U.S. v. Mahar, s. 74-2028
| Decision Date | 25 July 1975 |
| Docket Number | Nos. 74-2028,75-1250 and 75-1251,74-2189,74-2029,74-2188,s. 74-2028 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Roy Daniel MAHAR, Defendant-Appellant (three cases). UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Millard HARRIS, Defendant-Appellant (three cases). |
| Court | U.S. Court of Appeals — Sixth Circuit |
Blanchard E. Tual, J. Kimbrough Johnson, Jr., Memphis, Tenn. (Court appointed CJA), for defendants-appellants Mahar and Harris.
Thomas F. Turley, U. S. Atty., Glen Reid, Jr., Asst. U. S. Atty., W. Hickman Ewing, Jr., Memphis, Tenn., for plaintiff-appellee United States.
Before EDWARDS and PECK, Circuit Judges, and FEIKENS *, District Judge.
These three consolidated appeals are from the convictions of Roy Mahar and Jimmy Harris for participation in three separate bank robberies. Similar issues are raised on behalf of each defendant in each conviction.
Case numbers 74-2028 and 74-2029 1 concern the March 7, 1969 robbery of the Jackson-Watkins branch of the First National Bank of Memphis. Appellants' principal argument for reversal is that the district judge abused his discretion in permitting the government to offer proof of conduct similar to that charged in the indictment. Under the circumstances of this case, we find no error.
While this evidence is not admissible to show a defendant's character or criminal propensity, it is admissible to show motive, intent, absence of mistake, identity or common plan, pattern or scheme. United States v. Nemeth, 430 F.2d 704 (6th Cir. 1970); United States v. Ring, 513 F.2d 1001 (6th Cir. 1975). See also Rule 404(b), Federal Rules of Evidence, which would govern at any retrial. Even if admissible, such testimony should not be received unless the issue on which it is offered is genuinely contested and the probative value of the evidence outweighs its prejudice. United States v. Ring, supra, and cases cited therein.
The only real issue in this trial was identity, whether the defendants were the people who robbed the bank. Since there were no witnesses who were able to identify the defendants at trial, the government relied heavily on the testimony of W. C. Allen, a confessed accomplice. Allen testified to the events leading up to and including the Jackson-Watkins robbery. He then testified to his participation along with defendants Mahar and Harris in four other robberies. (Though there were additional robberies in which the government maintains that Allen, Mahar and Harris were involved, Allen's testimony was limited to five.) These bank robberies occurred at regular intervals of from four to six months, all involved similar though not identical "modus operandi", and of course the same people were involved in each. The government then introduced a number of witnesses from these other robberies who corroborated Allen's story and identified one or both of the defendants as participants. The trial judge carefully considered statements from each of these witnesses before trial and concluded that the government's proof tended to indicate that the defendants were "in the bank robbery business" much the way people would operate a "grocery store". It is clear that the cumulative effect of this testimony would be to identify defendants as the participants in a continuous plan or scheme to rob banks, including the...
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