IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
Plaintiff, )
)
v. ) Cr. A. No. 1912029331;
) 1912028560; 1912028616
MICHAEL EDELIN, )
)
Defendant. )
)
Date Submitted: June 4, 2021
Date Decided: June 30, 2021
Upon the State’s Motion in Limine
DENIED.
ORDER
James K. McCloskey, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.
John S. Edinger, Esquire, Assistant Public Defender, Office of Defense Services,
Wilmington, Delaware, Attorney for Defendant Michael Edelin.
SCOTT, J.
INTRODUCTION
Before the Court is the State of Delaware’s (the “State”) Motion in Limine
pursuant to Delaware Rule of Evidence 404(b) (the “Motion”). After reviewing the
Motion and Defendant Michael Edelin’s (“Mr. Edelin”) Response, the State’s
Motion is DENIED.
BACKGROUND
Mr. Edelin is accused of robbing three banks in various locations in December
of 2019. Mr. Edelin is charged by Indictment with one count of Robbery First
Degree, two counts of Robbery in the Second Degree, and two counts of Wearing a
Disguise During the Commission of a Felony.
The State seeks to introduce evidence of Mr. Edelin’s prior criminal record
for purposes of establishing his (1) identity, (2) intent, and (3) knowledge of the
banks and dye packs. The relevant inquiry here, in weighing the probative value and
prejudicial effect of introducing such evidence, is whether the facts rise to the
threshold of indicating a clear pattern of conduct attributable only to Mr. Edelin.
On March 30, 2015, Mr. Edelin pled guilty to Robbery First Degree and
Robbery Second Degree in connection with a string of robberies that took place in
2014. On June 26, 2015, the Court sentenced Mr. Edelin, effective July 2, 2014, to
six years in prison followed by decreasing levels of probation.
1
On October 6, 2008, Mr. Edelin pled guilty to two counts of Robbery First
Degree and two counts of Robbery Second Degree in connection with a string of
robberies that took place in 2007-08. On December 5, 2008, the Court sentenced Mr.
Edelin to a total of six years in jail followed by decreasing levels of probation.
The State seeks to connect the dots from those robberies to the instant string
of robberies that Mr. Edelin is accused of committing by introducing, for purposes
of establishing his identity, intent, and knowledge of the banks and dye packs,
evidence that involves: (a) location of the banks, (b) disguises (c) demand notes, and
(d) and information relating to Mr. Edelin’s experience with dye packs.
A. Location of the Banks
On December 5, 2019, the Citizens Bank located within the Acme at 1
University Plaza in Newark, Delaware (“Newark Citizens Bank”).1
On June 26, 2014, the Newark Citizens Bank was robbed.2 Mr. Edelin pled
guilty to robbing this bank.
On December 12, 2019, the Citizens Bank located at 919 N. Market Street,
Wilmington, DE (“Wilmington Citizens Bank”) was robbed.3 Mr. Edelin pled guilty
to robbing this bank.
1
State’s Mot. at p. 2.
2
Id. at p. 8.
3
State’s Mot. at p. 3.
2
On September 4, 2007, the Wilmington Citizens Bank was robbed.4 Mr.
Edelin pled guilty to robbing this bank.
On December 18, 2019, the M&T Bank located at 287 Christiana Road in
New Castle, Delaware was robbed (“New Castle M&T Bank”).5
On March 25, 2014, the New Castle M&T Bank was robbed.6 Mr. Edelin pled
guilty to robbing this bank.
On May 19, 2014, the New Castle M&T Bank was robbed.7 Mr. Edelin pled
guilty to robbing this bank.
On February 22, 2008, the Wilmington Trust Bank located at 287 Christiana
Road in New Castle, Delaware was robbed (“New Castle Wilmington Trust Bank”).8
Mr. Edelin pled guilty to robbing this Bank. Noteworthy, the New Castle
Wilmington Trust Bank is now the New Castle M&T Bank that Mr. Edelin is
accused of robbing in 2019.
On March 1, 2008, the New Castle Wilmington Trust Bank was robbed.9 Mr.
Edelin pled guilty to robbing this bank.
4
Id. at p. 9.
5
Id. at p. 4.
6
Id. at p. 6.
7
Id.
8
Id.
9
Id.
3
On January 11, 2008, the PNC Bank located in Wilmington, Delaware was
robbed (“Wilmington PNC Bank”).10 Mr. Edelin pled guilty to robbing this bank.
On January 29, 2008, the Wilmington PNC Bank was robbed. Mr. Edelin pled
guilty to robbing this bank.
On March 12, 2008, the Wilmington Trust Bank located at 1001 N. Market
Street in Wilmington, Delaware was robbed. (“Wilmington Trust Bank in
Wilmington”).11 The Wilmington Trust Bank in Wilmington, located at 1001 N.
Market, is now a M&T Bank and is located across the street from the Wilmington
Citizens Bank.
B. Disguises
On December 5, 2019, the Newark Citizens Bank was robbed by a suspect
wearing “all black with a black hood pulled tight around his face.”12
On June 26, 2014, the Newark Citizens Bank was robbed by “a black male
wearing a black winter hat and sunglasses.”13
On December 12, 2019, the Wilmington Citizens Bank was robbed by a
“black male with a black and gray goatee wearing all black and a black knit hat.”14
10
Id. at p. 9
11
Id. at p. 11.
12
State’s Mot. at p. 2.
13
Id. at p. 8.
14
State’s Mot. at p. 3.
4
On September 4, 2007, the Wilmington Citizens Bank was robbed by “a black
male wearing a baseball hat pulled down to just above his eyes and a dark t-shirt.”15
On December 18, 2019, the New Castle M&T bank was robbed by “a black
male wearing all black and a hood pulled tightly around his face.”16
On March 25, 2014, the New Castle M&T Bank was robbed by “a black male
wearing a black knit hat, hooded sweatshirt with the hood up, and dark pants.”17
On May 19, 2014, the New Castle M&T Bank was robbed by “a black male
wearing glasses.”18
On February 22, 2008, the New Castle Wilmington Trust Bank was robbed
by “a black male wearing a black knit hat and black jacket.”19 This Bank and since
changed and is now the New Castle M&T Bank.
On March 1, 2008, the New Castle Wilmington Trust Bank was robbed by “a
black male wearing a black knit hat.”20
On January 11, 2008, the Wilmington PNC Bank was robbed by “a black male
wearing a baseball hat.”21
15
Id. at p. 9.
16
Id. at p. 4.
17
Id. at p. 6.
18
Id.
19
Id.
20
Id.
21
Id. at p. 9
5
On January 29, 2008, the Wilmington PNC Bank was robbed by “a black male
wearing a blue hooded sweatshirt.”
On March 12, 2008, the Wilmington Trust Bank in Wilmington was robbed
by “a black male wearing a dark jacket.”22
C. Demand Notes and Comments
On December 5, 2019, the Newark Citizens was robbed by a suspect who used
a note that allegedly stated “give me all your cash or I will shoot you.”23
On June 26, 2014, the same Citizens Bank was robbed by a suspect who used
a note that stated “just give me all the money Right Now!”24
On December 12, 2019, the Wilmington Citizens Bank was robbed by a
suspect who used a note that stated “Give me all the money.”25
On September 4, 2007, the same Citizens Bank was robbed by a suspect who
used a note that stated “Put money on counter no one gets hurt.” 26
22
Id. at p. 11.
23
Id. The suspect fled with the demand note, however the bank teller described to
Delaware State Police what the note said.
24
Id.
25
Id..
26
Id. at p. 9.
6
On December 18, 2019, the New Castle M&T bank was robbed by a suspect
who used a note that stated “GIVE ME ALL THE MONEY.”27 The suspect then
stated “you know what’s going on.”28
On March 25, 2014, the same M&T Bank was robbed by a suspect who used
a note that stated “give me all your money.”29
On May 19, 2014, the same M&T Bank was robbed by a suspect who used a
note that stated “give me all of your money now.”30 The suspect told the teller “don’t
do anything funny, I have a gun and don’t want to hurt anybody, and don’t hand me
no packs or dye.”31
On February 22, 2008, the New Castle Wilmington Trust Bank, now operating
as the aforementioned New Castle M&T Bank, was robbed by a suspect who used a
note that stated “I don’t care about alarms or guards, loose bills have a gun!”32
27
Id.
28
Id.
29
Id. at p. 7.
30
Id.
31
Id.
32
Id. at p. 10.
7
On March 1, 2008, the same Wilmington Trust Bank, now operating as the
aforementioned New Castle M&T Bank, was robbed by a suspect who used a note
that stated “I have a gun, I will use it, give me all the loose bills no body get hurt.”33
On January 11, 2008, the PNC Bank located in Wilmington, Delaware was
robbed by a suspect approached the teller with a demand note. The content of the
demand note is unknown.
On January 29, 2008, the same PNC Bank was robbed by a suspect who used
a note that stated “I don’t care about the guard or the camera I have a gun and I will
use it give me all the loose bills.”34 The suspect then verbally stated, “come on, Miss
Danika, we don’t have all day.”35
On March 12, 2008, the Wilmington Trust Bank in Wilmington was robbed
by “a black male wearing a dark jacket.”36 The suspect approached the teller with a
demand note that stated “I have a gun I will use it. Give me all the loose bills now.”37
33
Id.
34
Id.
35
Id.
36
Id. at p. 11.
37
Id.
8
D. Dye Packs
In the 2019 Wilmington Citizens Bank robbery, the suspect there noticed a
dye pack contained within the bag of money obtained from the bank teller and left it
on the counter.
In the second 2014 New Castle M&T Bank robbery, of which Mr. Edelin pled
guilty to, Mr. Edelin presented a demand note that stated “don’t have me no packs
or dye.”
In the 2008 Wilmington Trust Bank in Wilmington robbery, of which Mr.
Edelin pled guilty to, Mr. Edelin was caught in large part due to the presence of a
dye pack included within the bag full of stolen money. Officers responding to the
Wilmington Trust robbery observed a cloud of red smoke coming from a trash can
on 10th street near the Wilmington Library. The officers entered the Wilmington
Library. In one bathroom, the officers found traces of the red dye in the bathroom
sink and U.S. currency covered in red ink in the trash can. Officers then proceeded
to the second floor of the Wilmington Library and found Mr. Edelin covered in red
ink.
STANDARD OF REVIEW
Under Delaware Rule of Evidence 403 (“D.R.E. __”), the Court may exclude
relevant evidence if its probative value is substantially outweighed by a danger of
9
one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Under D.R.E. 404(b)(1), 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 occasion
the person acted in accordance with the character. Under D.R.E. 404(b)(2), such
evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.
PARTIES’ ASSERTIONS
A. The State
The State intends to introduce evidence of Mr. Edelin’s prior robberies to
establish his (1) identity as the perpetrator of the instant robberies, (2) intent, and (3)
knowledge of the banks and dye packs.
The State asserts that the evidence is material to the facts at issue and admitted
for the purposes of establishing the Mr. Edelin’s modus operandi and knowledge.
The State argues that, as evidenced by his prior charges and convictions, Mr. Edelin
uses the same modus operandi when choosing the banks to rob, and in robbing the
banks by wearing a disguise and using a demand note.
10
B. Mr. Edelin
Mr. Edelin argues that the introduction of such evidence would violate D.R.E.
403 and 404. Mr. Edelin further asserts that, with respect to a Getz analysis, it is very
likely that the jury would simply infer that the evidence shows Mr. Edelin has a bad
character or a general criminal disposition. Mr. Edelin contends that the prior
robberies have very little, if any, bearing on any material issues in this case and asks
this Court to deny the State’s Motion.
DISCUSSION
The State seeks to introduce at trial evidence of prior robberies, specifically
the locations, disguises, demand notes, and evidence tending to show knowledge of
dye packs, that Mr. Edelin was charged with, and later pled guilty to, in 2008 and
2014.
Evidence of other crimes or bad acts is generally inadmissible to prove the
commission of the offense charged.38 This rule prevents the State from proving a
charged offense by presenting evidence of other crimes on the theory that the
defendant acted in conformity with his prior bad acts. That is, the State cannot use
another offense to establish that the defendant had a propensity to commit the
charged offense.39 D.R.E. 404(b) sets forth the general rule and its exceptions.
38
Getz v. State, 538 A.2d 726, 730 (Del. 1988).
39
Deshields v. State, 706 A.2d 502, 506 (Del. 1998).
11
Under D.R.E. 404(b)(1), 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 occasion
the person acted in accordance with the character. Under D.R.E. 404(b)(2), such
evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.
Five guidelines are to be considered by trial judges in assessing the
admissibility of evidence under Rule 404(b) are set forth in Getz v. State: (1) the
evidence must be material to an issue in the case; (2) the evidence must be introduced
for a purpose sanctioned by Rule 404(b) or any other purpose not inconsistent with
the basic prohibition against evidence of bad character or criminal disposition; (3)
the evidence of other acts must be proved by plain, clear and conclusive evidence;
(4) the other acts cannot be too remote in time;40 and (5) the court needs to balance
the probative value of such evidence against its potential for prejudice under D.R.E.
403. If the evidence is admitted, the judge must instruct the jury about the reason the
evidence was admitted.41
40
Evidence is remote only when there is “no visible, plain, or necessary
connection” between the evidence and the charges currently before the court. See
State v. Ashley, 1998 WL 731568 (Del. Super.) (citing Lloyd v. State, 1991 WL
247734 (Del. 1991).
41
Getz, at 734.
12
To meet the first prong of Getz, the evidence must be material to an issue or
fact in dispute in the case. Evidence is material if it tends, of itself or in connection
with other evidence, to influence the result reached by the jury.42
Here, the first prong is satisfied because evidence of Mr. Edelin’s prior crimes
involving robbery is being offered to prove identity, a material fact in dispute, in the
instant case involving robbery and such evidence is likely to influence the result
reached by a jury.
To meet the second prong of Getz, the evidence of other crimes must be
introduced for a purpose sanctioned by D.R.E. 404(b) or any other purpose not
inconsistent with the basic prohibition against evidence of bad character or criminal
disposition. In other words, a party may offer evidence of prior misconduct for any
material purpose other than to show a defendant’s mere propensity or disposition to
commit the charged crime. Under D.R.E. 404(b)(2), such evidence may be
admissible to prove motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.
The State argues that they intend to introduce the evidence of the prior
robberies “to establish (the Defendant’s) identity as the perpetrator of the instant
robberies, his intent, and his knowledge of the banks and dye packs.” The State also
42
Lloyd v. State, 604 A.2d 418, 1991 WL 247737, at *2 (Del. Nov. 6, 1991)
(TABLE).
13
asserts the “Defendant uses the same modus operandi (“M.O.”) when committing
bank robberies by wearing some form of a disguise and passing a demand note.”
When evidence of other crimes is used to prove identity, a much greater
degree of similarity between the charged crime and the prior crimes is required than
when such evidence is used to prove a state of mind. 43 In other words, if the
defendant was convicted of the prior conduct, the State must still show a greater
degree of similarity if the prior acts are being used to prove identity as opposed to
motive or intent.44 The stringent identity standard requires a mark whose distinctive
nature tends to differentiate those offenses from others.45
While not directly listed under 404(b), the modus operandi or “method of
working” exception has been traditionally used as another subset of identity
evidence. It refers to a pattern of criminal behavior so distinct that separate offenses
are recognized as the work of the same person.46 Between the offense offered to
prove modus operandi and the offense charged, there must be a clear connection
which creates a logical inference that, if defendant committed the former offense, he
also committed the latter. This inference arises when both crimes share peculiar and
43
State v. Rodriguez, 2010 WL 1987520, at *6 (Del. Super. May 18, 2010) (citing
to U.S. v. Myers, 550 F.2d 1036, 1045 (5th Cir. 1977).
44
Id.
45
Rodriguez, at *6.
46
Id. at *7.
14
distinctive features not shared by most offenses of the same type and which,
therefore, earmark the offenses as one person’s handiwork. The offenses need not
be identical but must share features which, although common to similar crimes in
general, are distinctive when considered together.47
If the purpose of the evidence is to show that the defendant's prior criminal
conduct provided knowledge or preparation, it may be necessary that the prior
conduct be similar to the offense charged.48
Under the common plan or scheme exception, evidence of similar criminal
acts is generally admitted under the exception in two fact situations. The first
involves the use of prior acts which are so unusual and distinctive that their
relationship to the charged offense may establish identity.49 The second basis for
admissibility of other bad acts under the plan or scheme exception is where the other
acts form part of the background of the alleged act, to which it is inextricably related
and without which a full understanding of the charged offense is not gained.50
47
Rodriguez, at *7 (citing to People v. Clay, 811 N.E.2d 276, 282 (Ill. App. Ct.
2004).
48
29 Am. Jur. 2d Evidence § 416 (2021); see U.S. v. Bailleaux, 685 F.2d 1105, 11
Fed. R. Evid. Serv. 1300 (9th Cir. 1982).
49
Getz; see also Dutton v. State, 452 A.2d at 145; Commonwealth v. Shively, 424
A.2d at 1259; C. McCormick, Evidence, § 190, at 559.
50
Getz; see also State v. Curry, 330 N.E.2d at 725.
15
Repetition is not, in itself, evidence of a plan and other “crimes of the sort with which
he is charged” cannot be admitted against the defendant under that guise.51
A. Locations
In 2019, the State alleges that Mr. Edelin robbed Newark Citizens Bank,
Wilmington Citizens Bank, and New Castle M&T Bank. The State draws the
inference that, because Mr. Edelin robbed these locations before,52 that Mr. Edelin
must have robbed the banks here. The State argues that this evidence should be
admitted under identity and modus operandi, however the Court will examine the
admissibility of the evidence under the entirety of D.R.E. 404(b). Moreover, the
State attempts to admit location evidence of Mr. Edelin’s prior bank robberies that
are not identical as the instant robberies, but in close proximity to the banks he is
alleged to have robbed in 2019. The Court will bifurcate its analysis and address the
banks in close proximity after.
For the purposes of identity, the fact that Mr. Edelin robbed these three
locations does not satisfy the greater degree of similarity as described in State v.
Rodriguez.
51
Getz; see also United States v. Dothard, 11th Cir., 666 F.2d 498, 502 (1982).
52
Newark Citizens Bank: once in 2014; Wilmington Citizens Bank: once in 2007;
New Castle M&T Bank: twice in 2014 and twice in 2008 when it was the
Wilmington Trust.
16
Next, for purposes of modus operandi, the generic characteristics of the prior
robberies does not reach the high degree of similarity that marks the present
robberies that Mr. Edelin is accused of as the handiwork of the Mr. Edelin. The mere
use of a disguise and demand note is sufficiently specific or unique. As the
Washington Court of Appeals found in State v. Perron,53 which stands for the
proposition that generic characteristics of a crime does not reach the high degree of
similarity that marks the act as the handiwork of the accused, the facts here do not
reflect a high degree of similarity. Similar to the case there, the evidence here
weighing in favor of similarity includes that the same banks were robbed, a demand
note was used, and the suspect wore a disguise. In short, these similarities are too
general and the mere fact that Mr. Edelin has robbed these banks for money in the
past is the invitation to convict on basis of propensity.
With regards to knowledge, despite the State’s contention that Mr. Edelin’s
experience in robbing these banks in the past tends to show Mr. Edelin’s familiarity
or knowledge of the banks, these prior robberies do not demonstrate any special
knowledge of the bank used to commit the robberies here. As the Seventh Circuit
Court of Appeals found in U.S. v. Owens,54 which stands for the proposition that
evidence of a prior bank robbery is not admissible to demonstrate the defendant’s
53
State v. Perron, 2017 WL 6604102 (Wash. App. Dec. 27, 2017).
54
U.S. v. Owens, 424 F.3d 649, 655 (7th Cir. 2005).
17
knowledge and familiarity with the bank that he robbed in the charged incident
where the evidence does not demonstrate any special knowledge of the bank used to
commit the present crime, there is no evidence here to suggest that Mr. Edelin has
some special knowledge of the bank that he used to allegedly commit the present
crime. Although Mr. Edelin’s prior robberies and the present robberies Mr. Edelin
is accused of committing were committed in substantially the same way, in that both
robberies involved an individual wearing a disguise and demand note, the same may
be said of many bank robberies.
Next, such evidence is not admissible under common plan or scheme for the
reason that the prior robberies are not so unusual and distinctive that their
relationship to the charged offense may establish identity.55
Last, as for the remaining purposes left under D.R.E. 404(b)(2),56 none appear
to apply to the same location robberies under the facts available to this Court.
Accordingly, the State may not introduce evidence that Mr. Edelin pled guilty to
robbing these very same banks before.
As for the remaining banks, the State attempts to bridge a connection between
these banks that were robbed previously by Mr. Edelin and the banks robbed in the
55
Getz; see also Dutton v. State, 452 A.2d at 145; Commonwealth v. Shively, 424
A.2d at 1259; C. McCormick, Evidence, § 190, at 559.
56
(1) Motive; (2) Opportunity; (3) Intent; (4) Preparation; (5) Absence of Mistake;
and (6) Lack of Accident.
18
instant matter in 2019, but not precisely the same location. The State argues, since
Mr. Edelin previously robbed the Wilmington PNC Bank twice and the Wilmington
Trust in Wilmington57 once, of which both banks are located in close proximity to
the Wilmington Citizens Bank, that this is sufficient to warrant admission.
These close in proximity robberies that Mr. Edelin previously pled guilty to
are not so similar, nor tending to show a pattern, or some other unusual characteristic
that implicates Mr. Edelin in robbing the three alleged robberies. Merely being in
close proximity is not enough to warrant admission under any of the bases under
D.R.E. 404(b).
Accordingly, evidence that shows Mr. Edelin has previously robbed the very
same banks or banks that are close in proximity to the banks that Mr. Edelin is now
accused of robbing is inadmissible.
B. Disguises
For the Newark Citizens Bank, the suspect wore a black jacket with the hood
pulled tight around the suspect’s face. For the Wilmington Citizens Bank, the suspect
wore all black clothing with a black knit hat. Last, for the New Castle M&T Bank,
57
The Wilmington Trust in Wilmington is now M&T Bank and located across the
street of the Wilmington Citizens Bank – a bank Mr. Edelin is accused of robbing
here.
19
the suspect there wore all black clothing with a hood pulled tightly around the
suspect’s face.
In the robberies that Mr. Edelin has previously pled guilty to, he wore various
disguises included a black winter hat, sunglasses, a baseball hat, a dark t-shirt, a
black knit hat, a hooded sweatshirt with the hood up, and dark pants. Here, the mere
fact that the robber in 2019 and Mr. Edelin in 2014 and 2007-08 wore a dark colored
disguise, and/or wore a sweatshirt with a hood, and/or wore sunglasses and a hat,
and/or used a note to demand money from the teller, does not implicate a sufficient
degree of similarity or pattern of behavior that carries a mark of distinction. Indeed,
these disguises are more similar in nature to those found in U.S. v. Myers,58 State v.
Randolph,59 and State v. Timmons60 in the sense that these types of disguises are
either of such common occurrence in robberies or bore insufficient similarity to the
disguises used in the robberies at issue. Unlike in Commonwealth v. Floyd, 61 where
the court there found that the use of Muslim clothing as a form of disguise while
committing gunpoint robberies reflected a pattern of behavior that carried a mark of
distinction, the disguises here carry no such mark of distinction that would
distinguish Mr. Edelin’s disguises from disguises used in other robberies.
58
U.S. v. Myers, 550 F.2d 1036 (5th Cir. 1977).
59
State v. Randolph, 933 A.2d 1158 (Conn. 2007).
60
State v. Timmons, 327 S.C. 48 (July 21, 1997).
61
Com. v. Floyd, 2013 WL 11299434, at *15.
20
In short, something more than repeated performance of the same class of
crimes is required. The similarity in the crimes must be so distinct so as to raise the
inference that the accused is the perpetrator of the crime in question. These
similarities in disguises are a common component of armed bank robberies and could
easily be exhibited by persons other than Mr. Edelin. Accordingly, evidence of the
disguises used in the previous robberies that Mr. Edelin has pled guilty to is
inadmissible.
C. Bank Notes and Comments
For the Newark Citizens Bank, the suspect in the 2019 robbery used a note
that stated “give me all your cash or I will shoot you.” For the Wilmington Citizens
Bank, the suspect in the 2019 robbery used a note that stated “give me all the
money.” For the New Castle M&T Bank, the suspect in the 2019 robbery used a note
that stated “GIVE ME ALL THE MONEY.”
For the robberies that Mr. Edelin pled guilty to, the only notes that are
sufficiently similar are the notes used in the 2014 Newark Citizens Bank robbery
and New Castle M&T Bank robberies in 2014. For the 2014 Newark Citizens Bank
robbery, the note used there stated “just give me all the money Right Now.” For the
2014 New Castle M&T Bank robberies, the notes used there stated “give me all your
money” and later “give me all of your money now.”
21
In U.S. v. Rogers,62 the Fifth Circuit Court of Appeals stated that the similarity
of the demand notes used in the two robberies there supported the theory that they
were perpetrated by the same person. The first note stated: “This is a robbery I have
a gun If you draw any attention-you shall no doubt die first Give me prepacked $100
bills you have 10 Seconds.” The second note stated: “I got a gun If you draw any
attention I'll shoot you first Move fast give me prepacked hundred-dollar bills!! I
don't have nothing to lose. nothing.”63
Unlike the similarities in wording as found in U.S. v. Rogers in the demand
notes used, the similarities in wording in the prior bank demand notes used by Mr.
Edelin in comparison to the bank demand notes used by the suspect in the present
robberies are not sufficiently distinct or unique to support the theory that the present
robberies were perpetrated by Mr. Edelin. In U.S. v. Rogers, where the notes
included unique similarities (such as the mention of a gun, warning against drawing
attention, or the use of the term prepacked hundred-dollar bills), the notes here do
not appear to have some unique characteristic or phraseology that implies that Mr.
Edelin must have robbed the bank in 2019 on the basis of the similarities in the
demand notes he used in the past.
62
U.S. v. Rogers, 126 F.3d 655 (5th Cir. 1997).
63
Id. at p. 657.
22
These notes are fairly similar to the notes used in 2019 in terms of wording,
however distinguishable on the basis of capitalization and, with regards to the
Newark Citizens Bank note, the threat of violence by shooting. Problematically,
demand terms such as “give me the money” or “give me all your money” are
relatively generic. Without additional unique attributes or similarities, these prior
demand notes are too general and fail to implicate Mr. Edelin in the 2019 robberies
to a sufficient degree to warrant introduction under identity, modus operandi, intent,
or common plan. Moreover, the remaining bases under D.R.E. 404(b) are
inapplicable.
Last, the State seeks to introduce comments made by Mr. Edelin in past
robberies. With regards to the 2019 New Castle M&T Bank robbery, the suspect
there verbally stated to the bank teller “you know what’s going on.” For the 2014
robbery of the same M&T Bank, of which Mr. Edelin pled guilty to, the robber told
the bank teller “don’t do anything funny, I have a gun and don’t want to hurt
anybody, and don’t hand me no packs or dye.” For the 2008 robbery of the
Wilmington PNC Bank, of which Mr. Edelin pled guilty to, the robber told the bank
teller “come on, Miss Danika, we don’t have all day.” There are no similarities in
these statements that implicate Mr. Edelin in the 2019 New Castle M&T Bank
robbery.
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Accordingly, the demand notes and verbal statements made by Mr. Edelin
from the 2014 and 2007-08 robberies are inadmissible.
D. Dye Packs
In 2008, Mr. Edelin was caught by the authorities in the Wilmington Public
Library due to a dye pack hidden within the bag containing stolen money. The State
argues that, due to Mr. Edelin’s prior robbery arrest due to a dye pack, Mr. Edelin
became cognizant of dye packs and knew how to remove the dye pack during the
2019 Wilmington Citizens Bank robbery.
Here, although Mr. Edelin may have gained knowledge from having been
caught by the authorities due to a hidden dye pack in a 2008 robbery, knowledge of
dye packs or that banks use dye packs in the event of a robbery is fairly common.
This knowledge is not so distinctive that it would create an inference that Mr. Edelin
must have committed the robbery in 2019 due to the suspect’s removal of a dye pack
and his experience with dye packs in 2008. This knowledge also fails to implicate
Mr. Edelin in the 2019 robberies to a sufficient degree to warrant introduction under
modus operandi, intent, or common plan, or knowledge. Additionally, none of the
remaining bases under D.R.E. 404(b) are applicable. As a result, evidence of dye
packs from prior robberies that Mr. Edelin has pled guilty to is inadmissible for the
purposes of identity, modus operandi, intent, common plan, or knowledge.
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In sum, the second prong of Getz is not met with regards to evidence
concerning Mr. Edelin’s prior bank robbery locations, disguises, bank notes, and
knowledge of dye packs.
Accordingly, evidence concerning the locations of Mr. Edelin’s prior bank
robberies, disguises, bank notes, and knowledge of dye packs is inadmissible for the
reasons stated above.
CONCLUSION
For the forgoing reasons, the State’s Motion in Limine is DENIED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
The Honorable Calvin L. Scott, Jr.
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