United States v. Danzey
594 F.2d 905 (2d Cir.), cert. denied, 441 U.S. 951 (1979)

OAKES, J....

The Community National Bank and Trust Co. is located at the corner of Clove Road and Niagara Street in Staten Island, New York. At about 9:30a.m. on July 30, 1977, a young woman who was sitting in a car outside the bank waiting for her sister to transact business inside observed two men wearing ski masks and gloves getting out of a white car with a black vinyl top bearing New Jersey license plates. One man carried a bag and a gun while the other, who was "slumped over," wore sneakers and carried a bag. A third man sat in the driver's seat. The two masked men walked into the bank, remained inside about three minutes, rushed out, and re-entered the white car which then sped away from the bank. The young woman's sister, who was in the bank, was ordered to the floor several times by the shorter of the two men from whose voice she concluded that he was black; the man ultimately knocked her to her knees. She also observed the second masked man, the taller of the two, run into the bank, "hunched over like a monkey or an ape," vault the teller's counter carrying a bag, take the entire money trays from two of the tellers, and stuff the booty into a canvas bag. He revaulted the teller's counter and left with the shorter man. None of the bank employees or the two sisters could identify anyone as the bank robbers.

However, another young woman, Sylvia Csuros, a nineteen-year-old college student, had been studying in her mother's bedroom in their second floor apartment located only about two blocks from the bank. The corner apartment overlooked Grand and Dudley Avenues, quiet residential streets in Staten Island. Shortly after 9:00a.m. on July 30, 1977, a bright and sunny morning, from a window facing Grand Avenue Csuros saw a large gold car followed closely by a smaller white car speed down Grand Avenue and turn right onto Dudley. She left her mother's bedroom and went into the living room which faced both Grand and Dudley Avenues and with her view unobstructed observed the gold car park across the narrow street below the living room window and the white car park directly behind the gold car. She then saw a man emerge from the street side of the gold car carrying a brown paper bag. She watched him walk in the street back to the white car and either toss or pass the brown bag into the front seat of the white car, then return to the gold car. She then saw a taller man exit from the driver's side of the gold car. She described him as black and tall and said that he wore a wig, a bright orange shirt, and elevated shoes. The man walked along the sidewalk to the white car and got into the front seat of the white car on the driver's side, causing the original driver, whom Ms. Csuros never saw, to slide over to the passenger side. Ms. Csuros then saw the first man, who had tossed the brown bag into the front seat of the white car, return from the gold car to the white car and enter it by the rear door. The white car drove off, shortly after returned, and the occupants transferred back to the gold car and drove off at a high rate of speed....

Appellant Gore's only argument is that the Government's introduction into evidence of his admissions of fifteen similar criminal acts, consisting of other bank robberies, was highly prejudicial and deprived him of a fair trial. This evidence was admitted under Fed. R. Evid. 404(b) to show identity. The trial court found on the basis of the Government's offer of proof that appellant Gore's similar crimes had such a distinctive modus operandi that the evidence could be so admitted.

Appellant Gore's contention that the evidence was more prejudicial than it was probative borders on the frivolous. Appellant concedes, as he must, that the evidence was relevant. By Gore's own statements he had a modus operandi, practically a signature, to his robberies: according to the testimony at trial of the FBI agent to whom appellant made the statements, "He said that he had a certain trademark in robbing a bank." Cars would be stolen for a bank robbery late the night before or early on the morning of the robbery. If the "getaway" car was dark, the "switch" car would be light and vice versa. The cars would be early 1970's Fords, the easiest to steal. They would be stolen by pulling out the ignition with a "dent puller." The getaway car, used at the bank, was always a stolen car, while the switch car was sometimes legitimate. The robberies occurred early in the morning between 9:00 and 11:00. Gore said that he always wore a ski mask, gloves, and two sets of clothes, one of which he would remove after leaving the bank. Three or four men were always involved in the robbery. Gore himself would run into the bank in a crouched position carrying a paper, plastic, or canvas bag; vault over the counter; remove the entire teller tray along with the money; and put the trays and the money into his bag. One accomplice would be the getaway driver outside; another would stand near the door, brandish a gun or a sawed-off shotgun (at his preference), and order everyone in the bank to lie on the floor. Some of his robberies included a second vaulter, that is to say, a fourth accomplice, although only three were involved in the robbery of the Community National Bank. After taking the teller trays, Gore would vault back over the counter and run from the bank, again in a crouched position. The robbers would drive from the bank a few blocks to where they had previously left the switch car. There they would abandon the getaway car, drive in the switch car to another area, abandon that car, and then split up.

This evidence was so plainly relevant as to be classic similar act evidence admissible under the rule and under our cases to show a modus operandi.... But appellant Gore argues that, even though the evidence was relevant, the trial court was required to weigh against the probative value of the evidence the possibility of unfair prejudice. Fed. R. Evid. 403. He also objects because the trial court ruled that it would admit the evidence at the very beginning of the trial, before any witnesses had testified. He directs our attention to the cautionary dictum of United States v. Leonard, 524 F.2d 1076, 1092 (2d Cir. 1975), cert. denied, 425 U.S. 958 (1976), that it is usually preferable for the trial court to await the conclusion of the defendant's case before admitting similar act evidence.... The rationale for this limitation is that the court will best be able to judge the prosecutor's need for the evidence after the defense; at that time the court may best weigh the probative value of the evidence against its prejudicial effect. Here, however, it was abundantly clear to the trial judge before the case began that the only major issue was the identity of the robbers, that is, did Gore and/or Danzey commit this robbery. There was no way for Gore to remove the identity issue from the case short of Gore's admitting his participation in the robbery and claiming some other defense such as duress.

Were the Leonard dictum applicable, however, the Government would have had no case. Unless this evidence were admissible during the Government's case, the Government might well be without any proof whatsoever of identity, a crucial issue. It was the only proof, and it was surely highly relevant proof, to take the case to the jury since the only other evidence linking Gore to the crime was a fingerprint on a paper bag found in the getaway car, allegedly used to carry money taken in the robbery. Thus in this case, because the defense rested without putting on a case, the evidence of Gore's other crimes, if it could only have been admitted at the close of the defense case, would never have been admitted; the case would have ended with the doing of the act and the defendant's responsibility for it unproven.

Does this mean that we must reject that dictum or that the evidence was inadmissible? We think not, and we believe that we can demonstrate this if we elaborate upon the distinction between admitting similar acts to show intent on the one hand and to show design, system, or plan on the other. Our cases have not expressly made this distinction, one made by the leading text-writers. Wigmore's treatise points out that similar acts are admitted to prove intent on the basis that from the point of view of the doctrine of chances, the element of innocence is eliminated by multiplying instances of the same result. That is to say, "similar results do not usually occur through abnormal causes"; and the recurrence of a similar result in the form of an unlawful act tends to negative accident, inadvertence, duress, good faith, self-defense, or other innocent mental state and tends to establish to at least some extent the presence of criminal intent. The act itself is assumed to be done, either because the defendant has conceded doing the act or because the court instructs the jury not to consider the evidence until they find that the defendant did the act and they proceed to determine intent. See generally 2 J. Wigmore, Evidence 302, at 196-201 (3d ed. 1940).

When, however, the very doing of the act charged is still to be proved, one of the evidentiary facts receivable is the person's design, system, or plan to do it as demonstrated by his having committed other acts almost identical to the act charged. See 1 id. 102; 2 id. 304. See also 2 Weinstein's Evidence 404[09], at 404-57 to 66. By "a concurrence of common features ... the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." 2 Wigmore, supra, 304, at 202 (emphasis omitted). In this case, for example, there is such a high degree of similarity between the bank robberies admitted to and this one that the other crimes lead to the logical inference, by virtue of the combination of common features, that a common plan or design was at the basis for all the robberies and hence that it was appellant Gore who committed this robbery.

Drawing the distinction that Wigmore and McCormick ... draw helps explain why the government should ordinarily be permitted to introduce similar act evidence in its case-in-chief if the evidence is relevant to identity (used as a shorthand for referring to proof of the doing of the criminal act by this defendant), but not, see Leonard, supra, if the evidence is relevant merely to intent. At a minimum, the Government must prove that this defendant committed the crime for which he is on trial, so that identity evidence may properly constitute part of its case-in-chief even if there will be a defense case.

Proof of intent on the other hand may be inferable from the act itself. In such case, unless the defense specifically raises lack of intent as a defense, the prejudice to the defendant of evidence of similar acts may outweigh its probative value. And even where the crime requires specific criminal intent not readily inferable, the defendant might not raise lack of intent as a defense, or he might stipulate to the existence of intent if the jury finds the other elements of the offense.

Thus, to sum up, where, as here, similar acts are offered to prove design, from which the jury could infer that appellant Gore committed the particular bank robbery in question, the Leonard dictum as to awaiting the conclusion of the defense case is inapplicable.

Of course this evidence is prejudicial--it is highly prejudicial because it both tends to prove the commission of the criminal act in issue, as well as to show the defendant's bad, or criminal, character. But common design evidence is always highly prejudicial. The undue prejudice it engenders may be guarded against in only one way: by an instruction--as was given here--to the effect that the jury is not to consider the evidence as going to the character of the accused but only as going to identity. It may well be that the jury cannot make this distinction in its collective mind. If that is so it is unfortunate, but it happens all the time--critical evidence may well be prejudicial, but it is admitted because it is so clearly relevant and so highly critical: Lady MacBeth's "damned spot" would have been admissible....

Do you agree that the defendant's modus operandi was a sufficiently distinctive method of withdrawing money from a bank without having made a deposit as to rise to a level of "signature quality" identity evidence?

In fact, the defendant's M.O. was not particularly distinctive. A quite typical bank robbery involves set roles and moves for the various participants: A "wheelman" drives the car, a "swingman" swings the gun around from side to side inside the bank to keep patrons and employees on the floor, and a "vaulter" jumps the counter and grabs the money. All will be masked and gloved during the robbery. In preparation for the robbery two cars are stolen that differ in appearance, one to be the "getaway" car, the other to be the "switch" car.

The only distinctive feature of this defendant's style seems to be his ape-like hunching over. Is this good enough? Who decides?

An interesting variation on this problem occurs when a defendant attempts to introduce evidence of other similar crimes by someone else to prove that the case on trial is a case of mistaken identity. The Colorado Supreme Court has adopted the position that similar offense evidence when introduced by the defendant is subject to a case-by-case test of admissibility. People v. Flowers, 644 P.2d 917 (Colo. 1981). In Flowers, defendant was convicted of first-degree sexual assault and sought to introduce evidence of nine other sexual assaults in the same locality within five months of his alleged assault. The defendant wanted to offer testimony from detectives that each of the victims was unable to identify the defendant from a line-up as her assailant and to call a forensic serologist to testify that seminal fluid recovered from one of the sexual assault victims excluded the defendant as the assailant. The court upheld the district court's determination that the details of the other crimes were not distinctive enough to represent the "signature" of a single individual but were features common to most sexual assaults.

It is interesting to note the nonsymmetrical application of the Rule 403/404 two-step approach. For example, in Flowers if the semen had matched and the defendant had been positively identified for one of the prior neighborhood assault cases, such evidence would probably have been admitted.

If the two-step approach is to be applied nonsymmetrically when evidence of other crimes is offered exculpatorily by the defendant, which way should the scales of admissibility tilt?


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