Opinion
No. S1 03 Cr. 669 (JFK).
September 7, 2004
David N. Kelley, United States Attorney for the Southern District of New York, New York, New York, Of Counsel for the United States of America, Joan M. Loughnane, Benjamin Gruenstein, Assistant United States Attorneys.
Michael A. Young, Esq., New York, New York, for the Defendant.
OPINION and ORDER
Background
Defendant moves for an order precluding the Government from introducing evidence of other similar crimes at trial and further seeks to preclude cross-examination concerning prior criminal acts. The pertinent Federal Rules of Evidence (FRE) are 404(b) and 609.
Defendant is charged in a four-count Superseding Indictment with committing four bank robberies: (1) the robbery of a Chase Bank at 386 Park Avenue South, New York, New York, on April 15, 2003; (2) the robbery of a Chase Bank at 1411 Broadway, New York, New York, on May 5, 2003; (3) the robbery of a Citibank at 170 West 72 Street in New York, New York, on May 5, 2003; and (4) the robbery of a Chase Bank at 225 Park Avenue South in New York, New York, on May 12, 2003. At each robbery, the Government claims that the defendant robbed the bank by passing a note demanding money and indicating that he had a bomb.
The Government seeks to introduce evidence of several of defendant's prior bank robberies, where he robbed banks by claiming to have a bomb. On August 16, 1988, during his plea to consolidated Indictments 2692-88, 2693-88, and 2694-88 in Supreme Court, Queens County, the defendant stated that:
(1) on December 11, 1987, at 2:45 p.m., at 35-01 30th Avenue in Astoria, New York, the defendant entered Long Island Savings Bank, threatened to use a bomb, and took U.S. currency;
(2) on December 18, 1987, at 2:30 p.m., at the Manufacturers Hanover Trust at 29-21 Queens Boulevard in Queens, New York, the defendant threatened the teller with a gun and an alleged bomb, and took U.S. currency; and
(3) on March 23, 1988, at about 11:10 a.m., the defendant entered European-American Bank at 41-80 Main Street in Queens, New York, threatened the teller with what appeared to be a gun and claimed he had a bomb, and took U.S. currency.
In addition, on January 12, 1989, during his plea to the consolidated Indictments numbered 2707-88 and 6028-88, in Supreme Court, New York County, the defendant stated that:
(4) on January 11, 1988, at 2:45 p.m., at Manufacturers Hanover Bank in New York, New York, the defendant approached a customer services officer, stated that he had a bomb and that he wanted money from the bank;
(5) on February 1, 1988, at 11:15 a.m., the defendant approached a teller at European-American Bank in New York, New York, told her that he had a bomb and that he wanted money from the bank; and
(6) on February 29, 1988, at the National Westminster Bank in Manhattan, the defendant forcibly attempted to steal money from an employee of the bank.
(7) on February 29, 1988, at Manufacturers Hanover Bank in New York, New York, the defendant approached a customer services officer, stated that he had a bomb and that he wanted money from the bank.
In his Affirmation of August 18, 2004 in support of this motion, defense counsel states that defendant "is claiming that he did not do the acts at all." (Michael Young Aff., p. 2). Thus, the defense has placed identity in issue and, as the Government argues, it must prove the identity of the bank robber as to each of the four robberies charged.
Analysis
Evidence of other criminal activity "is not admissible to prove the character of a person" or to prove propensity but "[i]t may . . . be admissible for other purposes, such as proof of . . . identity. . . ." FRE 404(b). This has long been the rule in criminal prosecutions in the United States. It dates back to the famous New York Court of Appeals case, People v. Molineux, 168 N.Y. 264 (1901). So long as the probative value of the other evidence is not outweighed by the risk of unfair prejudice, such other evidence is permitted. FRE 403, 404(b); see Huddleston v. United States, 485 U.S. 681, 685-87 (1988).
Second Circuit cases recognize that evidence of similar prior bank robberies may be admitted to prove modus operandi or identity in a bank robbery case. United States v. Sappe, 898 F.2d 878, 879-80 (2d Cir. 1990) (evidence concerning defendant's prior bank robberies involving a toy gun hidden in newspaper admissible in bank robbery prosecution); United States v. Danzey, 594 F.2d 905, 910-11 (2d Cir. 1979) (evidence that defendant previously pleaded guilty to bank robberies in which he used similar clothing, performed similar actions inside the bank, and made a similar getaway "plainly relevant" in bank robbery prosecution).
Here, defendant is charged with robbing a series of banks, in New York City, within weeks of each other, each time threatening the use of a bomb and demanding money. Evidence that in the past he robbed other banks, in New York City, committing the robberies within weeks of each other, threatening the use of a bomb and demanding money, tends to suggest that the defendant was the person who committed the robberies charged in the Indictment. In other words, this evidence goes to the issue of identity.
Evidence of some of the earlier robberies is also admissible pursuant to Rule 403. The proffered evidence is relevant to identity. Because identity is the central issue in this case, the probative value of the evidence is high. There is no danger of unfair prejudice as to the prior robberies. They were no more "inflammatory" than the charged conduct, the standard for "unfair prejudice" that has been applied by the Second Circuit. See United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992) (Rule 403 did not preclude evidence of prior narcotics transactions that "did not involve conduct any more sensational or disturbing" than the charged crime (citation omitted)); United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (404(b) evidence not unfairly prejudicial where it "did not involve conduct any more sensational or disturbing than the crimes with which [the defendant] was charged" (citation omitted)); United States v. Vargas, 702 F. Supp. 70, 73 (S.D.N.Y. 1988) (evidence of a stabbing homicide excluded in drug case because of the "inflammatory effect on the jury").
The Government in a footnote at p. 4 of their letter submission states it "would not object to redaction of those references" to the use of a gun in the robberies I have denoted (2) and (3) above (the Queens robberies of December 18, 1987 and March 23, 1988). This is too cute by far. The gun in those two robberies makes them to a degree dissimilar and removal of the reference to the gun would distort the picture. The gun in robberies (2) and (3) was there and redacting it would tailor the case to meet the Government's theory. That is not fair.
Robberies (1) (December 11, 1987), (4) (January 11, 1988), (5) (February 1, 1988) and (7) (February 29, 1988) are admissible on the issue of identity. As noted above, robberies (2) and (3) are not admissible nor is attempted robbery (6) at the National Westminster Bank (there was no mention of a bomb in that plea allocution). The plea minutes from Queens (J. Rotker) and New York Court (J. Carey) are to be redacted so that the four admissible robberies are before the jury in proper form.
As to the FRE 609 objection, I note that Second Circuit decisions have permitted cross-examination relating to such convictions and the time frame of FRE 609(b) is complied with here because the defendant was incarcerated within the last ten years for robberies (1) through (7), supra p. 3-4. United States v. Oliver, 626 F.2d 254, 264 (2d Cir. 1980); United States v. Reed, 572 F.2d 412, 426 (2d Cir. 1978).
Robberies by their very nature involve dishonesty and thus have an impact on the integrity and credibility of a witness. The probative value of admitting any robbery conviction, or attempted robbery conviction "outweighs its prejudicial effect to the accused." FRE 609(a)(1). All of the robberies numbered (1) through (7), supra p. 3-5, clear the hurdles of FRE 609(a)(1) and (2). Inquiry concerning them may be conducted on cross-examination if the defendant chooses to testify.
A limiting instruction will be supplied to the jury both as to the FRE 404(b) evidence and the FRE 609 evidence at the appropriate time.
Other than to the degree noted above, defendant's motion is denied.
SO ORDERED.