Prior Bank Robbery Was Not Habit Evidence Under FRE 406

Fifth Circuit rejects defense claim that evidence of an accomplice's prior bank robbery could be admitted as habit evidence under FRE 406; the defense failed to show the sole bank robbery was part of a "regular practice"; alternatively, the prior incident could not support the defense theory of the defendant's good faith and lack of intent without a showing that it supported "his state of mind at the time of the offense," in United States v. Anderson, _ F.3d _ (5th Cir. June 20, 2014) (No. 12-10979)

FRE 406 provides that "[e]vidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness." In a recent bank robbery prosecution, the defense sought to use this rule to admit evidence that an accomplice had a habit of committing bank robberies.

Trial Court Proceedings: Offering Habit Evidence To Support A Lack Of Criminal Intent

Defendant Anderson was charged with co-defendant Butler with aiding and abetting a bank robbery of Chase Bank. Anderson proceeded to trial alone. As part of his defense, he claimed that he lacked intent to commit the bank robbery. In support, he offered evidence of habit that "Butler, without Anderson’s assistance, executed" a separate robbery of Bank of America "in the same exact fashion in which he executed the bank robbery at issue in this case. According to Anderson, "he, in good faith, gave Butler a ride without any knowledge of Butler’s proclivity toward robbing banks and without knowledge of Butler’s intent to commit a bank robbery...." The trial court granted the government's motion in limine to exclude this evidence as irrelevant. The jury convicted the defendant. On appeal, he challenged the exclusion of this evidence.

Fifth Circuit Review: No Showing Of "Regular Practice"

The Fifth Circuit readily affirmed the trial court's exclusion of the proffered evidence. First, the circuit held that the "evidence does not meet the threshold requirements for habit evidence under FRE 406 because there was no evidence that robbing banks alone was Butler’s 'regular practice.'" As the circuit explained, "The fact that Butler committed one prior bank robbery alone does not demonstrate that on January 18, 2012, he acted in conformity with a habit of committing bank robberies alone." Anderson, _ F.3d at _ (citing United States v. Heard, 709 F.3d 413, 434 (5th Cir. 2013) (“Habit suggests a regular response to a repeated specific situation that has become semi-automatic.”) (citation and internal quotations omitted)).

The circuit recast the issue presented by the defense:

Anderson’s assertion that he acted with "good faith and lack of knowledge" is more appropriately characterized as his defense theory as opposed to an affirmative defense. While Anderson is permitted to submit evidence to the jury to support his defense theory, he is not permitted to submit evidence that is irrelevant to the issues at trial.... Anderson’s defense theory of “good faith and lack of knowledge” focused on his state of mind at the time of the offense. Butler’s prior bank robbery—which Anderson does not claim to have been aware of at the time of the instant offense—is not relevant to Anderson’s state of mind. Anderson cites no case law supporting the proposition that he was entitled to present evidence showing that Butler, on one prior occasion, committed a bank robbery without his assistance.

Anderson, _ F.3d at _.

Conclusion

The Anderson case illustrates two points. First, habit evidence requires a showing of "regular practice." One prior incident (here a bank robbery) failed this standard. Second, while the defendant could offer evidence of his good faith and lack of intent, the prior bank robbery was irrelevant without a showing that it supported "his state of mind at the time of the offense."

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