U.S. v. Hudson

• Decision Date: 29 January 1990
• Docket Number: 88-2567,Nos. 88-2561,s. 88-2561
• Citation: 884 F.2d 1016
• Parties: 28 Fed. R. Evid. Serv. 1451 UNITED STATES of America, Plaintiff-Appellee, v. Leon HUDSON and Reginald Smith, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1016

884 F.2d 1016

28 Fed. R. Evid. Serv. 1451

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

Nos. 88-2561, 88-2567.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 9, 1989.

Decided Sept. 11, 1989.

Rehearing and Rehearing En Banc Denied Jan. 29, 1990.

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

Robert Crawford, Milwaukee, Wis., for defendant-appellant Leon Hudson.

Michael L. Chernin, Milwaukee, Wis., for defendant-appellant Reginald Smith.

Before CUMMINGS and KANNE, Circuit Judges, and GRANT, Senior District Judge. ^*

KANNE, Circuit Judge.

On November 19, 1986, defendants Leon Hudson and Reginald Smith entered the Eaton Employee Credit Union in Milwaukee, Wisconsin. Smith asked a teller on duty for change. As she opened her cash drawer, Smith leaped over the counter and reached into the drawer. Hudson attempted to vault over the counter, but could not do so. He then ran around the counter and tried to open other drawers. The two defendants stole a total of $1,263.00. According to the testimony of Theresa Imanuele, the victim teller, and Susan Calderon, the credit union president, two men had come into the credit union two days earlier to ask for change. Imanuele testified that the taller man (Smith) wore a hat "just like the man who robbed me on Wednesday the 19th." Hudson was wearing this same hat during a later counter-jumping incident on December 2, 1986 (discussed below) and at the time of his arrest on December 5, 1986.

Shortly after the theft, Imanuele made a tentative photo identification of Hudson and a positive identification of Smith. Video surveillance cameras recorded the theft. Numerous finger and palm prints of the defendants, moreover, were found on the credit union counter. ¹

The defendants originally were convicted in April of 1987 of entering a credit union with the intent to commit a larceny in violation of 18 U.S.C. Sec. 2113(a). Last year, this court reversed these convictions, based on the inadmissibility of some of the government's evidence under Rule 404(b). United States v. Hudson, 843 F.2d 1062 (7th Cir.1988) (Hudson I ). We remanded this case to the district court for a new trial. In July of 1988, the case was retried, and the defendants were again convicted. Hudson and Smith appeal their second conviction on numerous evidentiary grounds. For the reasons set forth below, we affirm.

I. Admissibility of Evidence under Rule 404(b)

A. Four-Part Test for Admissibility

Rule 404(b) of the Federal Rules of Evidence provides:

Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted 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.

This circuit has established a four-part test for whether evidence is admissible under Rule 404(b). First, the evidence must be directed toward establishing a matter in issue other than the defendant's propensity to commit the act charged. Second, the other act must be similar enough and close enough in time to be relevant to the matter in issue. United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984). Third, the evidence must be "sufficient ... to support a finding by the jury that the defendant committed the similar act." Huddleston v. United States, 485 U.S. 681, ----, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988). ² Finally, the proponent of the evidence must show that the probative value of the evidence is not substantially outweighed by its prejudicial effect. Shackleford, 738 F.2d at 779. We note as well that the judge's determination of whether evidence is admissible in the first place under Rule 404(b) is subject to the abuse of discretion standard of review United States v. Connelly, 874 F.2d 412, 415 (7th Cir.1989).

B. The Three Other Counter-Jumpings

At trial, the government introduced evidence concerning three other, similar, acts of theft. The defendants challenge the district court's admission of this evidence on appeal on the ground that it does not satisfy the first and third parts of the Shackleford/Huddleston test discussed above. First, they argue that under Huddleston, the district court was required to instruct the jury that it had to find by a preponderance of the evidence that the defendants committed the three acts. Second, they argue that this evidence was not admissible to show either identity or intent.

1. The Three Incidents

On October 11, 1985, two black men in their late teens, later identified by eyewitness testimony and fingerprint evidence as Smith and Hudson, respectively, entered the Security Savings and Loan Association in Milwaukee, Wisconsin, and asked for change. According to Giselle Jacobs, the teller who testified at trial, it was the taller thief (that is, Smith) who asked her for change. As the teller opened her cash drawer, a third man walked in, and the three men lunged over the counter toward the cash drawer, grabbed cash and fled.

On November 1, 1985, defendants were arrested for the robbery of Midwest Savings and Loan Association in Bismarck, North Dakota. Laurie Schiermeister, the victim teller who testified at trial, stated that during the afternoon of November 1, two sixteen or seventeen year old black men entered Midwest Savings and approached her. The taller man (once again identified as Smith) asked her for change. Schiermeister left her register and approached Joyce Thomas, another teller, to ask for change. When she turned around, she saw the two men behind the counter grabbing money. Schiermeister and Thomas both made a positive photo identification of Smith. Thomas made a tentative photo identification of Hudson. Hudson, Smith and a third, older black man were arrested later that afternoon in a van matching the description given to the Kidder County Sheriff's Department. Hudson, who gave a false name when he was arrested, was charged with grand theft, but his subsequent conviction therefor was not introduced at trial.

On December 2, 1986, two young black men entered the Mutual Savings and Loan Association office at Milwaukee, Wisconsin. The teller in this instance, Mariella Barnes, testified at trial that she noticed the two men as she walked out of the vault holding approximately $2,700.00 in cash. As a precaution, she put the money aside, and asked the men if she could help them. The taller man (identified in a lineup and again in court as Smith) said that he needed change. Barnes opened her cash drawer and gave the man change. The second, shorter man then said that he also needed change, but when Barnes reopened her cash drawer, both men vaulted the counter. They then emptied her drawer completely, went to a second drawer, emptied it, took the $2,700.00 in cash Barnes had set aside and fled. Barnes also made an identification of Smith as being the taller thief appearing in the surveillance photos of this incident. One photo in the incident depicts the shorter thief wearing a distinctively-shaped hat. This hat is identical in appearance to the hat worn by Smith on November 17 and 19. Hudson was wearing this hat at the time of his arrest. Barnes testified that the hat looked just like the one that the shorter thief wore during the robbery.

2. Instruction of the Jury

Both defendants argue that under the Supreme Court's decision in Huddleston the trial judge erred in refusing to instruct the jury that it had to find that the government had proved by a preponderance of the evidence that the defendants had in fact committed the similar acts before it could consider whether these acts showed identity or intent. We do not believe, however, that Huddleston requires such an instruction.

The language in Huddleston that evidently led the defendants to make this argument is as follows:

We conclude that a preliminary finding by the court that the Government has proved the act by a preponderance of the evidence is not called for under Rule 104(a). This is not to say, however, that the Government may parade past the jury a litany of potentially prejudicial similar acts that have been established or connected to the defendant only by unsubstantiated innuendo. Evidence is admissible under Rule 404(b) only if it is relevant. "Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case." ... In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.... In the instant case, the evidence that petitioner was selling the televisions was relevant under the Government's theory only if the jury could reasonably find that the televisions were stolen.

Such questions of relevance conditioned on a fact are dealt with under Federal Rule of Evidence 104(b)....

In determining whether the Government has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact--here, that the televisions were stolen--by a preponderance of the evidence....

485 U.S. at ----, 108 S.Ct. at 1501 (footnote and citations omitted).

Before the Supreme Court's decision in Huddleston, this court evaluated similar acts evidence under Rule 104(a), and required that the proponent of the similar acts evidence prove to the trial court by clear and convincing evidence that the defendant committed the similar act. United States v. Byrd, 771 F.2d 215, 222 & n. 4 (7th Cir.1985). The Eighth, Ninth and District of...