U.S. v. Mothershed

• Decision Date: 14 October 1988
• Docket Number: No. 87-1913,87-1913
• Citation: 859 F.2d 585
• Parties: 27 Fed. R. Evid. Serv. 162 UNITED STATES of America, Appellee, v. Theodore MOTHERSHED, a/k/a Teddy Mothershed, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 585

859 F.2d 585

27 Fed. R. Evid. Serv. 162

UNITED STATES of America, Appellee, v. Theodore MOTHERSHED, a/k/a Teddy Mothershed, Appellant.

No. 87-1913.

United States Court of Appeals,

Eighth Circuit.

Submitted April 12, 1988.

Decided Oct. 14, 1988.

John D. Ackerman, Sioux City, Iowa, for appellant.

Robert L. Teig, Asst. U.S. Atty., Cedar Rapids, Iowa, for appellee.

Before ARNOLD, and WOLLMAN, Circuit Judges, and ROSS, Senior Circuit Judge.

ARNOLD, Circuit Judge.

Theodore Mothershed was convicted of aiding and abetting a bank robbery, in violation of 18 U.S.C. Secs. 2 and 2113(a), and sentenced to a prison term of twenty years and a special assessment of $50.00. For reversal he argues that the District Court erred in refusing his instruction on how the jury should weigh accomplice testimony, that it erred in admitting evidence of his prior conviction for possessing stolen bank money, that the evidence was insufficient to support the jury's verdict, and that his lawyer was ineffective at trial. We agree that Mothershed's prior conviction should not have been admitted, so we reverse the judgment and remand for a new trial. On the other claims of error, we hold that the evidence was sufficient and that the Court was correct to refuse the accomplice-testimony instruction. We do not reach the ineffective-assistance claim.

I.

The government's chief witness at trial was Monroe Johnson, Mothershed's alleged accomplice. Johnson testified that between about 10:30 and 11:00 a.m. on September 25, 1986, the day of the robbery, he and Mothershed were together in Cook Park in Sioux City, Iowa, using cocaine and drinking beer, and they decided to rob a nearby branch of the First Interstate Bank in order to get money to buy more cocaine. They drove to CJ's Tavern, which is about a half-block from the First Interstate branch, and parked on the street. While Johnson went inside CJ's for a drink, Mothershed went to the bank to "case it out." A few minutes later they met in Mothershed's car, and Mothershed told Johnson there were only two women tellers in the bank. Johnson then pulled a ski mask over his face, ran into the bank, dived on top of the counter-top at one of the teller's windows, opened the cash drawer, took $5,600 in twenty-dollar bills, ran out of the bank and through the alley leading to CJ's, leaped into the trunk of Mothershed's car, and was spirited away to a safe place, where he and Mothershed divided the money.

Other government evidence tended to corroborate parts of Johnson's testimony: the bank's video camera recorded both an individual who looked like Mothershed at a teller's window about thirty minutes before the robbery and the robbery itself, which occurred just as Johnson described it, and another witness, Bobby Bates, testified that he saw Johnson and Mothershed together in Mothershed's car, which was parked on the street near CJ's, about twenty minutes before the robbery.

Mothershed also testified at trial. He stated he had won a large sum of money gambling at CJ's and at an after-hours party at a nearby house during the night and early morning before the robbery. He saw Johnson at Cook Park later that morning, but did not discuss or propose a bank robbery. Johnson left the park soon after Mothershed arrived, but Mothershed stayed there until about noon. Then he drove to CJ's, parked on the street, and saw Johnson at a crap game in the parking lot behind the bar. Johnson complained that he had no money for gambling, and Mothershed lent him $200 from his previous night's winnings. Other people then started asking him for money, and he went inside the bar to avoid them. But the solicitations continued, and he started thinking about what he could do to get away from the throng. It occurred to him that he had some foreign currency in his pocket and at home, and he decided to go to the First Interstate branch to find out how to exchange it. He went to the bank, about thirty minutes before the robbery, and told the teller he had some African and European money he wanted to exchange. The teller, Mary Kobbe, told him she could check current rates of exchange, but that he should go to the main branch if he wanted actually to exchange it. So Mothershed left the bank and went back to CJ's parking lot, where he saw Johnson again.

Mothershed told Johnson he had just been to the bank, and Johnson asked who was working there, explaining that he had some checks he could cash to repay Mothershed the money he owed him, but he had no identification and thus had to go to a particular teller who would cash the checks for him anyway. Mothershed described the two women he had seen in the bank, and Johnson said neither was the teller he wanted, and that he would have to meet Mothershed later that day to pay him back. They agreed to meet at Johnson's sister's house at 2:00 p.m. Mothershed left CJ's a few minutes later, and when he got to his car he saw a friend, Dale Moss, and talked to him briefly. While he and Moss were talking, Bobby Bates walked by and asked Mothershed for a ride, which he refused.

Shortly after 1:00, Mothershed went to Johnson's sister's house. Johnson was already there; he was excited and agitated, and asked Mothershed to follow him to the basement, where he took $400 in twenty-dollar bills out of a box (which contained even more money) and gave it to Mothershed. Johnson and Mothershed stayed together until about 3:00 p.m. Mothershed later went back to Johnson's sister's house, where he again saw Johnson, at 6:00 or 7:00 p.m. At this point, Johnson said he had heard that Mothershed had been "picked up," but Mothershed said he had not, and did not know what Johnson was talking about.

Later that evening, the police did pick up Mothershed for questioning. He admitted having been in the bank that day but claimed he could prove it was before the robbery because he knew he had been videotaped. He admitted further that he had seen Johnson several times that day and had received money from him, but he denied having planned or discussed robbing the bank. Mothershed was released, and Johnson was arrested the next day and charged with the robbery. On the eve of trial, Johnson gave a statement implicating Mothershed in the robbery, and agreed to plead guilty and cooperate fully in the case against Mothershed in return for consideration at sentencing.

II.

We first consider the issue on which we reverse, the admission of Mothershed's prior conviction. One of the investigating FBI agents, Ron Grove, testified that when he learned Johnson and Mothershed had been seen near the bank close to the time of the robbery, he ran their names through the FBI data bank, and found that Mothershed had a prior felony conviction, about ten years old. When the government's lawyer asked Grove what the conviction was for, the defense objected, and there was a side-bar conference. Since it was late, the District Court excused the jury for the day and asked the lawyers to be prepared to discuss the admissibility of the conviction before trial the next morning. At that conference, the government argued:

Well, Your Honor, I think the evidence is clearly admissible under [Federal] Rule [of Evidence] 404(b) as evidence of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake ....

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Your Honor, under 404 we are offering it ... for other purposes such as proof of motive which is I guess what we are offering it for, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. All of those purposes, but I would say primarily for motive, intent, preparation, opportunity, planning and knowledge.

Tr. 218-19, 223.

The District Court found the evidence admissible, holding it relevant to a material issue, Mothershed's intent. Tr. 224-25. The Court then read the jury a limiting instruction ¹ relating to the prior conviction, and the examination of Grove resumed:

Q: Mr. Grove, what is your understanding with regard to the conviction that you testified to yesterday? What was that for?

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* * *

A: The felony charge for which he was convicted was for possession of stolen bank robbery money.

Tr. 228-29.

Mothershed's lawyer had objected repeatedly to the admission of this evidence, and, after this response, he also objected that Grove had misstated the crime for which Mothershed had been convicted, arguing that the charge was possession of stolen bank money, not bank robbery money. Tr. 229-30. To this the government replied out of the hearing of the jury:

Your Honor, if this witness was permitted further testimony with regard to this, he would indicate that in fact it was a bank robbery, in fact that he has read the reports and that he has checked out the judgments, and that's where the funds came from. There was a bank robbery.

Tr. 230. The Court overruled this objection also.

This Court has repeatedly stated that the admission of prior bad acts under Fed.R.Evid. 404(b) requires that the evidence be relevant to a material issue, clear and convincing, ² more probative than prejudicial, and similar in kind and close in time to the crime charged. E.g., United States v. Miller 25 F.2d 462, 466 (8th Cir.1984). "We consider 404(b) a rule of inclusion, permitting admission of such evidence unless it tends to prove only the defendant's criminal disposition." United States v. O'Connell, 841 F.2d 1408, 1422 (8th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 2857, 101 L.Ed.2d 893 (1988) (citation omitted). But this does not mean that all such evidence is admissible simply on invocation of the Rule. To borrow the words of Judge Newman of the Second Circuit:

This Circuit's use of the inclusionary approach to similar act evidence does not obviate the need to identify the fact or issue to which the evidence is relevant. All evidence objected to on relevancy grounds must be claimed to prove some fact or issue "of consequence to the determination of the...