U.S. v. Smith

• Decision Date: 27 December 1996
• Docket Number: No. 96-1313,96-1313
• Citation: 103 F.3d 600
• Parties: 46 Fed. R. Evid. Serv. 211 UNITED STATES of America, Plaintiff-Appellee, v. Kory C. SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 600

103 F.3d 600

46 Fed. R. Evid. Serv. 211

UNITED STATES of America, Plaintiff-Appellee, v. Kory C. SMITH, Defendant-Appellant.

No. 96-1313.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 25, 1996.

Decided Dec. 27, 1996.

John W. Vaudreuil (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Daniel W. Hildebrand (argued), DeWitt, Ross & Stevens, Madison, WI, for Defendant-Appellant.

Before WOOD, Jr., EASTERBROOK, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

On November 28, 1995, Kory Smith was convicted by a jury of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). The District Court sentenced Smith to 14 years in prison and ordered him to pay restitution to the victim banks. On appeal, Smith raises four issues: 1) that the trial court should not have admitted evidence of a prior bank robbery by Smith as proof of his identity in this case; 2) that the trial court gave erroneous jury instructions regarding 18 U.S.C. § 2113(d); 3) that the evidence was insufficient to convict him of armed bank robbery; and 4) that the trial court should not have enhanced his sentence for obstruction of justice. We reject all but the second of Smith's contentions, and because any error in the jury instructions was harmless, we affirm both the conviction and the sentence.

I. HISTORY

Kory Smith was indicted for two armed bank robberies--the first one on July 11, 1994 in Wheeler, Wisconsin and the second one a month later on August 19, 1994 in Holcombe, Wisconsin. Smith pleaded guilty to the Wheeler robbery and went to trial on only the Holcombe robbery charge. The facts of both robberies are relevant, however, because evidence of the Wheeler robbery was offered at trial to show Smith's identity in the Holcombe heist.

Wheeler is a small town in northwest Wisconsin with a population of about 200. On July 11, 1994, a friend who had agreed to help Smith rob a bank drove Smith to a branch bank in Wheeler and dropped him off at 6:30 a.m. The friend parked the car in a wooded area 200 yards from the bank while waiting for Smith. Smith returned promptly, however, telling the friend that the bank would not open for another hour and a half. The friend left but returned to the bank sometime before 8:00 a.m. Smith appeared shortly thereafter and hopped in the friend's car with the approximately $5,000 he had stolen. Smith subsequently gave some of the take to another friend who used it to purchase a white, 1987 Pontiac 6000.

At trial, the lone teller at the Wheeler branch bank testified that a thin white male, approximately 6 feet tall and in his early twenties, had entered the bank wearing a ski mask, brown leather gloves, and a light tan jacket. She testified that the man held a 12-15 inch knife pointing up in the air. The robber, who of course was Smith, asked the teller where the vault was and proceeded to follow the teller around the counter to the back room, bypassing an open teller drawer that contained money. Smith ordered the teller into the bathroom and then took his loot from the safe.

From August 11 through August 16, Smith travelled in the white Pontiac to New York and back, along with the friend who had driven him to the bank, the friend who had purchased the car, and a third acquaintance. Towards the end of the trip, Smith ran out of money and unsuccessfully called home to try to get his mother to wire him some cash. Smith also spoke during August to his Wheeler getaway driver about robbing a bank in Holcombe, Wisconsin.

Holcombe is another small town approximately 40 miles from Wheeler. Between 7:30 a.m. and 10:30 a.m. on August 19, 1994, a number of individuals witnessed a white mid-size car with two young white males inside driving slowly in the vicinity of a branch bank in Holcombe. At 10:30 a.m., the lone teller in this bank witnessed a white male in his early twenties enter the bank holding a six-inch knife pointed up in the air. According to the teller, the man was approximately 5' 7", had a medium-to-thin build, wore dark sunglasses with a bandanna tied over his hair, and wore brown gloves and a black leather coat that was tight around the waist. The robber said he was there "to make a withdrawal" and proceeded to go behind the teller counter, open a money drawer, take $15,359 in cash, and then leave the bank. Witnesses outside then observed a slender, six-foot-tall white male wearing a short black coat running south from the bank towards the woods. The white car observed earlier was also seen driving out of town but this time with only one male in it.

Later that day around noon, Smith and the friend who had purchased the Pontiac 6000 bought a van for $3,000. They paid for the van in cash and purchased it from the mother of Smith's getaway driver in the Wheeler robbery. Finally, when Smith was later incarcerated on other charges, he described in some detail his role in both the Wheeler and Holcombe robberies to two fellow inmates, both of whom testified at Smith's trial.

Smith was tried and convicted by a jury. In sentencing Smith, the District Court found an Offense Level of 30 and a Criminal History Category of IV, suggesting a sentence of 135 to 168 months under the United States Sentencing Guidelines (USSG). The District Court imposed a sentence of 168 months and ordered Smith to pay $20,309 in restitution. The calculated Offense Level included a two-point enhancement for obstruction of justice under USSG § 3C1.1. The court enhanced the sentence because it found that Smith perjured himself by testifying at trial that the money he used to buy the van on the day of the Holcombe robbery was in fact money left over from the Wheeler robbery. Smith now appeals.

II. ANALYSIS

A. Admission of Evidence of the Wheeler Robbery

Smith first argues that the District Court should not have admitted evidence of the Wheeler bank robbery at his trial for the Holcombe robbery. The court rejected Smith's motion in limine and admitted the evidence under Federal Rule of Evidence 404(b). We review the admission of the evidence under Rule 404(b) only for an abuse of discretion. United States v. Zapata, 871 F.2d 616, 621 (7th Cir.1989).

Federal Rule of Evidence 404(b) generally prohibits the introduction of a defendant's past crimes as evidence that the defendant acted similarly on a separate occasion. Although a defendant's past criminality may well have some probative worth concerning whether the defendant acted criminally at a later date, the probative value of this evidence will be relatively small and the risk of its misuse by the factfinder will be great. Rule 404(b) thus categorically prohibits evidence of other bad acts offered "to prove the character of a person." See generally Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 100 (2d ed. 1994).

Rule 404(b) makes exceptions, however, for evidence offered to prove specific points other than a defendant's criminal propensity. When who committed a crime is at issue, for example, Rule 404(b) says evidence of other crimes "may be admissible" to show identity. The most common form of evidence offered to prove identity is modus operandi evidence (i.e., evidence that shows a defendant's distinctive method of operation). The Government here offered the Wheeler robbery as evidence of Smith's modus operandi.

This court has combined the requirements of Rule 404(b) and Rule 403 to create a four-prong test that governs the admission of "other acts" evidence. The evidence of the other act must 1) be directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; 2) show that the other act is similar enough and close enough in time to be relevant to the matter in issue; 3) be sufficient to support a jury finding that the defendant committed the similar act; and 4) have probative value that is not substantially outweighed by the danger of unfair prejudice. United States v. Mounts, 35 F.3d 1208, 1214 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1366, 131 L.Ed.2d 222 (1995).

The evidence that Smith committed the Wheeler robbery clearly passes the first prong because the central issue at trial was who robbed the Holcombe bank. The third prong is also easily satisfied because Smith had already pleaded guilty to the Wheeler robbery. The second and fourth prongs, however, raise more nettlesome issues that recur in cases where the prosecution offers modus operandi evidence.

If defined broadly enough, modus operandi evidence can easily become nothing more than the character evidence that Rule 404(b) prohibits. The question is obviously how general a court's focus should be when judging the similarity of criminal acts. We have said that modus operandi evidence must bear "a singular strong resemblance to the pattern of the offense charged," United States v. Shackleford, 738 F.2d 776, 783 (7th Cir.1984), and that the similarities should be "sufficiently idiosyncratic to permit an inference of pattern for purposes of proof," United States v. Hudson, 884 F.2d 1016, 1021 (7th Cir.1989). The focus here, therefore, should be on whether the similarities between the other acts evidence and the charged crime clearly distinguish the defendant from other criminals committing the same crime.

We think that the commonalities of the Wheeler and Holcombe robberies are sufficiently idiosyncratic to uphold the trial court's discretionary decision to admit the evidence of the Wheeler robbery. Numerous similarities make the two robberies clearly distinctive from the thousands of other bank robberies committed each year. First, both robberies were committed by young white males with slender builds. Second, both robbers employed another person to drive them to the bank. Third, both brandished knives (hardly the typical weapon for a holdup man) and held the knives vertically in the air as they robbed the banks. Fourth, both moved behind the bank counter to get...