U.S. v. Owens

• Decision Date: 21 September 2005
• Docket Number: No. 04-2793.,04-2793.
• Citation: 424 F.3d 649
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio OWENS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

424 F.3d 649

UNITED STATES of America, Plaintiff-Appellee, v. Antonio OWENS, Defendant-Appellant.

No. 04-2793.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 2005.

Decided September 21, 2005.

COPYRIGHT MATERIAL OMITTED

Michael Donovan (argued), Office of The United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Abner J. Mikva, Scott R. Rauscher (argued), University of Chicago Law School, Chicago, IL, for Defendant-Appellant.

Before MANION, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Defendant Antonio Owens appeals his conviction and sentence for bank robbery in violation of 18 U.S.C. § 2113(a) and 2, arguing that the district court abused its discretion by admitting evidence which suggested that Owens had robbed the same bank seven and a half years earlier. Because this prior bad act evidence is neither admissible pursuant to Federal Rule of Evidence 404(b) nor intricately related to the charged crime, we vacate the defendant's conviction and remand his case for a new trial.

I. BACKGROUND

On November 22, 2002, Princeten Davis was apprehended by police while fleeing the scene of a bank robbery. Once under arrest, Davis, after changing his story several times, eventually admitted to the robbery. He also confessed to his involvement in another bank robbery committed weeks before, on October 19, 2002. He insisted, however, that this earlier robbery was the idea of his cousin — defendant Antonio Owens — and that Owens made him do it. Owens was arrested on September 4, 2003, and brought to trial before a jury in March 2004 for bank robbery in violation of 18 U.S.C. §§ 2113(a) and 2.

At trial, Davis testified against Owens in exchange for a reduced prison sentence for his involvement in both the October and November 2002 robberies. Davis testified to the following: sometime before October 19, 2002, Owens hatched a plan to rob a bank with Davis. On the morning of October 19, 2002, after the pair spent the night at Davis's mother's home, Owens woke Davis up and asked him if he was ready to rob a bank. After Davis affirmatively responded, Owens drove Davis to a Banco Popular branch in Melrose Park, Illinois. When they arrived, Owens wrote a note, which he gave to Davis with instructions to hand it to a bank teller once inside. The note stated, "I have a gun. Please don't make me kill you. Put all the money on the counter. No one will get hurt." Owens then gave Davis a walkie talkie, keeping one for himself, and said he would warn Davis should the police arrive. Though Davis went so far as to enter the bank and to get in line to see a teller, he grew scared, feeling out of place as the only African American person in the room, and left.

Davis further testified that once he returned to the car, Owens told him that he would drive him to another bank where he would feel more comfortable. According to Davis, Owens then proceeded to drive him to a Harris Bank branch located on North Avenue on the west side of Chicago. Owens suggested that his cousin would feel more comfortable at this bank because it serviced more African American patrons than their prior target, and because Owens had robbed that bank before. So comforted, Davis got out of the car and entered the bank with the handwritten note and walkie talkie. He handed a teller the note; she handed him money that she had been counting. Cash in hand, Davis left the bank, rushed to meet Owens in the alley behind the bank, and got in the car which Owens drove back to the home of Davis's mother. In his haste, Davis left the note behind on the teller's counter.

Several of the government's witnesses — namely, Davis's mother (Nadine) and cousin (Cortez) — testified that Owens had admitted to each of them separately that he and Davis had robbed the bank. Diamond Magnum, one of Davis's friends, testified that Owens spent his portion of the robbery proceeds on her, and that he admitted to robbing banks in the past.

Forensic evidence revealed that the demand note contained one fingerprint belonging to Owens. In addition, a handwriting expert testified that a comparison of a handwriting sample from Owens and the demand note revealed that Owens wrote the note. The district court, at the government's request, admitted evidence tending to suggest that Owens had robbed the same Harris Bank with the aid of a demand note in 1995. Though Owens was never charged with that prior robbery, the teller who received the demand note — Myrna Castillo — identified Owens as the robber in a lineup she viewed in 1995. She also identified Owens at trial through government exhibit 6 — a photograph of the lineup she had attended in 1995. This photo shows Owens and five other men seated, barefoot, and wearing large signs with numbers around their necks and what appears to be identical prison jumpsuits.

In his defense, Owens presented an alibi witness — Owens's former neighbor, Brian Wrobel. Wrobel testified that Owens was cleaning one of his cars at the time of the 2002 robbery, and could not have been involved in the crime. As for the demand note with his fingerprints and handwriting, Owens claims that Davis took the note paper from him, and that he had no knowledge that his paper would be used to commit a crime.

The jury found Owens guilty. The district court thereafter sentenced him to 145 months in prison, and Owens now appeals his conviction and sentence.

II. ANALYSIS

The crux of Owens's appeal centers around the admission of past bad act evidence — that evidence tending to suggest that he had committed a prior, uncharged bank robbery at the same Harris Bank branch in 1995. This evidence was introduced through the testimony of Davis, Castillo (the teller who received the demand note during that prior robbery), and Sergeant Robert Fitzgerald (the police officer who organized the lineup at which Castillo identified Owens as the 1995 robber).

A. Standard of Review

We review a district court's evidentiary decisions for an abuse of discretion. United States v. Rangel, 350 F.3d 648, 650-51 (7th Cir.2003). Furthermore, when reviewing evidentiary errors, we will only reverse and order a new trial provided that the improper admission was not harmless, which is to say "only if the error had a substantial influence over the jury, and the result reached was inconsistent with substantial justice." United States v. Hernandez, 330 F.3d 964, 969 (7th Cir.2003).

B. Admission of Evidence of Prior Uncharged Bank Robbery Was Improper

Prior bad act evidence may be admitted either pursuant to Federal Rule of Evidence 404(b), see United States v. Wilson, 31 F.3d 510, 514-15 (7th Cir.1994), or where it is intricately related to the current charged crime or necessary to complete the story of the crime on trial, see United States v. Ramirez, 45 F.3d 1096, 1102 (7th Cir.1995); United States v. Hargrove, 929 F.2d 316, 320 (7th Cir.1991). Here, the district court found the evidence suggesting Owens's involvement in the 1995 Harris Bank robbery admissible under both standards. However, Owens argues that this past bad act evidence fits neither, and that the admission of such evidence constituted an abuse of discretion.

1. Evidence of the Prior Robbery Is Not Admissible Under Federal Rule of Evidence 404(b)

Under Federal Rule of Evidence 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith," but may be admissible for "other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." However, before admitting evidence under Rule 404(b),

the court must determine whether (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

Wilson, 31 F.3d at 514-15 (citing cases).

With regard to this first prong, the government argues that the evidence of the 1995 robbery was properly admitted toward establishing three alternative matters in issue other than propensity: (1) defendant's participation in, and control of, the charged offense; (2) the absence of mistake or accident in finding himself involved in the charged offense; and (3) his knowledge of the particular bank that he chose to rob.

We address first the "participation in and control of" argument, in which the government contends that the evidence of the prior robbery was properly admitted to show that Owens was not an "innocent pawn" in the commission of the charged offense. In United States v. Lightfoot, 224 F.3d 586, 588 (7th Cir.2000), we held that evidence of a defendant's past violent abuse of a female roommate was admissible to refute his defense that she was the real drug dealer in the charged offense, and that he was at best an innocent pawn in her nefarious undertakings. Id. Citing Lightfoot, the government argues that the past act evidence here was properly admitted to rebut Owens's defense that Davis was the real robber who implicated Owens merely to reduce his own sentence; to prove that Owens was not merely a pawn whose note paper was used to create a demand note, but rather the brains behind the operation who picked the bank that Davis ultimately robbed. This dog just doesn't hunt. Owens never claimed that he was a pawn in the robbery; rather, he claims that he was not involved at all. To construct an innocent pawn defense, Owens would first have to concede his presence in the car with Davis on the day of the robbery, consistent with Davis's account, and then insist that he was no more than an unwitting "wheelman." Only then...