U.S. v. DeAngelo

• Citation: 13 F.3d 1228
• Decision Date: 12 January 1994
• Docket Number: No. 93-1296,93-1296
• Parties: 40 Fed. R. Evid. Serv. 189 UNITED STATES of America, Appellee, v. Don Phillip DeANGELO, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1228

13 F.3d 1228

40 Fed. R. Evid. Serv. 189

UNITED STATES of America, Appellee, v. Don Phillip DeANGELO, Appellant.

No. 93-1296.

United States Court of Appeals Eighth Circuit.

Submitted June 15, 1993.

Decided Jan. 12, 1994.

Virginia Villa, Minneapolis, MN, argued, for appellant.

Kenneth Saffold, Minneapolis, MN, argued, for appellee.

Before RICHARD SHEPPARD ARNOLD, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

Don Phillip DeAngelo appeals his conviction for armed bank robbery. DeAngelo argues that the district court ¹ committed reversible error by improperly admitting unduly inflammatory evidence against him and by improperly instructing the jury on an element of the armed bank robbery count. We affirm the district court's judgment.

I.

On June 3, 1992, DeAngelo robbed the Capitol State Bank in St. Paul, Minnesota. DeAngelo told a teller at the bank that he had a gun, but he never displayed a gun nor anything resembling a gun. On June 5, 1992, DeAngelo robbed the Norwest Bank in New Brighton, Minnesota. During the robbery of the Norwest Bank, he brandished and discharged what appeared to some of the witnesses in the bank to be a pistol.

On June 7, 1992, DeAngelo was arrested by the State Patrol in Nebraska with some $5,000 in cash (including bait bills from the Norwest robbery) and a starter gun ² in his possession. DeAngelo subsequently was indicted for two counts of armed bank robbery under 18 U.S.C. Secs. 2113(a) & 2113(d). Count one charged the June 3, 1992, robbery and count two charged the June 5, 1992, robbery.

At trial on these charges, DeAngelo admitted robbing the banks (a violation of 18 U.S.C. Sec. 2113(a)) but argued that he did not commit armed bank robbery (under 18 U.S.C. Sec. 2113(d)). In particular, DeAngelo argued that he did not use a "dangerous weapon," a necessary element under 18 U.S.C. Sec. 2113(d) for an armed bank robbery conviction, in either robbery. DeAngelo asserted that he did not use any weapon in the first robbery and that the starter gun he used in the second robbery was not a "dangerous weapon." DeAngelo asked the jury to return a guilty verdict on both counts for simple bank robbery violations under 18 U.S.C. Sec. 2113(a). The jury returned a verdict finding DeAngelo guilty of simple bank robbery on count one but finding DeAngelo guilty of armed bank robbery on count two. DeAngelo appeals his conviction for armed bank robbery on count two.

II.

DeAngelo first argues that the district court committed reversible error in admitting a tape recording of a telephone call DeAngelo made to Nancy Hults, his former girlfriend, after the second robbery and shortly before his arrest. In that telephone conversation, DeAngelo accused Ms. Hults of "ratting" on him. He repeatedly used excessive vulgarity and ultimately made death threats against Ms. Hults. DeAngelo argues that the district court violated Federal Rule of Evidence 404(b) and our decision in United States v. Weir, 575 F.2d 668 (8th Cir.1978), by admitting the tape into evidence and allowing it to be played to the jury.

In Weir, a bank robbery case, we found that the trial court committed reversible error under Rule 403 in admitting testimony about the defendant's death threats against a witness and his plot to kill a witness. 575 F.2d 670-71. We specifically declined to reach the 404(b) question, finding instead that the evidence was inadmissible under Rule 403. We found that the danger of unfair prejudice outweighed the probative value of the threat evidence under Rule 403 and specifically stated that "[t]he testimony [of threats] suggested that appellants be convicted of bank robbery because they were bad men who had threatened to kill or attempted to kill law enforcement agents or informers." Id. at 671. DeAngelo urges us to follow Weir and find that the trial court improperly admitted the tape-recorded evidence against him.

The government argues that the tape was admissible under Rule 404(b) on four different grounds. First, the government contends that the evidence showed the context of the bank robbery crime because DeAngelo specifically mentions the cash he received from the robberies and the car he bought with the cash. Second, the government argues that the death threats against Ms. Hults are evidence of DeAngelo's consciousness that he is guilty of bank robbery. Third, the government asserts that the tape also helps demonstrate his motive for the robbery because it shows that DeAngelo intended to give some of the money he obtained in the robbery and a car he had bought with the money to Ms. Hults. Fourth, the government argues that the threats demonstrate DeAngelo's capability of using the type of force and intimidation he was charged with in the armed robbery count. The government also argues that Weir can be distinguished because it is based on entirely different facts from those involved in this case.

Rule 404(b) provides, in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

Rule 404(b) applies to evidence of subsequent as well as prior crimes, wrongs, or acts. See United States v. Johnson, 934 F.2d 936, 939-40 (8th Cir.1991). In order for the trial court to admit evidence under Rule 404(b), the evidence must satisfy the following conditions:

1. The evidence of the bad act or other crime is relevant to a material issue raised at trial;

2. The bad act or crime is similar in kind and reasonably close in time to the crime charged;

3. There is sufficient evidence to support a finding by the jury that the defendant committed the other act or crime; and

4. The potential prejudice of the evidence does not substantially outweigh its probative value.

Id. at 939. "The district court has broad discretion to admit such evidence and its discretion will not be overturned unless it is clear that the evidence had no bearing upon any of the issues involved." Id. (quotations omitted).

Three of the reasons the government asserts for offering the evidence at trial support the trial judge's decision to admit the recorded conversation without ever implicating Rule 404(b). We have held that the jury in a criminal case is entitled to know about the context of a crime and any events that help explain the context. United States v. Rankin, 902 F.2d 1344, 1346 (8th Cir.1990). We have ruled a number of times post-Weir that evidence of death threats against witnesses or other parties cooperating with the government is generally admissible against a criminal defendant to show consciousness of guilt of the crime charged. See United States v. Nunn, 940 F.2d 1128, 1131 (8th Cir.1991); see also United States v. Runge, 593 F.2d 66, 70 (8th Cir.1979). Moreover, we have noted that as direct evidence of the crime charged, the evidence of threats is not even Rule 404(b) evidence. Nunn, 940 F.2d at 1131 (citing United States v. McConnell, 903 F.2d 566, 571 (8th Cir.1990)).

To the extent that DeAngelo talks about the cash he obtained in the robberies and the car he bought with it, those parts of the taped conversation are, in our view, nonhearsay admissions by the defendant concerning the crimes he is charged with committing. See Fed.R.Evid. 801(d)(2)(A). They are not evidence of some "other crime," nor are they themselves "bad acts", and they do not need Rule 404(b) to authorize their introduction. If they did, those admissions would also tend to show DeAngelo's motive for the robberies, which is, of course, one of Rule 404(b)'s listed reasons for admission.

The fourth reason advanced by the government is somewhat problematic because it comes close to being the very reason for the exclusionary portion of Rule 404(b), i.e., if DeAngelo would threaten death to Ms. Hults over the telephone, then he possesses the character trait for using the force and intimidation he was charged with using in the bank robbery counts and it is likely then that he did so. Two important factors dispel our concern in this respect. First, while the government advances the suspect argument here, it did not do so with the jury. As we point out in more detail later in this opinion, no mention of the conversation or the inferences to be drawn from it were made by the prosecutor in closing argument. Secondly, the trial court gave the jury a limiting instruction guarding against the use of the recording as character evidence.

DeAngelo concedes that evidence of death threats is admissible to show consciousness of guilt and that the taped conversation would be admissible to show motive. DeAngelo contends, however, that while the tape-recorded evidence may be probative of his guilt on the simple bank robbery charges under Sec. 2113(a), the threats and other inflammatory material in the tape are not probative of his guilt for the armed bank robbery charges under Sec. 2113(d). DeAngelo argues that when he admitted his guilt on the simple bank robbery charges in his opening statement and throughout the trial, the tape-recorded evidence was no longer probative of his guilt on the simple robbery charge because he had conceded the issue and it was no longer a subject of dispute in the trial. DeAngelo asserts that admitting the threat evidence violated Rule 404(b) because it was not relevant to the armed robbery charges but instead it suggested that the jury find him guilty under Sec. 2113(d) based on a subsequent bad act, not on evidence of armed bank robbery.

DeAngelo incorrectly asserts that because he conceded the Sec. 2113(a) violations in his opening statement, the government's evidence on those violations was no longer relevant to the case. The Sec. 2113(a) charges remained in the case throughout the trial, the court...