[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-16344 SEPTEMBER 11, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-80074-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN ALLEN DUPREE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 11, 2007)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
John Allen Dupree appeals his conviction for bank robbery, a violation of 18
U.S.C. § 2113(a). On appeal, Dupree argues that the district court erred on the
following grounds: (1) by admitting, pursuant to Rule 404(b) of the Federal Rules
of Evidence, evidence of a 1996 bank robbery to which he pled guilty, for the
purpose of establishing identity; (2) by admitting the testimony of both a U.S.
Marshal and an investigating detective, neither of whom were present at the scene
of the robbery, in violation of Rule 602 of the Federal Rules of Evidence; (3) by
admitting evidence about an out-of-state witness’s identification of Dupree in a
photo lineup, in violation of his rights under the Confrontation Clause; and (4) by
miscalculating the restitution amount. The government concedes error on the last
issue. After careful review of the record and the parties’ briefs, we vacate and
remand for the limited purpose of correcting a $43 discrepancy in the restitution
order. In all other respects, we affirm.
We review the district court’s decision to admit evidence of prior crimes
under Rule 404(b) for a clear abuse of discretion. United States v. Clemons, 32
F.3d 1504, 1508 (11th Cir. 1994).
We normally review the district court’s evidentiary rulings for an abuse of
discretion. United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006), cert.
denied, 127 S. Ct. 990 (2007). However, when an appellant fails to object below
on the grounds asserted on appeal, we review for plain error only. See United
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States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003).1 Under the plain error
standard, Dupree “must show that: (1) an error occurred; (2) the error was plain;
(3) it affected his substantial rights; and (4) it seriously affected the fairness of the
judicial proceedings.” See Gresham, 325 F.3d at 1265. An error cannot be plain
unless the error is “clear under current law.” United States v. Aguillard, 217 F.3d
1319, 1321 (11th Cir. 2000).
We review de novo whether a defendant suffered a deprivation of his rights
under the Confrontation Clause; however, a Confrontation Clause violation does
not require remand if the error is harmless “beyond a reasonable doubt.” See
United States v. Mills, 138 F.3d 928, 937-38 (11th Cir. 1998).
The relevant facts are these. On May 6, 2006, Dupree was indicted for
robbing a bank that had deposits insured by the Federal Deposit Insurance
Corporation, in violation of 18 U.S.C. § 2113(a). Prior to trial, the government
disclosed its intention to present evidence, pursuant to Fed. R. Evid. 404(b), that
1
In order to preserve an issue for appeal, a defendant must “raise an objection that is
sufficient to apprise the trial court and the opposing party of the particular grounds upon which
appellate relief will later be sought”; however, “[a] general objection or an objection on other
grounds will not suffice.” United States v. Dennis, 786 F.2d 1029, 1042 (11th Cir. 1986). In his
second issue, Dupree asserts error based on Rule 602 and based on improper bolstering due to a
witness’s identification as a law enforcement officer. Although he objected at trial to the testimony
that is at issue in claim two, he did not assert error based on Rule 602. Therefore, we review that
portion of his argument for plain error only. As to his claim of improper bolstering, we discern no
abuse of discretion.
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Dupree had committed a prior bank robbery in 1986 and three prior bank robberies
in 1996.
At trial, Dawn Kowalak, Bank of America’s regional manager of corporate
security, testified that she investigated a January 13, 2006 incident during which
one of the bank’s branches was robbed, and determined that $2,157 was taken.
Bank teller Karen Morales testified that, on that date, a man came to her window,
and, as was her custom, she greeted him and looked at his face. She testified that
the man then pointed down at a deposit slip, on which he had written “give me the
money, no die [sic] pack, no paint . . . or I blow your head off, . . . 100’s, 50’s and
20’s.” She gave him the money from her teller station, and, after he left, she told
her assistant manager that she had been robbed. In court, she identified Dupree as
the man who had robbed her. The government entered into evidence the deposit
slip that Morales had described, as well as surveillance footage from the robbery.
As the footage was presented, Morales explained that it depicted Dupree going
toward a kiosk at which one could obtain deposit slips, similar to the one presented
into evidence by the government, and other bank documents.
Morales identified the robber in still photographs and surveillance video
taken on the day of the robbery. She testified that she was shocked by the robbery
and remembered it “like it happened yesterday.” She also described how, about a
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month after the robbery, she positively identified Dupree’s photo among a group of
photos of people who “look[ed] like the person who robbed me.” The group of
photos was introduced into evidence. On cross-examination, Morales testified that,
when meeting with police, she described the robber as a black male, who was
clean-shaven and slightly shorter than her (around five feet, six inches tall), and
was wearing a hat, a blue jacket, black sweat pants, and white socks.
Dupree objected to the testimony of the next witness, Nancy Lynn Navitsky,
a U.S. Marshals Service Deputy. He argued that Deputy Navitsky should not be
allowed to say that she had seen the defendant while working in her capacity as a
law enforcement officer, or as part of a “fugitive squad.” In response, the
government explained that Deputy Navitsky was familiar with Dupree because she
had been preparing an arrest warrant for him on a probation violation, and argued
that she should be able to identify her occupation because: (1) the jury would find
it odd if she did not identify her occupation, while other witnesses had; (2) part of
her testimony regarded her special training in identification and naming her
occupation would help to explain why she had that training; and (3) her testimony
was necessary to explain how Dupree ultimately became a suspect.
The district court ruled that Deputy Navitsky could identify her occupation,
describe her training, and testify that she recognized Dupree from a photograph,
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but she could not testify that she had seen Dupree’s photograph while preparing an
arrest file for him or working on a fugitive squad. The court characterized Deputy
Navitksy’s testimony as “lay opinion,” because it was based on her senses and
perception, but also found that Deputy Navitsky’s testimony about her training in
identification techniques was permissible to help explain how she recognized
Dupree. The district court further explained that, in addition to providing evidence
that Dupree was the robber, Deputy Navitsky’s testimony provided an
“explanatory bridge” to explain how local police came into contact with Dupree
after the robbery. Before Deputy Navitsky testified, the district court instructed the
jurors that, although they would hear testimony that a law enforcement officer
possessed a photograph of Dupree, they should not speculate as to why she
possessed the photograph, as Dupree was only on trial for the instant offense.
Deputy Navitsky then testified that, as part of her work for the U.S.
Marshals Service, she had received training in the identification of individuals, as
part of a 14-week criminal investigation school. She testified that, one evening,
she was watching a local news broadcast about the January 13th robbery, and,
upon seeing the surveillance footage, she immediately recognized Dupree as the
robber, based on a photo she had recently seen. She subsequently reported her
identification of Dupree to the Palm Beach County Sheriff’s Office (“PBCSO”).
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Jeff Weissman, a PBCSO detective, testified that, as part of his investigation
of the robbery, he distributed a news release, in which he included still images
taken from the surveillance video of the robbery. Deputy Navitsky subsequently
contacted him and told him that she believed that Dupree was the robber and that
she knew where to find Dupree. Thereafter, Detective Weissman personally met
with Dupree and agreed that he was the person depicted in the surveillance
photographs. Detective Weissman testified that, after his conversation with
Deputy Navitsky, he prepared a photo lineup, which included Dupree’s photo, and
showed the lineup to Frank LaCosta, another bank employee, who positively
identified Dupree. When the government moved to introduce the lineup photos
into evidence, the defense objected on the ground that it violated Dupree’s
confrontation rights. The district court sustained the objection.
Before the government called its next witness, the district court heard
argument on the admissibility, under Rule 404(b), of evidence of Dupree’s four
prior robberies. The government argued that identity was the primary issue at trial
and that, because the previous robberies were highly similar to the present robbery,
the previous crimes were admissible to show identity. More specifically, the
government argued, in each robbery, the robber walked into a bank, unarmed,
wearing a baseball cap, went to the check-writing station, wrote out a note on a
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bank document, got in line, and passed the note to the teller, using similar language
each time. Dupree responded that the prejudice from such evidence would
outweigh its weak probative value, and that the past robberies were “too generic,”
since they involved behavior common to many bank robberies.
The district court found a “remarkabl[e]” similarity among the written notes
in each case, especially the shape of the letter “F”’s on each note, and that in the
robberies, the robber wore a baseball hat, used a bank document for the note, and
carried the money out of the bank in his hands. The district court also recognized
the need to “take appropriate steps to attempt to modify the prejudicial impact” of
the testimony. Thus, the court ruled that the government could introduce evidence
of only one of the four past robberies, reasoning that the jury, if it heard about all
of them, might be “tempted to give up its responsibility” to focus on the instant
robbery, and instead convict Dupree on the basis that, if he “commit[ted] multiple
bank robberies, he probably did this one, too.”
Immediately prior to the admission of evidence of Dupree’s previous
robbery, the district court instructed the jury that “it is a fundamental principle that
somebody is only on trial for the crime that is charged in the indictment,” and
explained that it was admitting evidence of a previous robbery “only for the
purpose of establishing the identity of . . . the person who committed the robbery
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on January 13th, 2006.” The district court further charged the jurors that they
could consider the evidence only if they found that the past robberies and the
robbery on trial were “so distinctive, . . . so idiosyncratic, . . . that you could find
beyond a reasonable doubt that the same person committed both acts.” Moreover,
the court instructed:
[i]t would be 100 percent wrong if the jury just said, well, here is a
prior bank robbery. If he did it before, he probably did it here. That
would be terrible. This evidence cannot be used for that purpose, and
you really need to consciously be aware of that.
The district judge continued to admonish the jury on this point, and then asked the
jurors if they understood his instructions, and they stated “yes.”
Martin Ruiz de Gamboa, a special agent for the Federal Bureau of
Investigations, then testified that, in May 1996, he investigated a bank robbery, in
which the perpetrator (later identified as Dupree), wearing a baseball cap, a t-shirt,
and long pants, went into a bank and wrote a demand note on one of the bank’s
credit card applications. The demand note, which was submitted into evidence,
read “I have a gun. If you value your life, pass the money. No die [sic] pack or
alarm, pass the 20.” Special Agent de Gamboa testified that it was “very unusual”
for a bank robber to write out a demand note in the bank. He stated that “[in] ten
years I don’t think that personally I had more than maybe two cases in which
stationary from the bank was used” for a robbery. Special Agent de Gamboa
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further testified that during the 1996 robbery, Dupree had stood in line like a
regular customer, passed the note to the teller, and walked out of the bank carrying
the money. Dupree had pled guilty and was convicted of the May 1996 robbery.
Special Agent de Gamboa made an in-court identification of Dupree as the May
1996 robber. The government introduced into evidence a certified copy of
Dupree’s 1996 robbery conviction.
Dupree testified in his own defense, the primary theory of which was
misidentification. He stated that he had a beard and mustache at the time of the
instant offense, contrary to Morales’s testimony that the robber was clean-shaven.
Dupree introduced a photograph of himself with a beard and mustache. He
testified that the photo was taken when he was sent to jail on February 6, 2006. It
was Dupree’s theory that he could not have grown a full beard and mustache in the
time between the January 13th robbery and his February 6th admission to jail, and
thus that Morales had misidentified him as the robber. On cross-examination, he
admitted that he pled guilty to the 1996 robbery, as well as to writing the note in
that robbery, though he denied that the handwriting in the 2006 note looked like
his.
During the government’s rebuttal case, Maria Hogans testified that in May
1996, she worked as a teller at Barnett Bank, where she was robbed. She testified
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that a man handed her a note, then told her that he wanted some money and that he
had a gun. Hogan identified the note that the government previously had entered
into evidence, confirming it was the note she had been given. She also testified
that after the robbery, she had positively identified the robber in a photo lineup,
and the photo that she identified as depicting the robber, with her initials below it,
was submitted into evidence. The government also presented surveillance
photographs from the 1996 robbery, in which a man, who Hogans identified as the
robber, stood at a counter writing on a credit card application.
In its instructions to the jury regarding the evidence of Dupree’s previous
bank robbery, the district court again told the jury that it would be “terribly wrong”
to convict Dupree of the present robbery based on the fact that he had committed a
past robbery, and that the jury could convict Dupree based on that evidence only if
it concluded that “the similarities [between the two robberies] are so striking that
the jury can say beyond a reasonable doubt the same person committed both of
these robberies, and that person is Mr. Dupree.” The court admonished the jury
that it was not permitted to use the evidence “for any other purpose.”
The jury found Dupree guilty, as charged, of bank robbery. Based on his
career-criminal classification, a base offense level of 32, and a criminal history
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category VI, Dupree was sentenced to a 216-month term of imprisonment. He also
was ordered to pay $2,200 in restitution. This appeal followed.
First, Dupree challenges the admission of evidence concerning the May
1996 robbery. Federal Rule of Evidence 404(b) provides: “[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. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident . . . .” Fed. R. Evid. 404(b).
Thus, Rule 404(b) permits the admission of prior-bad-acts evidence to show
motive, preparation, knowledge, identity, and intent, as well as an ongoing scheme
or plan. See United States v. Lehder-Rivas, 955 F.2d 1510, 1515-16 (11th Cir.
1992); United States v. Cross, 928 F.2d 1030, 1047-48 (11th Cir. 1991).
In reviewing 404(b) decisions, we apply a three-part test for admissibility of
such evidence: (1) the evidence must be relevant to an issue other than the
defendant’s character; (2) there must be sufficient proof so that a jury could find
that the defendant committed the extrinsic act; and (3) the evidence must have
probative value that is not substantially outweighed by undue prejudice. See
Jernigan, 341 F.3d at 1280. “A similarity between the other act and a charged
offense will make the other offense highly probative with regard to a defendant’s
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intent in the charged offense.” United States v. Ramirez, 426 F.3d at 1344, 1354
(11th Cir. 2005). When using 404(b) evidence of a past crime to show identity,
“the likeness of the offenses is the crucial consideration. The physical similarity
must be such that it marks the offenses as the handiwork of the accused. In other
words, the evidence must demonstrate a modus operandi.” United States v. Miller,
959 F.2d 1535, 1539 (11th Cir. 1992) (quotation omitted).
Here, Dupree concedes that the government met the first two criteria under
Rule 404(b): (1) that the evidence was admitted to establish identity, which is a
proper purpose, and (2) that the prior crime occurred. However, he argues, under
the third prong, that the government did not show the probative value of the
evidence outweighed its potential for prejudice. Dupree says that because there
was no “unique signature” to his previous crime, the similarities between the
robberies were insufficient to be substantially probative of his identity. He also
argues that because the prior crime was “very similar” to the present robbery, the
potential for prejudice was high.
The district court found many similarities between the perpetrators of both
robberies, as well as a “remarkabl[e]” similarity among the written notes in each
case, especially the shape of the letter “F”’s in each note. Moreover, the court
noted the fact that the robber used a bank document each time -- a point that was
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substantiated by the testimony of Special Agent de Gamboa, who testified that he
had investigated between 40 and 50 bank robberies and found it was “very
unusual” for a bank robber to write out a demand note in the bank. Indeed, as he
put it, “[in] ten years I don’t think that personally I had more than maybe two cases
in which stationary from the bank was used” for a robbery. Moreover, de Gamboa
testified that, in his experience, he had never before seen the exact combination of
factors present in Dupree’s robberies.
In addition to the district court’s findings on the similarities of the robberies,
the court issued clear, strict instructions to the jury to use the evidence only “for a
very, very limited purpose,” which was to allow the jury to decide whether the
previous robbery and the instant one were “so distinctive, . . . so idiosyncratic, . . .
that you could find beyond a reasonable doubt that the same person committed
both acts.” The district court issued these special instructions twice, once before
the evidence was admitted at which point the jury verbally indicated that it
understood the instruction, and again in the jury charge. Moreover, the court took
the additional step of admitting evidence of only one of Dupree’s past robberies,
rather than the four that the government proposed, in order to mitigate the
evidence’s prejudicial impact. In short, the district court based its evidentiary
ruling on similarities between the two crimes -- including, in particular, the
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similarity of the handwriting on the notes and use of a bank document -- and not
solely on similarities common to many robberies, as Dupree suggests. On this
record, we discern no clear abuse of discretion in the district court’s ruling.
Next, Dupree argues that the district court erred by admitting the testimony
of both Deputy Navitsky and PBCSO Detective Weissman concerning photographs
of Dupree and bank surveillance videos. Citing Rule 602 of the Federal Rules of
Evidence, Dupree suggests the district court erred by allowing Navitsky and
Weissman to testify that they had seen a photograph of Dupree and recognized him
in surveillance photographs of the robbery, because neither of the two had
“personal knowledge” of the robbery, as required by Rule 602 of the Federal Rules
of Evidence.
Rule 602 states that a witness “may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has personal knowledge
of the matter.” Fed. R. Evid. 602. Rule 403 authorizes the exclusion of evidence
whose probative value is “substantially outweighed by the danger of unfair
prejudice. . . .” Fed. R. Evid. 403. In reviewing evidence under Rule 403, we view
the evidence “in a light most favorable to its admission, maximizing its probative
value and minimizing its under prejudicial value.” United States v. Jernigan, 341
F.3d 1273, 1284 (11th Cir. 2003).
15
Because the record established that Deputy Navitsky and Detective
Weissman had personal knowledge of Dupree’s appearance, the district court did
not err by admitting their testimony that they recognized Dupree from surveillance
images of the robbery. Moreover, Deputy Navitsky’s testimony that she was
trained in identification, along with Detective Weissman’s testimony that he agreed
with Navitsky’s identification of Dupree, was highly probative of the identity of
the robber, which was the primary issue at trial, as misidentification was Dupree’s
theory of defense. Put simply, we can find no abuse of discretion in the district
court’s ruling that the probative value was not substantially outweighed by its
potential for unfair prejudice, especially given the court’s instruction that the jurors
should not speculate as to why law enforcement officers possessed photographs of
Dupree.
Next, Dupree argues that his confrontation rights were violated when
Detective Weissman testified that Frank LaCosta, a bank employee, had identified
Dupree in a photo lineup, in an out-of-court statement. Dupree contends that the
admission of this evidence violated the rule of Crawford v. Washington, 541 U.S.
36 (2004), that the Sixth Amendment’s guarantee of an accused’s right to confront
and cross-examine witnesses against him extends only to “testimonial” statements.
See also Davis v. Washington, 126 S. Ct. 2266, 2273-74 (2006) (reaffirming this
16
rule). According to Dupree, because LaCosta’s statement was an out-of-court
identification that occurred during a police interview, the statement was
testimonial, and he was entitled to confront the witness. See Davis, 126 S. Ct.
2266, 2273-74 (2006) (defining as “testimonial” any statements made to police
officers, under circumstances that “objectively indicate . . . that the primary
purpose of the interrogation is to establish or prove past events potentially relevant
to later criminal prosecutions.”).
We easily resolve this claim because even if the admission of LaCosta’s
identification was error, it was harmless beyond any reasonable doubt. In United
States v. Mills, we held that a Confrontation Clause violation was harmless beyond
a reasonable doubt when: (1) the out-of-court witness’s testimony was not “vital”
to the prosecution, in that the key evidence upon which the conviction was based
came from other witnesses; (2) the witness’s testimony was mentioned only twice,
in passing, in the government’s closing argument; (3) the testimony was only
cumulative of other testimony; and (4) cross-examination by other defendants
provided a forum by which the defense could undermine the testimony. See 138
F.3d 928, 939-40.
Here, even assuming LaCosta’s statement was admitted in contravention of
Dupree’s confrontation rights, the statement was merely cumulative of the
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government’s overwhelming proof that Dupree was the May 1996 robber, and the
statement was mentioned only once throughout the trial. On this record, we readily
conclude that any error in the admission of the identification was harmless beyond
a reasonable doubt.
Finally, Dupree argues that the district court committed plain error by
ordering him to pay $2,200 restitution, because the evidence established that he
stole only $2,157. The government concedes error on this point and urges this
Court for a limited remand to allow the district court to correct the $43
discrepancy. Accordingly, we vacate the restitution order and remand for the
limited purpose of correcting the $43 discrepancy in that order.
AFFIRMED IN PART; VACATED AND REMANDED IN PART, WITH
INSTRUCTIONS.
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