United States v. Owens, Antonio

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-2793

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTONIO OWENS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 CR 1138-4—Ronald A. Guzman, Judge.

____________

ARGUED APRIL 12, 2005—DECIDED SEPTEMBER 21, 2005

____________

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.

2 No. 04-2793

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 re-

sponded, 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 Ameri-

can 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

No. 04-2793 3

branch located on North Avenue on the west side of Chi-

cago. 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 handwrit-

ten 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 con-

tained one fingerprint belonging to Owens. In addition, a

handwriting expert testified that a comparison of a hand-

writing sample from Owens and the demand note revealed

that Owens wrote the note. The district court, at the govern-

ment’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.

4 No. 04-2793

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 harm-

less, which is to say “only if the error had a substantial

influence over the jury, and the result reached was inconsis-

tent with substantial justice.” United States v. Hernandez,

330 F.3d 964, 969 (7th Cir. 2003).

No. 04-2793 5

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 Admissi-

ble 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 defen-

dant committed the similar act; and (4) the proba-

tive value of the evidence is not substantially

outweighed by the danger of unfair prejudice.

6 No. 04-2793

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 admit-

ted 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 “wheel-

man.” Only then would the evidence of the 1995 robbery be

putatively admissible to establish his participation and

control of the instant offense. But that is not the defense

Owens chose to mount. His is an alibi defense, rendering

No. 04-2793 7

the government’s participation and control argument a non-

starter.

In the alternative, the government argues that the past

bad act evidence was properly admitted to prove absence of

accident or mistake. Prior bad act evidence may be admit-

ted “as proof of an element of a crime, such as intent, if the

act demonstrates how the defendant’s behavior

was purposeful rather than accidental.” United States v.

Brown, 34 F.3d 569, 573 (7th Cir. 1994); see also United

States v. Best, 250 F.3d 1084, 1089 (7th Cir. 2001). How-

ever, 18 U.S.C. § 2113(a) is a general intent crime, and thus

specific intent need not be proven to establish the instant

offense. See Carter v. United States, 530 U.S. 255, 270

(2000) (holding that 18 U.S.C. § 2113(a) is not a specific

intent crime); United States v. Fazzini, 871 F.2d 635 (7th

Cir. 1989) (rejecting defendant’s diminished capacity

defense to 18 U.S.C. § 2113 charges because “armed bank

robbery is a general intent crime . . . and diminished

capacity is a defense only to specific intent crimes.”)

(emphasis in original). And where specific intent is not an

essential element—as in the case of general intent

crimes—evidence of past bad acts shall not be admitted to

prove such intent unless the government has reason to

believe that the defendant will place it in issue. United

States v. Shackleford, 738 F.2d 776, 781 (7th Cir. 1984)

(“[W]hen intent is only a formal issue, so that proof of the

proscribed act gives rise to an inference of intent, then

unless the government has reason to believe that the

defense will raise intent as an issue, evidence of other acts

directed toward this issue should not be used in the govern-

ment’s case-in-chief and should not be admitted until the

defendant raises the issue.”), modified on other grounds by

Huddleston v. United States, 485 U.S. 681, 685 (1988).

Thus, the absence of accident or mistake is not a matter in

issue here unless Owens made it one.

Here, the government argues that Owens did place

8 No. 04-2793

accident in issue by arguing that his fingerprint landed

on the demand note only by coincidence—that the note

paper belonged to the defendant but was taken by Davis for

commission of the robbery without his knowledge. Toward

that end, the government contends that the evidence of the

1995 robbery, which suggests that Owens robbed the same

bank by sliding a similar note to a teller in similar fashion,

tends to disprove Owens’s claim of accidental association

with the note here. We cannot accept this argument. That

Owens allegedly committed a robbery at the same bank

seven and a half years earlier does absolutely nothing to

prove or disprove how Owens’s fingerprint ended up on a

note used to rob the bank victimized here. This prior bad

act that he may or may not have committed does not make

him any more or less likely to have intentionally touched

and penned the demand note used in the charged offense.

If the issue of absence of accident or mistake was placed in

issue at all, this evidence of the 1995 robbery has done

nothing to address it. Rather, the only value of such

evidence is to show the defendant’s propensity to commit

crime, and that value, if it ever held currency, went bank-

rupt long ago.

In yet another alternative, the government argues that

evidence of the 1995 robbery may be admitted to demon-

strate Owens’s knowledge of the Harris Bank branch that

was robbed, and to explain why he chose to target that

branch. It argues Owens’s alleged prior robbery demon-

strates that he knew the bank well enough to decide that it

was a better target for Davis—i.e., proving how he

knew that the branch had more African-American custom-

ers and that Davis would feel more comfortable there.

However, knowledge is not in any way at issue in this

case—either as an element of the crime or in rebuttal to

a defense. Furthermore, even if knowledge was in issue, the

evidence of the 1995 robbery does not demonstrate

any special knowledge of the bank used to commit the

No. 04-2793 9

present crime. While both the 1995 and the 2002 rob-

beries were committed in substantially the same way, in

that both involved the use of a demand note, the same

may be said of most all bank robberies. Thus, even with

an unwarranted assumption of relevance getting it past

prong one of our Rule 404(b) inquiry, this evidence

could not overcome prong four: its probative value is

quite slight, while its danger of inspiring unfair prejudice is

great.

As the evidence of the 1995 robbery is not directed toward

establishing any matter in issue other than the defendant’s

propensity to commit the crime charged, it is not admissible

under Rule 404(b).

2. Evidence of the Prior Robbery Is Not Intricately

Related To Charged Offense

As an alternative basis for admission of past bad act

evidence, the government argues that the 1995 robbery is

“intricately related” to the charged crime. “Evidence of

other acts which are ‘intricately related to the facts of the

case’ is admissible without reference to Rule 404(b),

provided that it passes the balancing test under Rule 403.”

United States v. Hargrove, 929 F.2d 316, 320 (7th Cir.

1991). Such intricately related evidence includes informa-

tion necessary to provide the jury with a complete story

of the crime on trial, Ramirez, 45 F.3d at 1102; United

States v. Roberts, 933 F.2d 517, 520 (7th Cir. 1991), to avoid

a conceptual or chronological void, United States v. Lahey,

55 F.3d 1289, 1295-96 (7th Cir. 1995); United States v.

Hattaway, 740 F.2d 1419, 1424-25 (7th Cir. 1984), or to

explain the basis of relevant relationships between co-

conspirators, United States v. Zarnes, 33 F.3d 1454, 1469

(7th Cir. 1994).

Here, the government contends that the 1995 robbery

is inextricably intertwined with Davis’s narrative of the

10 No. 04-2793

2002 robbery—in particular, the moments leading up to the

robbery—and is part and parcel of testimony crucial to

establishing that Owens, contrary to his alibi defense,

robbed the bank as charged. The government further argues

that the evidence lends crucial credibility to Davis—its star

witness—by serving as one of several explicit details

recalled by Davis from a pre-robbery conversation that

Owens, by virtue of his alibi defense, claims never occurred.

And finally, the government contends that the evidence of

the prior robbery completes the story of the crime on trial

by explaining how Owens chose the bank, and how he knew

particular facts about the bank that he would use to

reassure Davis before the crime.

Each of the government’s arguments succeed in highlight-

ing an intricately related element to Davis’s story—but that

element is not Owens’s alleged involvement in the 1995

robbery. Rather, it is his familiarity with the targeted

branch, and to a lesser extent the basis for that familiarity,

that is inextricably intertwined with the narrative the

government wants to tell. Toward that end, all the govern-

ment needed was testimony from Davis to the effect that

Owens had expressed familiarity with the robbed branch

based on the (ambiguous) fact that he had been there

before. Had the government shown such self-restraint, it

would have just as effectively completed its narrative of the

crime, provided sufficient detail of the pre-robbery conver-

sation so as to bolster Davis’s credibility, and supplied the

basis for Owens’s alleged decision to target that particular

bank. Instead, the government got greedy, invoked the

specter of the 1995 robbery, thereby tainting the record,

inviting the risk of unfair prejudice, and placing its case in

jeopardy. Because it is Owens’s familiarity with the bank,

and not his alleged involvement in the 1995 robbery, that

is intricately related to the charged offense, we find the

evidence of the 1995 robbery to be inadmissible under

this standard as well. And, devoid of any basis for admitting

No. 04-2793 11

this past bad act evidence, we find that the district court

abused its discretion in doing so.

3. Admission of the Past Bad Act Evidence Was

Not Harmless Error

Furthermore, we cannot say that the district court’s error

in admitting this prior bad act evidence was harmless. “The

test for harmless error is whether, in the mind of the

average juror, the prosecution’s case would have been

‘significantly less persuasive’ had the improper evidence

been excluded.” United States v. Eskridge, 164 F.3d 1042,

1044 (7th Cir. 1998). Without the improperly admitted

evidence, the government’s case against Owens consisted of

physical evidence tying him to the demand note, and a

cadre of biased witnesses. While we do not discount the

persuasive weight of the physical evidence, the patent bias

found in each government witness—save those testifying as

to the 1995 robbery—give us great pause. First there is

Davis, the government’s star witness, who testified against

Owens in return for a reduced sentence on two different

crimes; and then there are several of Davis’s closely related

family members and friends. Confronted with this far from

disinterested lineup, the average juror would likely look

elsewhere for evidence to corroborate their accounts. In

such an event, the evidence of Owens’s alleged prior bad act

may very well have taken on a central role in the jury’s

deliberations.

Indeed, the very danger of over-reliance on the past bad

act evidence was made all the more likely by the district

court’s failure to issue a limiting instruction regarding the

proper use of that evidence. Here, both parties and the

court agreed prior to the instruction of the jury that such a

limiting instruction should be given. In fact, the govern-

ment drafted the instruction itself. Yet for some reason, the

12 No. 04-2793

court never provided one. This oversight makes the evil

spawned by the improper admission of the past bad act

evidence all the more glaring.1

The egregiousness of the error is exacerbated further

by the admission of the 1995 lineup photo as part of the

prior bad act evidence. The 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. The picture clearly portrays

Owens as a prisoner in police custody. Not only was this

highly inflammatory piece of inadmissible prior bad act

evidence admitted into evidence, but it also was published

to the jury, and even allowed to accompany the jurors into

deliberations. In the jury room throughout, while jurors

contemplated Owens’s fate, the lineup photo festered as

a constant reminder that Owens had at least once

before been a prisoner, undermining the fairness of the fact-

finding process in its potential to taint the jury’s judgment.

1

Because we find that the prior bad act evidence should never

have been admitted in the first place, we do not reach the issue of

whether the district court should have issued a limiting instruc-

tion regarding such evidence, save for a few words in passing.

True enough, the responsibility for pointing out this omission by

the court falls squarely on the shoulders of defense counsel, see,

e.g., United States v. McKinney, 954 F.2d 471, 479 (7th Cir. 1992)

(holding that a defendant who fails to request a limiting instruc-

tion at trial cannot complain on appeal that such an instruction

was not given), and in that regard, Owens’s attorney failed his

client. But it is a surprise to find the government, which, as

drafter of the omitted limiting instruction, was clearly aware of

the past bad act evidence’s prejudicial potential, willing to

jeopardize its own case by not itself ensuring that such an

instruction be given. While we cannot say that the government

shares the obligation to point out the oversight, it is fair to posit

that its failure to do so now and in the future is done at its own

peril.

No. 04-2793 13

See Estelle v. Williams, 425 U.S. 501, 503-05 (1976) (finding

that a “constant reminder of the accused’s condition implicit

in such distinctive, identifiable attire [prison clothes] may

affect a juror’s judgment,” and thereby unacceptably

“undermine the fairness of the fact-finding process”).

With such potent, and improper, evidence removed from

the jury’s consideration, the government’s case against

Owens—consisting only of Davis, Davis’s family and

friends, and a sole fingerprint—would be significantly less

persuasive in the mind of an average juror. For that reason,

we find that the district court’s abuse of discretion in

admitting that prior bad act evidence was not harmless

error.

III. CONCLUSION

For the foregoing reasons, we VACATE the defendant’s

conviction and REMAND his case for a new trial.

MANION, Circuit Judge, concurring. I concur in the result

reached by the court, but on narrower grounds. I too have

serious concerns about the lineup photograph introduced

into evidence and published to the jury, and I would

remand the matter to the district court based exclusively on

the prejudicial impact of the photograph.

The government introduced the lineup photograph during

testimony about the 1995 robbery. Specifically, a police

officer testified that a witness in 1995 identified Owens as

the robber using the lineup photograph. However, that

witness already testified at trial that she had identified

14 No. 04-2793

Owens in 1995. The very limited probative value of this

photograph was far outweighed by its prejudicial impact on

the jury. The photograph, which the jury possessed while

deliberating, showed six black men seated side-by-side

holding identification numbers. All were dressed in obvious

prison garb, were barefooted, and wore a beret. Owens sat

at attention, staring wide-eyed at the camera. The other

five were relaxed, looking bored and disinterested. Clearly

Owens was the only one in the lineup of prisoners who had

any concern with the purpose of the lineup. As the Supreme

Court recognized in Estelle v. Williams, 425 U.S. 501, 504-

05 (1976), “the constant reminder of the accused’s condition

in such distinctive identifiable attire may affect a juror’s

judgment.” The lineup photograph simply could not satisfy

the strictures of Fed.R.Evid. 403, which provides that

“[a]lthough relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger

of unfair prejudice . . .” The prejudice from the lineup

photograph was too great.

However, I cannot conclude that the introduction of

all evidence of the 1995 robbery constituted an abuse

of discretion. While prior bad acts evidence is generally

prohibited, it can be introduced when it is intricately

related to the charged crime. See United States v. Hargrove,

929 F.2d 316, 320 (7th Cir. 1990). To qualify as intricately

related, “the question is whether the evidence is properly

admitted to provide the jury with a ‘complete story of the

crime [on] trial,’ whether its absence would create a ‘chrono-

logical or conceptual void’ in the story of the crime, or

whether it is ‘so blended or connected’ that it incidentally

involves, explains the circumstances surrounding, or tends

to prove any element of, the charged crime.” United States

v. Ramirez, 45 F.3d 1096, 1102 (7th Cir. 1995) (internal

citations omitted). Of course, even intricately related

evidence must still pass muster under Fed. R. Evid. 403.

The evidence of the 1995 robbery is intricately related

No. 04-2793 15

to the present crime because it tells the rest of the

story. Owens claims he was washing someone’s car at the

time of the robbery. Thus the robbery was all Princeten

Davis’s doing. Davis, however, testified that Owens picked

a Banco Popular branch as the initial target, but after

entering, Davis discovered he was the only black person in

the bank. Because he thought he was conspicuous, he lost

his nerve and left. So what was it about the Harris Bank

that enabled Davis to regain his nerve and complete the

robbery? The court suggests that all the government needed

was testimony from Davis to the effect that “Owens had

expressed familiarity with the robbed branch based on the

(ambiguous) fact that he had been there before.” But

because the government “got greedy [and] invoked the

specter of the 1995 robbery,” it tainted the record and

invited unfair prejudice. But without reference to the

robbery, Davis’s reason for his change of heart is not

complete. To some extent, Owens had some familiarity with

the Banco Popular branch. Familiarity wasn’t enough.

Davis regained his nerve to rob the Harris Bank when

Owens observed that the Harris Bank had more black

patrons and Owens had previously robbed that bank. In

addition to explaining why Davis regained his nerve, it also

enhanced his credibility when testifying that Owens was

intricately involved in the 2002 Harris robbery. When the

government introduced evidence that Owens had in fact

previously robbed the Harris Bank branch, it helped

authenticate Davis’s claim that Owens told him about that

robbery.

Further, this evidence satisfies the requirements of

Fed. R. Evid. 403. The high probative value of the evidence

helps explain why they chose the Harris Bank, how Davis

regained his nerve, and whether he was telling the truth.

This evidence is not substantially outweighed by a danger

of unfair prejudice. See Hargrove, 929 F.2d at 320 (“Any

prejudice from this testimony resulted solely from its

16 No. 04-2793

tendency to link Hargrove to the [crime] and was not

unfair.”).

In short, in my view the district court properly decided

that the evidence of the 1995 robbery by Owens was

necessary to fill a void in the story of what happened in

2002. But I agree with the court that the flagrant lineup

photograph magnified Owens’ criminal past and his propen-

sity to repeat the crime.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-21-05