# United States v. Phillip L. Nolan

> Court of Appeals for the Seventh Circuit · August 24, 1990 · 910 F.2d 1553

URL: https://www.frixlaw.com/law-library/cases/9480687

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Phillip L. NOLAN, Defendant-Appellant
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** August 24, 1990
- **Citations:** 910 F.2d 1553; 31 Fed. R. Serv. 36; 1990 U.S. App. LEXIS 14771; 1990 WL 121414
- **Precedential status:** Published
- **Opinion:** Concurrence by Cudahy
- **Judges:** Cudahy, Coffey, Manion
- **Cited by:** 55 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9480687

## How later opinions describe it (automated extraction)

- concluding that the use of a stolen vehicle during a bank robbery was relevant to show the defendant’s plan to commit the offense because a jury could reasonably infer that a stolen vehicle was used for the purpose of avoiding identification

## Opinion text

CUDAHY, Circuit Judge,
concurring:
I generally agree with the majority’s analysis, but I think Part III might benefit from additional scrutiny. The majority says that the admission by Nolan himself concerning the other 17 bank robberies, as part of a sort of “general confession,” qualifies as “bad acts” testimony going to Nolan’s identity. This testimony is unusual evidence of Nolan’s modus operandi since it has no independent evidentiary basis beyond Nolan’s own hearsay statement. Ordinarily, proof of bad acts comes from a source other than the defendant’s own admission or confession. For example, there may be past criminal convictions or the testimony of other witnesses that the defendant has committed similar crimes, employing the same (somewhat unusual) technique. Cf. United States v. Hudson, 884 F.2d 1016 (7th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 3221 , 110 L.Ed.2d 668 (1990). The technique or method is the “signature” of the perpetrator and tends to show that the perpetrator is the defendant.
Here the defendant himself in a statement to a fellow prisoner implicated himself in the current crime and proceeded to embroider his criminal history by telling of the 17 like crimes he had committed. It is difficult to see how this tends to “identify” him much more than his “implication” in the crime in question has already done. Of course, if the police have records of the other 17 crimes and can match them up with the defendant’s account, that would be probative of the credibility of witness Hall. Also, if Nolan does not describe the method used in the crime for which he is being prosecuted but does describe a like method he says he has used in 17 other crimes, those circumstances would help establish identity. In the present case, it seems to me that the evidence of the 17 other crimes may show principally that Nolan is a serial bank robber and has a propensity to rob banks employing a consistent methodology.
Ordinarily, a district court is required to determine whether character evidence is relevant towards establishing identity, intent or some other permissible matter besides propensity. In Hudson , this court observed that character evidence may be admitted under Federal Rule of Evidence 404(b) if (1) the evidence sought to be admitted goes to a matter other than the defendant’s propensity to commit the crime charged; (2) the other act is sufficiently close in similarity and time to be relevant; (3) there is evidence sufficient to support a finding by the jury that the defendant committed the similar act; and (4) the probative value of the evidence outweighs its prejudicial effect. Hudson, 884 F.2d at 1018 -19 (citing Huddleston v. United States, 485 U.S. 681 , 108 S.Ct. 1496 , 99 L.Ed.2d 771 (1988); United States v. Shackleford, 738 F.2d 776 (7th Cir.1984)). Because the sidebar conference was not transcribed, there is some question whether the district court applied the Hudson test (particularly parts 2 and 3 of the test) to Hall’s testimony about Nolan’s admission. In any event, I am persuaded that any error the district court may have committed in admitting the evidence regarding the 17 other bank robberies was harmless in light of the substantial evidence of Nolan’s involvement in the present crime.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9480687. Public record. Not legal advice.