FILED
United States Court of Appeals
Tenth Circuit
December 13, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 10-3238
v. D. Kansas
ALBERT LAWRENCE VAUGHAN, (D.C. No. 5:05-CR-40157-JAR-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
I. Introduction
Albert Lawrence Vaughan was convicted of one count of bank robbery in
violation of 18 U.S.C. § 2113(a) and (d) and one count of use of a firearm during
a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). His convictions
arose from the robbery of the First Bank of Kansas in Salina, Kansas, on October
15, 2004 (the “Salina robbery”). At trial, over Vaughan’s objection, the district
court allowed testimony concerning a prior bank robbery committed at the Bank
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
of Colorado in Grand Junction, Colorado, on October 2, 2004 (the “Grand
Junction robbery”). The district court also admitted, again over Vaughan’s
objection, an apology letter Vaughan wrote after his arrest for the Salina robbery.
Vaughan appeals, arguing both pieces of evidence were improperly admitted
under Fed. R. Evid. 404(b). Exercising jurisdiction pursuant to 28 U.S.C. § 1291,
this court affirms.
II. Background
A. Salina and Grand Junction Robberies
On October 15, 2004, a man entered the First Bank of Kansas in Salina,
Kansas, and approached the teller, Renee Ritten, demanding money. At the time
of the robbery there were only four employees in the bank and no customers.
After Ritten indicated she believed the man was joking, he pointed a handgun in
her face and then fired a shot into a nearby filing cabinet. The robber demanded
money from Ritten’s first and second drawers and from her drive-thru teller’s
station. The robber wore rubber gloves and a “Starter 71” baseball cap with the
bill of another cap configured so as to conceal most of his face. When he
received the money, approximately $9,870, the robber stuffed it into his pants and
fled on a bicycle. The four employees in the bank that day, Ritten, Carrianne
Diederich, Leslie Hunley, and Michelle Lindeen, gave consistent descriptions of
the robber—a white male in his 20s, around 5’8” to 5’9”, weighing between
140–175 pounds, wearing a dark sweatshirt with light blue jeans, rubber gloves,
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and the specially configured baseball cap. Of the four witnesses, only Lindeen
identified Vaughan as the robber from a photo lineup and at trial.
Shortly after his arrest on June 29, 2005, Vaughan was interrogated by
Special Agent Deen Abbott of the FBI. Vaughan was asked to confess to fourteen
robberies at banks throughout Colorado, Nevada, Kansas, Utah, and Arizona
between 2003 and 2005. Of those, Vaughan unequivocally confessed to nine
robberies, denied one robbery, made no statement regarding one robbery, and
gave equivocal answers regarding three robberies. In particular, Vaughan
confessed to robbing “a bank in Grand Junction” on October 2, 2004, estimating
that he took approximately $20,000.
At Vaughan’s trial for the Salina robbery, the district court allowed
testimony from the three employees who were working at the Bank of Colorado in
Grand Junction on the day it was robbed as well as a police sergeant who
investigated the robbery. The suspect in the Grand Junction robbery was
described as a white male in his late 20s to early 30s, 5’8” to 5’10”, wearing a
“Starter 71” baseball cap with the bill of a second cap pulled down so as to
conceal his face. The suspect wielded a handgun, demanded money from both the
first and second drawer at the teller’s station, stuffed the cash down the front of
his pants, and left on a mountain bike.
Prior to trial, the government gave notice that it intended to introduce
evidence of the Grand Junction robbery as well as twelve other robberies under
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Fed. R. Evid. 404(b). Vaughan moved to exclude any evidence of the prior
robberies, arguing such evidence was being offered to show propensity to commit
robbery in violation of Rule 404(b). The district court granted the motion as to
each robbery except for the Grand Junction robbery. The court concluded the
Grand Junction robbery was sufficiently similar to the Salina robbery that
evidence of the Grand Junction robbery was probative on the issue of the identity
of the Salina bank robber.
B. Apology Letter
At the end of Vaughan’s interview with Special Agent Abbott, he was
given an opportunity to write an apology letter to the tellers of the banks he
robbed. The letter read:
I would like to take this opp[o]rtunity to apol[o]gize to you. I did
not mean to scare you to this degree. I would like to say that you
were never in any danger. I’m actually a very nice and thoughtful[]
person and if I knew that this would have affected [you] the way it
did, I would never of entered that bank. This makes me realize that I
probably have scared a few other people, which I’m sorry about. I
hope you can leave this experience in the past. I know that I will be
trying.
Once again I do feel bad and I’m very sorry.
At trial, Vaughan objected to the admission of the apology letter, arguing it
would violate the court’s 404(b) ruling because the letter referred to robberies
other than the Grand Junction robbery. The government argued the letter was
directed to the Grand Junction tellers and to all the tellers Vaughan admitted
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robbing. The district court overruled Vaughan’s objection and permitted the
admission of the letter, instructing the government to go no further than stating
the letter was directed to “the tellers.” The jury returned a verdict of guilty on
both counts of the indictment. Vaughan moved for a new trial, arguing the
admission of the apology letter was erroneous under Rules 404(b) and 403. The
district court denied the motion. Vaughan appeals, challenging both the district
court’s 404(b) order admitting evidence of the Grand Junction robbery and the
admission of the apology letter.
III. Discussion
A. Grand Junction Robbery
1. Standard of Review
The court reviews the admission of evidence under Fed. R. Evid. 404(b) for
abuse of discretion. United States v. Mares, 441 F.3d 1152, 1156 (10th Cir.
2006). “An abuse of discretion occurs when a judicial determination is arbitrary,
capricious or whimsical.” United States v. Shumway, 112 F.3d 1413, 1419 (10th
Cir. 1997) (quotation omitted). A district court does not abuse its discretion
where its ruling “falls within the bounds of permissible choice in the
circumstances.” Id. (quotation omitted).
2. Rule 404(b)
Under Rule 404(b), “Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
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occasion the person acted in accordance with the character. . . . This evidence
may be admissible for another purpose, such as proving . . . identity . . . .” To
determine whether the admission of evidence under Rule 404(b) was proper, the
court applies a four-part test derived from Huddleston v. United States, 485 U.S.
681, 691–92 (1988). The Huddleston test requires: “1) the evidence was offered
for a proper purpose; 2) the evidence was relevant; 3) the trial court properly
determined under Fed. R. Evid. 403 the probative value of similar-acts evidence
was not substantially outweighed by its potential for unfair prejudice; and 4) the
trial court gave the jury proper limiting instructions upon request.” Shumway,
112 F.3d at 1419.
The fourth prong of the Huddleston test is not at issue: the trial court
provided a limiting instruction at Vaughan’s request. Nor is the first prong of the
Huddleston test at issue. For Rule 404(b) evidence to be offered for a proper
purpose, “[t]he Government must articulate precisely the evidentiary hypothesis
by which a fact of consequence may be inferred from the evidence of other acts.
In addition, the trial court must specifically identify the purpose for which such
evidence is offered . . . .” United States v. Kendall, 766 F.2d 1426, 1436 (10th
Cir. 1985). The government articulated several 404(b) purposes for which it
sought to admit evidence of the prior robberies, including knowledge, motive,
intent, preparation, plan, and identity. The district court rejected the first five of
these but accepted the sixth. Vaughan denied any involvement in the Salina
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robbery and so the government sought to establish identity by showing enough
similarities between that robbery and the Grand Junction robbery to demonstrate a
signature quality to both crimes. The court thus specifically identified the
purpose for which evidence of the Grand Junction robbery was offered. While
Vaughan contests the extent of the similarities between the Grand Junction and
Salina robberies, these arguments are properly considered under the second and
third Huddleston prongs.
a. Relevance
Under the second prong of the Huddleston test, Rule 404(b) evidence is
relevant if it “tends to prove or disprove one of the elements necessary to the
charged offense.” United States v. Mares, 441 F.3d 1152, 1156–57 (10th Cir.
2006). Uncharged prior bad acts can be used for a proper 404(b) purpose so long
as they are “similar to the charged crime and sufficiently close in time.” United
States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000). “Moreover, although the
uncharged crime must be similar to the charged offense, it need not be identical.”
Id. Where, as here, evidence is offered to show identity based on a modus
operandi theory, the charged and uncharged acts must, “based on a totality of the
comparison . . . share enough elements to constitute a ‘signature quality.’”
Shumway, 112 F.3d at 1420 (quotations omitted).
The court considers several non-exhaustive factors in considering whether
the similarities between two crimes are sufficient to constitute a signature quality:
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(1) geographic location (e.g. preference for rural or urban targets); (2) unusual
quality of the crimes; (3) the skill necessary to commit the crimes; (4) use of a
distinctive device; (5) geographical and temporal proximity between the crimes;
(6) whether the crimes share similar physical elements; and (7) whether the
crimes are part of a common scheme. See id. at 1420; Mares, 441 F.3d at 1158.
Additionally, the district court has the discretion to consider these factors on a
sliding scale such that “a few highly unique factors may constitute a ‘signature,’
while a number of lesser unique factors although insufficient to generate a strong
inference of identity if considered separately, may be of significant probative
value when considered together.” Shumway, 112 F.3d at 1420 (quotations
omitted).
Applying this standard, the district court determined the similarities
between the Grand Junction and Salina robberies were sufficient to constitute a
signature quality. The two robberies occurred in neighboring states and within
thirteen days of one another. Witnesses gave a similar physical description of
both robbers. Both robbers used a handgun, demanded “all the money,” and
instructed the bank tellers to search particular drawers for more money. Both
robbers stored the money in the front of their pants rather than a bag or container,
and both robbers used a bicycle to flee the scene. Most significantly, both
robbers wore a “Starter 71” baseball cap which was specially rigged with the
second bill of another baseball cap that the robbers used to cover their faces.
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Vaughan argues most of the similarities between the two robberies are
generic; robbers commonly use guns and escape by means of a bicycle 1, and
Starter hats are sold in chain stores around the country. Vaughan also points to
the dissimilarities between the two robberies: the Salina robber wore thin plastic
gloves, whereas the Grand Junction robber did not. Further, the Grand Junction
robber was polite and did not fire a gun, whereas the Salina robber was rude and
did fire a gun. Finally, the Salina robber was described as having reddish-blond
facial hair, whereas the Salina robber was not described as having facial hair.
Vaughan also argues the district court’s exclusion of the other twelve robberies he
committed shows there was no signature quality to his robberies permitting an
inference he committed the Salina robbery.
These arguments fail to demonstrate the district court’s determination was
arbitrary, capricious, or whimsical or that it fell outside the bounds of permissible
choice under the circumstances. Shumway, 112 F.3d at 1419. To begin,
Vaughan’s attacks on the similarities between the two robberies are piecemeal.
That is, he analyzes each of the similarities cited by the district court separately
in an attempt to show each, standing alone, is insufficient to establish a signature
1
In support of this contention, Vaughan cites several reported and
unreported cases, as well as a plea agreement from a recent federal case in
Kansas, involving robberies where the suspect used a bicycle as a means of
escape. In its 404(b) order, the district court cited testimony from Special Agent
Abbott indicating the use of a bicycle as a getaway vehicle in a bank robbery may
occur as infrequently as five percent of all bank robberies.
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quality. This approach is inconsistent with the course this court has taken in
previous modus operandi cases, where the number and uniqueness of the factors
necessary to establish a signature quality depends upon the particular
circumstances of each case. See id. at 1420. Moreover, Vaughan’s attempt to
minimize the significance of the distinctive, double-billed, “Starter 71” cap used
in each robbery is unpersuasive. The district court was well within its discretion
to conclude two robberies, committed in neighboring states only thirteen days
apart, in which the suspect used a specially configured cap with a particular
insignia were likely committed by the same person.
While the dissimilarities Vaughan identifies—gloves, facial hair,
politeness, and the discharge of a firearm—are relevant in comparing the two
robberies, they are not so compelling as to demonstrate the district court abused
its discretion in this case. Indeed, the case Vaughan cites as an example of where
a court did abuse its discretion in admitting modus operandi evidence illustrates
the type of showing he fails to make here. In United States v. Myers, 550 F.2d
1036, 1045–46 (5th Cir. 1977), not only were the similarities between the charged
and uncharged robberies completely generic, 2 but there was a substantial
2
The prosecution in Myers described the relevant “similarities” as follows:
(1) both crimes were bank robberies, (2) perpetrated by
[the defendants], (3) between two and three o'clock in
the afternoon. In both robberies the victimized bank
was (4) located on the outskirts of a town, (5) adjacent
(continued...)
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dissimilarity between the two robberies. The charged robbery in Myers involved
a lone gunman, whereas the uncharged robbery involved two armed suspects. Id.
Finally, the district court’s exclusion of evidence of the other robberies to which
Vaughan confessed has no bearing on whether the Grand Junction robbery was
sufficiently similar to the Salina robbery to establish a signature quality.
b. Rule 403 Balancing Test
Under the third Huddleston factor, the district court must determine
whether the probative value of the prior bad acts evidence used to show identity is
substantially outweighed by the danger of unfair prejudice. Mares, 441 F.3d at
1159. “The exclusion of evidence under Rule 403 is an extraordinary remedy and
should be used sparingly.” Id. (quotation omitted). Here, in light of the
previously-discussed similarities and close geographical and temporal proximity
between the Grand Junction and Salina robberies, the probative value of the
evidence was substantial. Moreover, Vaughan fails to show that the prejudice he
suffered from the admission of this evidence was unfair. See id. (“While the
2
(...continued)
to a major highway. In both robberies the participants
(6) used a revolver, (7) furnished their own bag for
carrying off the proceeds, and wore (8) gloves and (9)
masks crudely fashioned from nylon stockings. Finally,
(10), in one of the banks, two women employees were
present; in the other, five women employees were
present.
United States v. Myers, 550 F.2d 1036, 1046 (5th Cir. 1977).
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evidence was ‘prejudicial’ to [the defendant] in the sense that it rebutted her
theory of defense, such is the nature of evidence establishing an element of the
charged crime.”).
The evidence of the Grand Junction robbery was offered for a proper
purpose, relevant, consistent with Rule 403, and submitted with an appropriate
limiting instruction. The district court therefore did not abuse its discretion in
admitting the evidence in Vaughan’s trial for the Salina robbery.
B. Apology Letter
This court reviews the admission of the apology letter for abuse of
discretion. Id. at 1156. The admission of 404(b) evidence is subject to harmless
error analysis. See United States v. Parker, 553 F.3d 1309, 1316 (10th Cir.
2009). “A harmless error is one that does not have a substantial influence on the
outcome of the trial; nor does it leave one in grave doubt as to whether it had
such effect.” Id. (quotation omitted). Notwithstanding the deference owed to
district court evidentiary rulings, after reviewing the record this court concludes
the district court abused its discretion in admitting Vaughan’s apology letter.
Nonetheless, in light of the overwhelming evidence tending to establish
Vaughan’s guilt, the evidentiary error was harmless.
Under the third prong of the Huddleston test, even relevant evidence
submitted for a proper 404(b) purpose should not be admitted if it fails the Rule
403 balancing test. Mares, 441 F.3d at 1159. Rule 403 provides: “The court may
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exclude relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” During the bench conference on Vaughan’s objections to
the admission of the apology letter, the parties disagreed over to whom the letter
was addressed. The government proffered that the letter was addressed to the
Grand Junction tellers and to all other tellers who worked at banks Vaughan
admitted robbing. Vaughan argued the letter was addressed to tellers generally,
including those involved in bank robberies the district court ruled were
inadmissible under Rule 404(b). The district court allowed the apology letter to
be admitted, but instructed the government not to go any further than saying the
letter was written to “the tellers.”
The apology letter, like the other evidence of the Grand Junction robbery,
should have been admissible only to show the identity of the Salina robber
through a modus operandi theory. Vaughan had confessed to the Grand Junction
robbery, and the government presented substantial testimony, including accounts
from three modus operandi witnesses, a Grand Junction police officer, and an FBI
Agent, which developed similarities between the two robberies. The apology
letter developed no such similarities. Its probative value was therefore minimal.
The dangers of unfair prejudice, confusion of the issues, or misleading the jury,
on the other hand, were substantial because of the possibility jurors would infer
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the letter constituted a confession to the Salina robbery. Because the apology
letter does not survive the Rule 403 balancing test under the third prong of the
Huddleston test, it should not have been admitted.
Although the admission of the apology letter was error, this court has no
grave doubt as to whether its admission had a substantial effect on the outcome of
the trial. See Parker, 553 F.3d at 1316. The evidence presented against Vaughan
at trial was overwhelming. It included four eyewitnesses who gave consistent
descriptions of the Salina robber, one of whom identified Vaughan out of a photo
lineup and at trial. Further, the admissible modus operandi evidence was highly
persuasive as to the identity of the Salina robber. Even if the letter had not been
admitted, the outcome likely would have been the same. Reversal on the basis of
the admission of the apology letter is therefore inappropriate.
IV. Conclusion
For the foregoing reasons, the court AFFIRMS the decision of the district
court.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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