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04-2793 U.S. v. Owens

By: dmc-admin//September 26, 2005

04-2793 U.S. v. Owens

By: dmc-admin//September 26, 2005

“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 ‘wheelman.’ 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 the government’s participation and control argument a nonstarter.

“[T]he government argues that evidence of the 1995 robbery may be admitted to demonstrate 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 demonstrates 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 customers 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 present crime. While both the 1995 and the 2002 robberies 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).”

Vacated and Remanded.

Appeal from the United States District Court for the Northern District of Illinois, Guzman, J., Williams, J.


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