U.S. v. Hudson

• Decision Date: 11 April 1988
• Docket Number: 87-2053,Nos. 87-1869,s. 87-1869
• Parties: 25 Fed. R. Evid. Serv. 839 UNITED STATES of America, Plaintiff-Appellee, v. Leon HUDSON & Reginald Smith, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1062

843 F.2d 1062

25 Fed. R. Evid. Serv. 839

UNITED STATES of America, Plaintiff-Appellee, v. Leon HUDSON & Reginald Smith, Defendants-Appellants.

Nos. 87-1869, 87-2053.

United States Court of Appeals Seventh Circuit.

Argued Feb. 9, 1988.

Decided April 11, 1988.

Robert C. Crawford, Michael L. Chernin, Milwaukee, Wis., for defendants-appellants.

Elsa C. Lamelas, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before BAUER, Chief Judge, WOOD, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

Leon Hudson and Reginald Smith appeal from their convictions for entering a federally-insured credit union with the intent to commit a larceny, in violation of 18 U.S.C. Sec. 2113 (a) and 18 U.S.C. Sec. 2. The crime took place on November 19, 1986 at the Eaton Employees Credit Union in Milwaukee, Wisconsin.

I

The focus of appellants' argument is their claim that the district court improperly failed to exclude from the trial record, pursuant to Fed.R.Evid. 404 (b), evidence pertaining to three larcenies of savings and loans institutions that they are alleged to have committed. ¹ The first occurred on October 11, 1985 at the Security Savings and Loan Association in Milwaukee, Wisconsin; the second on November 1, 1985 at the Midwest Savings and Loan Association in Bismarck, North Dakota; and the third on December 2, 1986 at the Mutual Savings and Loan Association in Milwaukee, Wisconsin.

At the outset of trial Hudson made an oral motion in limine, subsequently joined by Smith, seeking to prevent the government from introducing any Rule 404 (b) evidence. The government had submitted a "Memorandum Regarding 404 (b) Evidence" on the day before trial commenced. That Memorandum provided brief descriptions of a total of five prior crimes, evidence of which the government contemplated might be introduced at trial, and summary argument as to why the evidence would be admissible under Rule 404 (b). Before any evidence of other crimes was actually adduced by the government, the district court allowed argument by the parties in the absence of the jury. In denying appellants' motion, the district court expressly found that (1) the other crimes evidence proffered by the government (which included evidence pertaining to the three larcenies listed above) was admissible primarily on the issues of intent, plan and identity, (2) the evidence would be clear and convincing and (3) the probative "impact" of the evidence outweighed any unfair prejudice.

The district court did not evaluate the five alleged other crimes separately, and with the one exception noted below, did not engage in any further analysis of the admissibility of that evidence at the various times it was admitted. However, the trial record does reveal at least five occasions, including final pre-deliberation instructions, when the trial judge instructed or reminded the jury as to the purposes that other crimes evidence can properly serve.

II

Whether evidence of other crimes, acts or wrongs is admissible under Rule 404 (b) turns on determinations of relevancy, and is therefore left to the sound discretion of the trial court. See United States v. Sinn, 622 F.2d 415, 416 (9th Cir.1980). Consequently, our review here is limited. We will reverse the district court only if we find a clear abuse of discretion. See United States v. Taggatz, 831 F.2d 1355, 1358 (7th Cir.1987); United States v. Harris, 761 F.2d 394, 398 (7th Cir.1985).

In the leading Rule 404 (b) case in our Circuit, United States v. Shackleford, 738 F.2d 776 (7th Cir.1984), we established a four-part test for determining the admissibility of evidence of other crimes, wrongs or acts. ² Such evidence is admissible if (1) The evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is clear and convincing, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

Id., at 779. See also Taggatz, 831 F.2d at 1358.

Our role on review is not to second guess the results reached by the trial court in applying the Shackleford standards. See United States v. Beasley, 809 F.2d 1273, 1278 (7th Cir.1987). Rather, our task is to ascertain whether the district court engaged in a "principled exercise of discretion" that went beyond a mere mechanical invocation of that four-part test. Id. at 1279. In our analysis of the three categories of other crimes evidence, we remain mindful that all four Shackleford requirements must be fulfilled.

A. The November 1, 1985 Midwest Savings and Loan Larceny

This is the most troublesome of the three incidents of other crimes evidence adduced by the government. It is of two dimensions. First, the testimony by Sheriff Garret Knudson of Kitter County, North Dakota and Detective Richard Schaible of the Bismarck, North Dakota Police Department established that Hudson and Smith were apprehended on the interstate highway east of Bismarck in a van that had been linked by the authorities to the Midwest Savings and Loan robbery. Detective Schaible testified that upon inventorying the contents of the van he discovered a briefcase containing an amount of money approximately equal to the amount of money reported stolen from the Midwest Savings and Loan Association. Schaible also testified that both Leon Hudson and Reginald Smith were charged with the Midwest Savings and Loan robbery. He testified further that Hudson subsequently pled guilty to a charge of theft of property, and that Smith, who had been charged as a juvenile, was transferred to the custody of juvenile authorities in Wisconsin.

In addition to the above-described evidence pertaining to the November 1, 1985 Midwest Savings and Loan robbery, the government introduced through the testimony of Detective Schaible eighty-two photographs he found in the van in which Hudson and Smith were riding on November 1, 1985. Those pictures show appellants in various poses and locations (a motel room, a limousine, a parking lot, etc.). A number of the snapshots picture Hudson, and/or Smith clowning with large amounts of cash in their hands, stuffed in their pants or in their mouths and displayed on a table or in a briefcase. Other than the testimony of Detective Schaible that he discovered these pictures in the van in which appellants were riding on November 1, 1985, the government made no effort to link the pictures to the Midwest Savings and Loan larceny or any other relevant act by Hudson or Smith.

The government attempted to elicit from Detective Schaible a hearsay account of the Bismarck, North Dakota larceny provided to him by one of the tellers who witnessed the incident. However, that effort was foiled when the district court sustained a hearsay objection from Hudson's trial counsel. The government made a second effort to enter testimony from Detective Schaible as to the modifications made or planned in the teller counters at Midwest Savings and Loan as a result of the November 1, 1985 robbery. That effort was also thwarted by a sustained hearsay objection. The government offered no further evidence to establish the nature of the Midwest Savings and Loan larceny. The record contains no evidence whatsoever as to the details of that crime.

At the time the evidence pertaining to the Midwest Savings and Loan robbery was introduced, the district court did not engage in a Rule 404 (b) analysis. Consequently, we cannot discern whether it consciously considered the significance of the void in the government's evidence. Regardless, because the government did not in any way establish that the Bismarck, North Dakota robbery was similar in nature to the charged crime, and was therefore relevant as proof of appellants' intent, identity or motive, the second Shackleford criterion is not satisfied. Thus, there is no question the evidence should not have been admitted. ³ The district court clearly abused its discretion when it permitted this other crimes evidence to be introduced. The evidence could have served no purpose other than to demonstrate to the jury that Hudson and Smith were experienced bank thieves.

The district court also clearly abused its discretion when it permitted the eighty-two photographs into evidence. First, the government offered no theory as to how these pictures were relevant to either the Midwest Savings and Loan larceny or, in a non-Rule 404 (b) context, somehow linked directly to the charged crime. More importantly, it failed to demonstrate how the pictures are in any way probative of appellants' intent, identity or plan with regard to the Eaton Employees Credit Union larceny. In the absence of proof that the pictures were directed toward establishing one of those matters identified by the district court as being at issue, there was no basis under the first Shackleford criterion for allowing them into evidence.

The trial judge did not expressly engage in a Shackleford -type analysis when trial counsel for both appellants objected to the admission of the photographs. Rather, apparently in response to the reference by Hudson's trial counsel to Fed.R.Evid. 403, the trial judge observed first that "[t]he Court is of the opinion that while some of these photographs were irrelevant, the fact that they were all found together in the place in which they were found, I suppose, makes it totality of them since some of them are relevant to the considerations of the case." [sic]

The Rule 401-type, logical relevance considerations reflected in the comments of the trial judge roughly parallel the inquiry directed by the first Shackleford criterion. Nevertheless, the conclusory observation that "some of [the pictures] are relevant to the considerations of this case" (presumably because they were found in appellants' van on November 1,...