant objected to admission of this evidence, contending that it was unfairly prejudicial. This had been an argument the defendant had made in his previous robbery prosecutions in South Dakota, which had been rejected by the court there as well. At the Minnesota District trial, as at those that occurred in other districts, the court readily found admission of the other robberies probative of the defendant's guilt; this evidence so striking that it suggested that the evidence provided clear proof of the defendant's identity. When the charged or convicted crimes as various locations were compared, the robberies disclosed "a unique set of ‘signature facts,’" that are generally admitted "to show that the same person committed both crimes.” Young, __ F.3d at __(citing United States v. Almendares, 397 F.3d 653, 662 (8th Cir. 2005) (citation omitted))
In reviewing the challenge to latter convictions on the Minnesota robberies, the Eighth Circuit presented an insightful discussion as to why the evidence in this case constituted a proof of the defendant's "signature":
We previously rejected Young's argument that the admission of similar Rule 404(b) evidence was an abuse of discretion in his appeal from his bank robbery convictions in South Dakota. In Young's federal trial for three counts of bank robbery in South Dakota, the district court allowed the government to introduce Rule 404(b) evidence of “photos and video surveillance ... from two Minnesota bank robberies” for which Young had been indicted but not yet convicted. The district court had given a limiting instruction that the evidence could only be used if the jury found “by the greater weight of the evidence that [Young] committed one or both of the Minnesota robberies.” We affirmed, concluding that evidence of the Minnesota robberies was conditionally relevant to prove Young's identity if “it was sufficient for a jury to find (1) that Young robbed the Minnesota banks, and (2) that the same person robbed the Minnesota and South Dakota banks.” Sufficient evidence supported such a finding because the robber in both the Minnesota and South Dakota bank robbers had a “signature feature” of wearing similar clothes during each crime. It was “almost ... beyond a reasonable doubt that the person who robbed the two Minnesota banks appear [ed] to be the same person who robbed the three South Dakota banks.”Young, __ F.3d at __ (quoting United States v. Young, 644 F.3d 757, 759–61 (8th Cir. 2011)).
The government's Rule 404(b) evidence in this case similarly showed Young wearing a plaid flannel shirt and baseball cap when he robbed banks in South Dakota and West Virginia. The bank robber in each state wore the same type of shirt and baseball hat, thus displaying the same “signature feature” in committing the crimes. The district court properly gave a limiting instruction to the Minnesota jury that it was only to consider the Rule 404(b) evidence from the South Dakota and West Virginia crimes if it “unanimously [found] it is more likely true than not true.” We conclude that the district court did not abuse its discretion in admitting evidence of Young's bank robberies in the other two states as proof of the Minnesota bank robber's identity and modus operandi.
While not directly addressed by the court in Young, it appears there should be something about the way the crime was committed elsewhere that the defendant would be the only person. While that "something" may be a combination of factors, it all adds up to perpetrator of the crime most likely being the defendant. In other cases, the Eighth Circuit had described this relation between the factors and the defendant as "unique." See United States v. Fawbush, 634 F.3d 420, 421-22 (8th Cir. 2011).
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