The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
Defendant moves for an order precluding the Government from
introducing evidence of other similar crimes at trial and further
seeks to preclude cross-examination concerning prior criminal
acts. The pertinent Federal Rules of Evidence (FRE) are 404(b)
Defendant is charged in a four-count Superseding Indictment
with committing four bank robberies: (1) the robbery of a Chase
Bank at 386 Park Avenue South, New York, New York, on April 15,
2003; (2) the robbery of a Chase Bank at 1411 Broadway, New York,
New York, on May 5, 2003; (3) the robbery of a Citibank at 170
West 72 Street in New York, New York, on May 5, 2003; and (4) the
robbery of a Chase Bank at 225 Park Avenue South in New York, New
York, on May 12, 2003. At each robbery, the Government claims
that the defendant robbed the bank by passing a note demanding
money and indicating that he had a bomb.
The Government seeks to introduce evidence of several of
defendant's prior bank robberies, where he robbed banks by claiming to have a bomb. On
August 16, 1988, during his plea to consolidated Indictments
2692-88, 2693-88, and 2694-88 in Supreme Court, Queens County,
the defendant stated that:
(1) on December 11, 1987, at 2:45 p.m., at 35-01, 30th
Avenue in Astoria, New York, the defendant entered
Long Island Savings Bank, threatened to use a bomb,
and took U.S. currency;
(2) on December 18, 1987, at 2:30 p.m., at the
Manufacturers Hanover Trust at 29-21 Queens Boulevard
in Queens, New York, the defendant threatened the
teller with a gun and an alleged bomb, and took U.S.
(3) on March 23, 1988, at about 11:10 a.m., the
defendant entered European-American Bank at 41-80
Main Street in Queens, New York, threatened the
teller with what appeared to be a gun and claimed he
had a bomb, and took U.S. currency. In addition, on January 12, 1989, during his plea to the
consolidated Indictments numbered 2707-88 and 6028-88, in Supreme
Court, New York County, the defendant stated that:
(4) on January 11, 1988, at 2:45 p.m., at
Manufacturers Hanover Bank in New York, New York, the
defendant approached a customer services officer,
stated that he had a bomb and that he wanted money
from the bank;
(5) on February 1, 1988, at 11:15 a.m., the defendant
approached a teller at European-American Bank in New
York, New York, told her that he had a bomb and that
he wanted money from the bank; and
(6) on February 29, 1988, at the National Westminster
Bank in Manhattan, the defendant forcibly attempted
to steal money from an employee of the bank.
(7) on February 29, 1988, at Manufacturers Hanover
Bank in New York, New York, the defendant approached
a customer services officer, stated that he had a
bomb and that he wanted money from the bank.
In his Affirmation of August 18, 2004 in support of this
motion, defense counsel states that defendant "is claiming that
he did not do the acts at all." (Michael Young Aff., p. 2). Thus,
the defense has placed identity in issue and, as the Government
argues, it must prove the identity of the bank robber as to each
of the four robberies charged.
Evidence of other criminal activity "is not admissible to prove
the character of a person" or to prove propensity but "[i]t may . . . be admissible for other purposes, such as proof of . . .
identity. . . ." FRE 404(b). This has long been the rule in
criminal prosecutions in the United States. It dates back to the
famous New York Court of Appeals case, People v. Molineux,
168 N.Y. 264 (1901). So long as the probative value of the other
evidence is not outweighed by the risk of unfair prejudice, such
other evidence is permitted. FRE 403, 404(b); see Huddleston
v. United States, 485 U.S. 681, 685-87 (1988).
Second Circuit cases recognize that evidence of similar prior
bank robberies may be admitted to prove modus operandi or
identity in a bank robbery case. United States v. Sappe,
898 F.2d 878, 879-80 (2d Cir. 1990) (evidence concerning defendant's
prior bank robberies involving a toy gun hidden in newspaper
admissible in bank robbery prosecution); United States v.
Danzey, 594 F.2d 905, 910-11 (2d Cir. 1979) (evidence that
defendant previously pleaded guilty to bank robberies in which he
used similar clothing, performed similar actions inside the bank,
and made a similar getaway "plainly relevant" in bank robbery
prosecution). Here, defendant is charged with robbing a series of banks, in
New York City, within weeks of each other, each time threatening
the use of a bomb and demanding money. Evidence that in the past
he robbed other banks, in New York City, committing the robberies
within weeks of each other, threatening the use of a bomb and
demanding money, tends to suggest that the defendant was the
person who committed the robberies charged in the Indictment. In
other words, this evidence goes to the issue of identity.
Evidence of some of the earlier robberies is also admissible
pursuant to Rule 403. The proffered evidence is relevant to
identity. Because identity is the central issue in this case, the
probative value of the evidence is high. There is no danger of
unfair prejudice as to the prior robberies. They were no more
"inflammatory" than the charged conduct, the standard for "unfair
prejudice" that has been applied by the Second Circuit. See
United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992)
(Rule 403 did not preclude evidence of prior narcotics
transactions that "did not involve conduct any more sensational
or disturbing" than the charged crime (citation omitted)); United States v.
Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (404(b) evidence
not unfairly prejudicial where it "did not involve conduct any
more sensational or disturbing than the crimes with which [the
defendant] was charged" (citation omitted)); United States v.
Vargas, 702 F. Supp. 70, 73 (S.D.N.Y. 1988) (evidence of a
stabbing homicide excluded in drug case because of the
"inflammatory effect on the jury").
The Government in a footnote at p. 4 of their letter submission
states it "would not object to redaction of those references" to
the use of a gun in the robberies I have denoted (2) and (3)
above (the Queens robberies of December 18, 1987 and March 23,
1988). This is too cute by far. The gun in those two robberies
makes them to a degree dissimilar and removal of the reference to
the gun would distort the picture. The gun in robberies (2) and
(3) was there and redacting it would tailor the case to meet the
Government's theory. That is not fair.
Robberies (1) (December 11, 1987), (4) (January 11, 1988), (5)
(February 1, 1988) and (7) (February 29, 1988) are admissible on
the issue of identity. As noted above, robberies (2) and (3) are not admissible nor is attempted robbery (6) at the
National Westminster Bank (there was no mention of a bomb in that
plea allocution). The plea minutes from Queens (J. Rotker) and
New York Court (J. Carey) are to be redacted so that the four
admissible robberies are before the jury in proper form.
As to the FRE 609 objection, I note that Second Circuit
decisions have permitted cross-examination relating to such
convictions and the time frame of FRE 609(b) is complied with
here because the defendant was incarcerated within the last ten
years for robberies (1) through (7), supra p. 3-4. United
States v. Oliver, 626 F.2d 254, 264 (2d Cir. 1980); United
States v. Reed, 572 F.2d 412, 426 (2d Cir. 1978).
Robberies by their very nature involve dishonesty and thus have
an impact on the integrity and credibility of a witness. The
probative value of admitting any robbery conviction, or attempted
robbery conviction "outweighs its prejudicial effect to the
accused." FRE 609(a)(1). All of the robberies numbered (1)
through (7), supra p. 3-5, clear the hurdles of FRE 609(a)(1)
and (2). ...