U.S. v. Carroll

• Decision Date: 11 January 2000
• Docket Number: No. 99-2940,99-2940
• Citation: 207 F.3d 465
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA, APPELLEE, v. GERALD R. CARROLL, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 465

207 F.3d 465 (8th Cir. 2000)

UNITED STATES OF AMERICA, APPELLEE, v. GERALD R. CARROLL, APPELLANT.

No. 99-2940

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: January 11, 2000

Decided: March 15, 2000

Appeal from the United States District Court for the Eastern District of Missouri. [Copyrighted Material Omitted] Before Bowman and Loken, Circuit Judges, and Alsop,¹ District Judge.

Bowman, Circuit Judge.

Gerald Carroll was convicted by a jury of armed robbery of a federally insured credit union and a related firearms charge, and was sentenced by the District Court to life in prison plus twenty years. He appeals on three grounds. Carroll argues that evidence of a prior conviction was improperly admitted, that certain post-arrest statements were wrongly introduced into evidence, and that the law requiring his lengthy sentence is unconstitutional. The latter two contentions are meritless. While Carroll's prior conviction was erroneously admitted, that error was harmless, and we accordingly affirm his conviction and sentence.

I.

Carroll has been convicted of armed robbery previously. In 1988, he robbed a bank using a firearm. He pleaded guilty in 1989 and was sentenced to a substantial prison term. He entered supervised release on September 6, 1996. On July 30, 1998, Carroll and an accomplice, Kevin Carroll, robbed the St. Louis Community Credit Union, the crime at issue in this appeal. During Gerald Carroll's trial, the United States sought to introduce evidence of his prior conviction under Federal Rule of Evidence 404(b), which prohibits the admission of evidence of "other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." But such evidence is admissible "for other purposes," including "plan, knowledge, [or] identity." Id. Like all other evidence, evidence admissible under Rule 404(b) is still subject to analysis under Rule 403, which allows admission unless the evidence's unfair prejudice substantially outweighs its probative value. See United States v. LeCompte 99 F.3d 274, 277 (8th Cir. 1996). Over objection, the District Court determined that the evidence of Carroll's prior conviction was "admissible for purposes of showing a plan or pattern . . . a melding basically of that, plus identity." 1 Trial Tr. at 4. The District Court instructed the jury that it could use the Rule 404(b) evidence "to help [it] decide whether the similarity between the acts previously committed and the ones charged in this case suggest that the same person committed all of them." 3-B Trial Tr. at 9. We review for abuse of discretion. See LeCompte, 99 F.3d at 277.

The case law discusses two circumstances in which prior bad acts can be used to show a "plan or pattern." In some circumstances, a defendant's prior bad acts are part of a broader plan or scheme relevant to the charged offense. "For example, when a criminal steals a car to use it in a robbery, the automobile theft can be proved in a prosecution for the robbery." 1 McCormick on Evidence § 190, at 660-61 (John W. Strong ed., 5th ed. 1999). If the evidence merely shows the full context of the charged crime, it is "intrinsic evidence" not governed by Rule 404(b). See United States v. Rolett, 151 F.3d 787, 790 (8th Cir. 1998). Evidence of past acts may also be admitted under Rule 404(b) as direct proof of a charged crime that includes a plan or scheme element, or evidence might serve both intrinsic and direct-proof purposes. See id. at 790-91. In other circumstances, where the "pattern and characteristics of the crimes [are] so unusual and distinctive as to be like a signature," 1 McCormick on Evidence § 190, at 663, evidence of a defendant's prior crimes is admissible to prove that it was indeed the defendant that committed the charged crime. In these cases, the evidence goes to identity. See, e.g., United States v. McQuiston, 998 F.2d 627, 629 (8th Cir. 1993). These "plan" and "identity" uses of Rule 404(b) evidence are distinct from each other and from use of prior acts to show knowledge and intent. In drug distribution cases, for example, knowledge and intent are often contested facts proven in part through prior bad acts. See United States v. Drew, 894 F.2d 965, 970 (8th Cir. 1990).

We reject the theory that Carroll's ten-year-old conviction was admissible as part of a broad criminal undertaking including both the prior offense and the charged offense. "The victims were different, and the events were far apart in time. Absent more specific linkage, such evidence is relevant to 'plan' or 'preparation' only insofar as it tends to prove a propensity to commit crimes, which Rule 404(b) prohibits." LeCompte, 99 F.3d at 278. The fact that Carroll was incarcerated in the interim period only reinforces the conclusion that the events are not part of the same criminal undertaking. Cf. U.S. Sentencing Guidelines Manual § 4A1.2 commentary (n.1) (1998) (requiring sentencing courts to treat crimes as unrelated when separated by intervening arrest).

The District Court's jury instruction demonstrates that the evidence was admitted to show identity. If the conduct underlying Carroll's prior conviction and his current charged offense both involved a unique set of "signature facts," then his prior conviction would be admissible to show that the same person committed both crimes. See LeCompte, 99 F.3d at 278; Drew, 894 F.2d at 970. But unless the robberies are "sufficiently idiosyncratic" to make them "clearly distinctive from the thousands of other bank robberies committed each year," evidence of the prior crime is "nothing more than the character evidence that Rule 404(b) prohibits." United States v. Smith, 103 F.3d 600, 603 (7th Cir. 1996); accord LeCompte, 99 F.3d at 279 (determining that prior crimes "reflect[ed] misconduct common to all too many child sex offenders" and therefore evidence of past crimes was inadmissible); 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 404.22[5][c], at 404-119 (Joseph M. McLaughlin ed., 2nd ed. 1999) (noting that where alleged modus operandi is really just "garden variety criminal act" any inference of identification would be based on "forbidden inference of propensity").

In sum, in order to admit Rule 404(b) identity evidence on the signature facts or modus operandi theory, the District Court must make a threshold determination that, based solely on the evidence comparing the past acts and the charged offense, a reasonable juror could conclude that the same person committed both crimes.² Two factors are relevant in analyzing the question. The first is the distinctiveness of the facts that make the crimes unique and the second is the proximity of the crimes in space and time. See LeCompte, 99 F.3d at 278-29; see also, e.g., United States v. Guerrero, 169 F.3d 933, 939 (5th Cir. 1999); United States v. Robinson, 161 F.3d 463, 467 (7th Cir. 1998), cert. denied, 119 S. Ct. 1482 (1999). After reviewing the evidence in this case, we believe that the prior bank robbery and the credit union robbery charged here are too generic and remote from one another to permit a reasonable inference of identity.

First, the characteristics shared by the two robberies are too common to form a modus operandi that uniquely identifies Carroll as the perpetrator. All the United States can argue is that, in both crimes, the perpetrator wore a nylon stocking mask, carried a gun, and vaulted over the counter to put the bank's money in a bag.

We must initially determine the frame of reference against which to measure the uniqueness of the crimes. As the question of how often a particular crime is committed in a particular way is ultimately factual, it might be appropriate, in some cases, for the District Court to take evidence on the matter in, for example, deciding a motion in limine. In other cases, the modus operandi or other characteristics of the prior crime and the crime currently charged may be so distinctive as to self-evidently permit a reasonable inference of identity between the perpetrator of the first and the perpetrator of the second. In the present case, we simply use a set of data readily before us. Based merely on the descriptions of bank robberies available in the published federal appellate reporters, which are incomplete in detail and refer only to a subset of all bank robberies committed, it is amply clear that the signature facts relied upon by the government in this case occur frequently, even in combination. See, e.g., McLaughlin v. United States, 476 U.S. 16, 16 (1986) (bank robber in stocking mask with gun and bag vaulted over counter); United States v. Luna, 21 F.3d 874, 875-76 (9th Cir. 1994) (same); United States v. Thornbrugh, 962 F.2d 1438, 1440 (10th Cir. 1992) (same) (irrelevant subsequent history omitted); United States v. Donahue, 948 F.2d 438, 440 (8th Cir. 1991) (same), cert. denied, 503 U.S. 976 (1992); United States v. Maguire, 918 F.2d 254, 256 (1st Cir.1990) (same). The bank robbery cases finding signature facts have reported much less common features, such as distinguishing costumes or equipment, see, e.g., Robinson, 161 F.3d at 468 (orange ski mask and "distinctive" duffel bag), unusual methods, see, e.g., United States v. Moore, 115 F.3d 1348, 1355 (7th Cir. 1997) (robbers entered bank thirty to sixty minutes before robbery and politely asked for a job application or directions), or distinctive use of a weapon, see, e.g., Smith, 103 F.3d at 603 (robbers brandished knives and held them vertically during robbery).

Further, examination of the closeness of the robberies, geographically and in time, supports the conclusion that the crimes are not sufficiently related to allow an inference of identity. The two financial institutions here, while not in the same neighborhood, are both in the St. Louis area, relatively close to each other. But the crimes occurred ten years apart. This is not a case, as in Robinson, ...