# United States v. Antonio Owens > Court of Appeals for the Seventh Circuit · September 21, 2005 · 424 F.3d 649 URL: https://www.frixlaw.com/law-library/cases/9498387 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Antonio OWENS, Defendant-Appellant - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** September 21, 2005 - **Citations:** 424 F.3d 649; 68 Fed. R. Serv. 364; 2005 U.S. App. LEXIS 20198; 2005 WL 2291737 - **Precedential status:** Published - **Opinion:** Concurrence by Manion - **Judges:** Manion, Rovner, Williams - **Cited by:** 46 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/9498387 ## Opinion text 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 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 *658 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 , 96 S.Ct. 1691 , 48 L.Ed.2d 126 (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 “[although 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 ‘chronological 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 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 Ban-co 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 tendency to link Hargrove to the [crime] and was not unfair.”). *659 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 propensity to repeat the crime. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9498387. Public record. Not legal advice.