United States v. Regenwether, No. CR 00-3048-MWB (N.D. Iowa 5/11/2001)

• Decision Date: 11 May 2001
• Docket Number: No. CR 00-3048-MWB.,CR 00-3048-MWB.
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JEDEDIAH W. REGENWETHER, Defendant.
• Court: U.S. District Court — Northern District of Iowa

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UNITED STATES OF AMERICA, Plaintiff, v. JEDEDIAH W. REGENWETHER, Defendant.

No. CR 00-3048-MWB.

United States District Court, N.D. Iowa, Central Division.

May 11, 2001.

ORDER REGARDING GOVERNMENT'S MOTION IN LIMINE

MARK W. BENNETT, Chief District Judge.

I. INTRODUCTION AND BACKGROUND

On October 27, 2000, a five-count indictment was returned against defendant Jedediah W. Regenwether charging him with two counts of bank robbery, in violation of 18 U.S.C. § 2113(a), two counts of solicitation of a crime of violence, in violation of 18 U.S.C. § 373(a), and conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371. Trial in this case is scheduled to commence on May 21, 2001. The charges in this case arise out of defendant Regenwether's alleged involvement in three bank robberies that were committed in September, October, and November of 1999 (collectively, "the 1999 robberies" unless otherwise indicated).¹ On April 26, 2001, the government filed its motion in limine. In its motion in limine, the government seeks to offer evidence of defendant Regenwether's involvement in three bank robberies that occurred in January and March of 1998 (collectively, "the 1998 robberies" unless otherwise indicated).² The government contends that evidence of defendant Regenwether's involvement in the 1998 robberies constitutes "intrinsic" evidence of defendant Regenwether's involvement in the offenses charged in this case. The government also argues that evidence of defendant Regenwether's involvement in the 1998 robberies is admissible under Federal Rule of Evidence 404(b) to show proof of identity. Defendant Regenwether has filed a timely response to the government's motion. Defendant Regenwether argues that the evidence of his involvement in the 1998 robberies does not constitute intrinsic evidence. He further argues that the probative value of this evidence's is substantially outweighed by its prejudicial value and thus is inadmissible under Rule 404(b).

II. LEGAL ANALYSIS

A. Intrinsic Evidence

As noted above, the government contends that evidence of defendant Regenwether's involvement in the 1998 robberies constitutes intrinsic evidence of the charged offenses here. The Eighth Circuit Court of Appeals has instructed that

evidence of other crimes is admissible for the purpose of providing the context in which the crime occurred. We have sometimes called this evidence "res gestae" or "intrinsic" evidence. United States v. Moore, 735 F.2d 289, 292 (8th Cir. 1984). We have explained that when "evidence of other crimes is `so blended or connected, with the one[s] on trial as that proof of one incidentally involves the other[s]; or explains the circumstances thereof; or tends logically to prove any element of the crime charged,' it is admissible as an integral part of the immediate context of the crime charged." United States v. Bass, 794 F.2d 1305, 1312 (8th Cir.) (quoting United States v. Derring, 592 F.2d 1003, 1007 (8th Cir. 1979)), cert. denied, 479 U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159 (1986).

United States v. Forcelle, 86 F.3d 838, 841 (8th Cir. 1996) (footnote omitted). "Rule 404(b) governs the admission into evidence of `other crimes, wrongs, or acts.' The rule applies only to `extrinsic' and not to `intrinsic' evidence." United States v. Swinton, 75 F.3d 374, 377 (8th Cir. 1986); see United States v. O'Dell, 204 F.3d 829, 833 (8th Cir. 2000); United States v. Billingsley, 160 F.3d 502, 505 (8th Cir. 1998); United States v. Heidebur, 122 F.3d 577, 579 (8th Cir. 1997); United States v. Severe, 29 F.3d 444, 447 (8th Cir. 1994); United States v. Oakie, 12 F.3d 1436, 1441-42 (8th Cir. 1993); United States v. Bass, 794 F.2d 1305, 1312 (8th Cir.), cert. denied sub nom. Price v. United States, 479 U.S. 869 (1986); United States v. DeLuna, 763 F.2d 897, 913 (8th Cir.), cert. denied, 474 U.S. 980 (1985).

Here, the government asserts that the evidence about the 1998 robberies constitutes an integral part of the operative facts of the 1999 robberies and as such constitutes intrinsic evidence. As the Eighth Circuit Court of Appeals pointed out in Forcelle:

In those cases in which we have approved the use of other crimes evidence as an integral part of the context of the crime charged, the other crime evidence was closely or inextricably intertwined with the charged crime. See, e.g., United States v. Severe, 29 F.3d 444, 447 (8th Cir. 1994) (evidence of drug delivery "inextricably intertwined" with the conspiracy charge), cert. denied, ___ U.S. ___, 115 S.Ct. 763, 130 L.Ed.2d 660 (1995); Bass, 794 F.2d at 1313 (evidence was "closely intertwined with the entire criminal transaction"). We have often explained the other crime evidence "completes the story" or provides a "total picture" of the charged crime. See, e.g., Ball, 868 F.2d at 988 (evidence gave jury a "total picture" of defendant's state of mind).

Forcelle, 86 F.3d at 842.

Here, the court concludes that although the issue is close, the evidence concerning defendant Regenwether's involvement in the 1998 robberies is intrinsic to the crimes charged in the indictment because the 1998 robberies are inextricably intertwined with the current charges. Before he was arrested and convicted for the March 13, 1998, robbery of the Boone County Community Credit Union, defendant Regenwether discussed and planned the robbery of the Security State Bank in Radcliffe with James Olszewski. These alleged actions form the basis for part of the conspiracy charge found in Count 5 of the Indictment.³ Moreover, the government asserts that defendant Regenwether used his involvement in the 1998 robberies to recruit Olszewski and Benjamin Michael Kirk to join the conspiracy to rob the Radcliffe bank. The government further asserts that defendant Regenwether used his involvement in the 1998 robberies to train Olszewski and Kirk in the art of bank robbery. Through these alleged actions the government proposes to prove elements of one of the counts of bank robbery, Count 1, and one of the counts of solicitation of a crime of violence, Count 2. Thus, the court finds that evidence of defendant Regenwether's involvement in the 1998 robberies is intrinsic to the crimes charged here and are admissible. Therefore, the government's Motion in Limine is granted.

B. Rule 404(b)

Having concluded that defendant Regenwether's involvement in the 1998 robberies is admissible as intrinsic evidence, the court need not consider whether such evidence is admissible under Federal Rule of Evidence 404(b). Nonetheless, assuming arguendo that evidence of Regenwether's involvement in the 1998 robberies is not intrinsic evidence, but extrinsic evidence, the court will consider the question of whether this evidence is admissible under Rule 404(b). Federal Rule of Evidence 404(b) "governs the admission into evidence of `other crimes, wrongs, or acts.' The rule applies only to `extrinsic' and not to `intrinsic' evidence." United States v. Swinton, 75 F.3d 374, 377 (8th Cir. 1986); see O'Dell, 204 F.3d at 833; United States v. Oakie, 12 F.3d 1436, 1441-42 (8th Cir. 1993); United States v. Severe, 29 F.3d 444, 447 (8th Cir. 1994); United States v. Bass, 794 F.2d 1305, 1312 (8th Cir.), cert. denied sub nom. Price v. United States, 479 U.S. 869 (1986); United States v. DeLuna, 763 F.2d 897, 913 (8th Cir.), cert. denied, 474 U.S. 980 (1985).

"Rule 404(b) is a rule of inclusion, permitting admission of other crimes evidence unless the evidence tends to prove only the defendant's criminal disposition." United States v. Campa-Fabela, 210 F.3d 837, 840 (8th Cir. 2000); see United States v. Dobynes, 905 F.2d 1192, 1195 (8th Cir. 1990). As the Eighth Circuit Court of Appeals has instructed: "[e]vidence of prior bad acts is not admissible under Rule 404(b) `solely to prove the defendant's criminal disposition,' United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995), but is admissible to show `proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.'" United States v. Hardy, 224 F.3d 752, 756-57 (8th Cir. 2000); accord Forcelle, 86 F.3d at 843 (noting that Rule 404(b) "allows the use of evidence about `other crimes, wrongs, or acts' if it has a bearing on any relevant issue other than the defendant's propensity toward criminal activity."); see United States v. Powell, 39 F.3d 894, 896 (8th Cir. 1994); United States v. Kern, 12 F.3d 122, 124 (8th Cir. 1993). Here, the government is also offering the 1998 robbery evidence to prove identity.

The Eighth Circuit Court of Appeals has pointed out:

Other acts evidence is not excluded by Rule 404(b) if it is: (1) relevant to a material issue raised at trial; (2) similar in kind and close in time to the crime charged; (3) supported by sufficient evidence to support a jury finding that the defendant committed the other act; and (4) its probative value is not substantially outweighed by its prejudicial value. United States v. Heidebur, 122 F.3d 577, 588 (8th Cir. 1997); accord United States v. Rush, 240 F.3d 729, 730 (8th Cir. 2001); United States v. Green, 151 F.3d 1111, 1113 (8th Cir. 1998); United States v. Emmanuel, 112 F.3d 977, 981 (8th Cir. 1997); Forcelle, 86 F.3d at 843; United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995); United States v. DeAngelo, 13 F.3d 1228, 1231 (8th Cir.), cert. denied, 512 U.S. 1224 (1994); Kern, 12 F.3d at 124-25. The court will consider each of these four requirements seriatim.

1. Relevance, Similarity, and Timeliness

Here, the government argues that the 1998 robbery evidence is directly relevant to the issue of identity. In United States v. Carroll, 207 F.3d 465, 469 (8th Cir. 2000), the Eighth Circuit Court of Appeals instructed that:

In sum, in order to admit Rule 404(b) identity evidence on the signature facts or modus operandi theory, the District Court must make a threshold determination that, based solely on the evidence comparing the past acts and the charged...