U.S. v. Moore

• Decision Date: 16 July 1997
• Docket Number: No. 96-2528,96-2528
• Citation: 115 F.3d 1348
• Parties: 47 Fed. R. Evid. Serv. 264 UNITED STATES of America, Plaintiff-Appellee, v. Nicholas Tyrone MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1348

115 F.3d 1348

47 Fed. R. Evid. Serv. 264

UNITED STATES of America, Plaintiff-Appellee, v. Nicholas Tyrone MOORE, Defendant-Appellant.

No. 96-2528.

United States Court of Appeals Seventh Circuit.

Argued Dec. 12, 1996.

Decided June 18, 1997.

Rehearing Denied July 16, 1997.

Gregory M. Gilmore, Patrick J. Chesley (argued), Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Ronald J. Stone (argued), Stratton & Nardulli, Springfield, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Defendant-Appellant Nicholas Tyrone Moore was convicted of two counts of robbery of financial institutions in violation of 18 U.S.C. § 2113(d), and two counts of carrying a firearm during crimes of violence in violation of 18 U.S.C. § 924(c). Moore was sentenced to 86 months on each of the robberies to be served concurrently ¹ and was also sentenced to 240 months on each of the counts of carrying a firearm, to be served consecutive to each other and consecutive to his other robbery sentences. Thus, over all Moore received a sentence of 566 months in prison as well as being sentenced to five years of supervised release following the period of imprisonment on each of the robbery charges and three years on each of the carrying a firearm charges, all to run concurrently with each other for a total of five years supervised release. The court also ordered Moore to pay $17,066 in restitution and $200 in special assessments. Moore appeals.

Moore argues that the district court abused its discretion in: admitting evidence of other crimes under Federal Rule of Evidence 404(b) to illustrate Moore's modus operandi; allowing a witness to explain his opinion on the similarity between the charged offenses and other crimes, as well as discuss a criminal's propensity to commit the same crime; denying his motion to suppress the introduction of photo array evidence which Moore contends was unduly suggestive; and, denying his severance motion to have separate trials for the charges relating to the two robberies. Finally, Moore argues that there was insufficient evidence to convict him of committing the robbery of the Sangamo Credit Union. We affirm.

I. FACTUAL BACKGROUND

At approximately 10:00 a.m. on the morning of September 14, 1992, Moore entered Security Federal Savings and Loan ("Security"), located in Springfield, Illinois, and politely asked employees for directions to a nearby department store. After receiving the directions, Moore departed. About an hour later, at 11:00 a.m., two men wearing white Halloween-type hockey goalie masks and dark clothing burst into Security and demanded that the two tellers "give us all your money." The robbers ran behind the tellers' counter and with an assault of profane language ordered the tellers to open their cash drawers. After the employees opened the drawers, the robbers began stuffing cash into their pants pockets, as opposed to using a bag. Once the drawers had been emptied one of the robbers demanded that the vault be opened. After the vault was opened the other robber removed money from the cash box located inside the vault. The robber inside the vault instructed his partner to "blow [the] fucking brains out" of a teller who had previously stated that she did not have a key to the cash box in the vault. As a result the robber held his gun within several inches from the teller's head, but did not fire while the teller vehemently pleaded for her life. After emptying the cash box the two robbers ejected a videotape from the VCR recording the robbery and fled out the back door and ran down an alley into a residential neighborhood.

Later that day, the Springfield police located a hockey mask similar to the ones used in the robbery in a garbage can in an alley half a block from Security. Testing of this mask by the police and a Federal Bureau of Investigation ("FBI") Fingerprint Specialist revealed one of Moore's fingerprints on the mask. Three bank employees identified Moore in a photo array prior to trial and in court as the individual who entered Security the morning of the robbery and requested directions. The two employees who witnessed the robbery described the robbers as black males, one approximately six feet tall and carrying an automatic handgun, and the other robber slightly shorter. ² Moore is African-American and 6'1" tall. Moore was also identified in a photo array by a woman who shortly after the robbery observed Moore, while walking her 12 pound peek-a-poo dog, and saw him and another male crouching in an alley a few blocks from Security. When the woman inquired as to why Moore was acting that way he replied that he was afraid of the dog. Apparently, Moore would have us believe that dogs are not man's best friend and that this 12 pound dog caused him to hide in fear.

On October 20, 1992, some five weeks after the Security robbery, at approximately 9:45 a.m., Moore entered Sangamo Credit Union ("Sangamo"), also located in Springfield, Illinois, and once again politely asked a teller for directions to a nearby shopping mall. After Patricia Henton, a teller, gave him directions he departed. Approximately 45 minutes later, at 10:30 a.m., two individuals stormed into the credit union office wearing gorilla masks, dark clothing and gloves, while carrying handguns. Upon entry they announced, replete with numerous obscenities, that they were robbing the facility. One of the robbers proceeded behind the teller counter and removed money from the teller drawers and stuffed it into his pants pockets. The other robber directed an employee to open the safe, the employee complied but the safe was found to contain no money. The robbers exited Sangamo Credit Union, one using the front door and the other the rear. The two rendezvoused at the rear of the building and ran down an alley into a residential neighborhood.

After the robbery, Patricia Henton identified Moore from both a photo array and in court, as the person who requested directions from her prior to the robbery. She also informed the FBI agent investigating this robbery, Special Agent John McAtee, "that although the robbers wore masks, one of the robbers had a very disgusting and filthy mouth" and that she thought that the photograph of Moore that she identified "was identical" to that robber. Henton and a loan officer both stated that the person who asked for directions was black, around six feet tall, and had one gold front tooth. Moore has a gold capped front tooth.

Employees of both Security and Sangamo described their businesses as small facilities, with no drive-up windows, and only three and two teller windows respectively. Sangamo did not have a security camera. Both financial institutions were located in, or close to, a residential neighborhood. During each of the robberies money was dropped to the floor while the robbers stuffed money into their pants and on neither occasion did either of the robbers make any effort to pick up the money.

II. DISCUSSION

A. Other Crime Evidence as Proof of Modus Operandi and Federal Rule of Evidence 404(b)

Initially, Moore argues that the district court abused its discretion by allowing the government to admit evidence that Moore committed and was convicted of a separate bank robbery as evidence of Moore's identity and modus operandi. ³ Prior to the trial, the district court granted the government's motion for an order permitting the introduction of "other crime" evidence pursuant to Federal Rule of Evidence 404(b). Rule 404(b) permits the admission of evidence of other crimes for the purpose of establishing identity or modus operandi, however it may not be used "to prove the character of a person in order to show action in conformity therewith." ⁴ See United States v. Briscoe, 896 F.2d 1476, 1499 (7th Cir.1990). Use of other crimes evidence may not be used to demonstrate an individual's propensity to commit a crime. United States v. Smith, 103 F.3d 600, 603 (7th Cir.1996).

The district court allowed the admission of the other crime evidence that Moore had been convicted of committing the robbery of Wagner Credit Union ("Wagner"), ⁵ located in Decatur, Illinois, several months prior to the robbery of Security and Sangamo. The district court, after conducting the proper analysis, found that the similarities between the Wagner and two charged robberies "were sufficient to identify Defendant as the likely perpetrator." (R. 21 at 2-3.) Moore asserts that the similarities between the Wagner and other robberies were insufficient to conclude that a similar modus operandi was utilized. He further contends that any probative value from admitting this evidence was substantially outweighed by the danger of unfair prejudice to him.

The evidence admitted from the Wagner robbery demonstrated that on July 16, 1992, at approximately 8:30 a.m., Moore entered Wagner and asked for a job application. In response, an employee went to the copy machine to make a copy of the application form. After waiting a few minutes, Moore departed before receiving the job application. About half an hour later, shortly after 9:00 a.m., Moore and a partner charged into Wagner wearing dark clothes and hood-type masks, each carrying a handgun. One of the robbers jumped onto the teller counter and reached over into one of the teller drawers. The robber removed the money from the drawer and placed it into his pants pockets. Moore and his accomplice then rushed out through the front door.

Wagner had a video camera that recorded Moore asking for directions as well as his committing the robbery with an accomplice. At trial, Moore did not object to the admission of the Wagner videotape. The employees were able to identify the robbers as being black because of the exposed skin on their arms. The size and location of Wagner was similar to that of Security and Sangamo Credit Union in that they were all small banking facilities with...