LEON HUDSON, PETITIONER V. UNITED STATES OF AMERICA No. 89-7071 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-9a) is reported at 884 F.2d 1016. An earlier opinion of the court of appeals is reported at 843 F.2d 1062. JURISDICTION The judgment of the court of appeals was entered on September 11, 1989. A petition for rehearing was denied on January 29, 1990 (Pet. App. 64a). The petition for a writ of certiorari was filed on March 29, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a trial judge must instruct a jury that, before it can consider evidence of other crimes under Fed. R. Evid. 404(b), the jury must first determine, by a preponderance of the evidence, that the defendant committed those other crimes. 2. Whether, having denied petitioner's application to concede the issue of intent, the district court improperly admitted evidence of other crimes under Fed. R. Evid. 404(b). 3. Whether the other crimes evidence in this case was sufficiently related to the charged bank theft to be admissible under Fed. R. Evid. 404(b). 4. Whether the district court abused its discretion in permitting cross-examination of a witness whose testimony was offered under Fed. R. Evid. 803(8)(C). 5. Whether the district court abused its discretion in rejecting petitioner's offer of surveillance photographs taken of unrelated bank thefts. STATEMENT After a jury trial in the United States District Court for the Eastern District of Wisconsin, petitioner was convicted of entering a credit union with intent to commit larceny, in violation of 18 U.S.C. 2113(a). He was sentenced to nine years' imprisonment and was ordered to pay $1,263 in restitution. The court of appeals affirmed (Pet. App. 1a-9a). 1. The evidence at trial, the sufficiency of which is not in dispute, showed that on November 19, 1986, petitioner and codefendant Reginald Smith entered the Eaton Employee Credit Union in Milwaukee, Wisconsin, and stole some $1,263. Smith, who was wearing a hat, asked a teller for change. When the teller opened her drawer, Smith leaped over the counter and extracted money from the drawer. Petitioner unsuccessfully tried to leap over the counter; he then ran around to the other side of the counter and tried to open other drawers. One of the tellers testified that Smith had worn the same hat two days earlier when he and another man had come into the credit union to ask for change. Petitioner wore the same hat during a December 2, 1986, counter-jumping incident, as well as at the time of his arrest three days later. In addition to eyewitness testimony, the government introduced expert testimony linking petitioner and Smith to finger and palm prints that were found on the credit union counter. Pet. App. 1a-2a. Pursuant to Fed. R. Evid. 404(b), the government also introduced three other, similar acts of bank larceny, occurring on October 11 and November 1, 1985, and December 2, 1986. Petitioner and Smith were positively identified by tellers in the first two thefts. /1/ One of the tellers positively identified Smith as a participant in the December 1986 theft; she also testified that the man who accompanied Smith during the robbery had worn a hat identical to the one that petitioner was wearing at the time of his arrest three days after the December 1986 robbery. Pet. App. 3a-4a. In an effort to show that they had not participated in the three uncharged robberies, petitioner and Smith called FBI Agent Dan Craft, the Milwaukee FBI bank robbery coordinator, to testify about similar offenses. /2/ Craft testified that between September 16, 1985, and January 26, 1987, there were 37 incidents of counter-jumping at financial institutions in the Milwaukee area. On cross-examination, the government was permitted to show that most of those 37 thefts were not similar to the charged offense or to the three uncharged thefts introduced at trial. Id. at 6a-7a & n.3. /3/ 2. The court of appeals affirmed petitioner's conviction. Pet. App. 1a-9a. It first held that under this Court's decision in Huddleston v. United States, 108 S. Ct. 1496 (1988), "the district judge is not required to instruct the jury that it must find by a preponderance of the evidence that the defendant committed the similar act." Pet. App. 5a. Rather, the court explained, the judge need only "determine that there (is) sufficient evidence from which a jury could find that the defendant committed the misconduct." Ibid. In the present case, the court concluded, the trial court did not abuse its discretion in refusing to give the instruction requested by petitioner. The court noted that, even without an instruction, the jury knew that the identity of the thieves in the three uncharged incidents was in dispute. Moreover, the court explained, the trial judge had thoroughly instructed the jury on the reliability and credibility of eyewitness testimony. Ibid. Finally, the court of appeals concluded that there was sufficient evidence from which the jury could have found that petitioner and Smith had indeed committed the three uncharged thefts. Ibid. The court next held (Pet. App. 6a) that the three other counter-jumping offenses were sufficiently similar to the charged offense to establish a "signature" pattern, and were therefore admissible under Fed. R. Evid. 404(b). The court explained that in each of the incidents at least two men had entered a financial institution, after which the taller man had asked for change, and then both men either had leaped or run around the counter to scoop up cash before fleeing. The court of appeals found that the four incidents were "'sufficiently idiosyncratic to permit an inference of pattern.'" Pet. App. 6a. The court also rejected the contention (Pet. App. 6a) that petitioner should have been allowed to concede the issue of intent, thereby preventing the offer of other crimes evidence to prove that element. Relying on circuit precedent, the court of appeals held that when a defendant is charged with a specific intent crime, the government is free to prove the element of intent. Ibid. Finally, the court of appeals rejected (Pet. App. 6a-7a) petitioner's claim that the government should not have been permitted to cross-examine Agent Craft. The court found no support for the contention that Fed. R. Evid. 803(8)(C) is "a one way street," which allows a proponent to offer evidence, but which precludes the opponent from cross-examining the witness. /4/ The court noted that every other circuit that had considered the question had held that evidence admitted under Rule 803(8)(C) is subject to cross examination. Pet. App. 7a. /5/ ARGUMENT 1. Petitioner contends (Pet. 22-25) that under Huddleston v. United States, 108 S. Ct. 1496, the district court should have instructed the jury that it could not consider the Rule 404(b) evidence until it first determined that the government had proved, by a preponderance of the evidence, that petitioner was one of the participants in the three uncharged bank thefts. In the Huddleston case, the Court held that before submitting Rule 404(b) evidence to the jury, the trial court need not itself determine under Fed. R. Evid. 104(a) that the government has proved the commission of the uncharged criminal act. Instead, the Court stated, the admissibility determination falls under Rule 104(b); and under that rule, a trial court should "simply examine() all the evidence in the case and decide() whether the jury could reasonably find" that the defendant committed the uncharged act "by a preponderance of the evidence." 108 S. Ct. at 1501. The Court did not, however, suggest that the trial court must instruct the jury to make a specific finding, by a preponderance of the evidence, that the defendant committed the uncharged offense. /6/ And to our knowledge, no court of appeals has required a trial judge to submit the instruction that petitioner seeks. See United States v. Sliker, 751 F.2d 477, 500 (2d Cir. 1984), cert. denied, 470 U.S. 1058 (1985). /7/ 2. Petitioner next claims (Pet. 28-30) that he was entitled to stipulate to the element of intent, thus precluding the admissibility of other crimes evidence. According to petitioner, the court of appeals' decision -- foreclosing such a stipulation -- is in conflict with decisions of the Second Circuit. That question, however, is not presented in this case. The other crimes evidence against petitioner was admitted not simply to prove his intent, but also, and more importantly, to prove identity -- to show that petitioner was one of the participants in the charged offense. Obviously, petitioner did not offer to stipulate to identity, and the evidence offered under Rule 404(b) was thus admissible on that basis. /8/ See United States v. Porter, 881 F.2d 878, 887 (10th Cir. 1989); United States v. Johnson, 820 F.2d 1065, 1068-1069 (9th Cir. 1987); United States v. Sliker, 751 F.2d at 486-487. 3. Petitioner also contends (Pet. 31-34) that the court of appeals applied the wrong standard in determining that the other counter-jump thefts were sufficiently similar to the charged offense to warrant their admission under Rule 404(b). Petitioner asserts that the court of appeals' ruling -- that those thefts bore "'a singular strong resemblance to the pattern of the offense charged'" (Pet. App. 6a) -- conflicts with the rule in other circuits, according to which Rule 404(b) acts must be "unique, distinctive, or idiosyncratic so as to be like a signature." Pet. 32. The difference in formulation, however, is purely semantic. Indeed, the court of appeals relied (Pet. App. 6a) on its recent decision in United States v. Connelly, 874 F.2d 412 (1989), in which the Seventh Circuit had explained that evidence of other crimes must be "'sufficiently idiosyncratic'" to permit an inference of pattern. Id. at 417. /9/ 4. Petitioner contends (Pet. 39-43) that he should have been allowed to offer Agent Craft's testimony under Fed. R. Evid. 803(8)(C) without having to submit the witness to cross-examination. Petitioner offers no support for this contention, which is contrary to settled principles of law. The courts of appeals that have considered this question have uniformly held that a party opponent may cross-examine a witness who testifies under Rule 803(8)(C). See Ellis v. International Playtex, Inc., 745 F.2d 292, 303 (4th Cir. 1984); Melville v. American Home Assurance Co., 584 F.2d 1306, 1316 (3d Cir. 1978); see also Kehm v. Procter & Gamble Manufacturing Co., 724 F.2d 613, 619 (8th Cir. 1983) (not error to admit Center for Disease Control studies when the defendant had an opportunity to offer other evidence to rebut the studies). Petitioner asserts that because this is a criminal case, the rule should be different. But the government generally has a right to cross-examine witnesses (see Brown v. United States, 356 U.S. 148, 155 (1958)), and there is no reason to take a different view in this context. Nor does the text of Rule 803(8)(C), on which petitioner relies (Pet. 40), suggest otherwise. Although the rule provides that in criminal cases the public records themselves may be offered only against the government, the rule does not state that once the records have been admitted the government is foreclosed from cross-examining the evidence. 5. Finally, petitioner asserts (Pet. 44-47) that he should have been permitted to introduce surveillance photographs from eight other counter-jumping bank thefts. As petitioner concedes (Pet. 44), however, that claim is factbound. For that reason, the claim warrants no further review. In any event, as the court of appeals concluded (Pet. App. 7a-8a), the eight other robberies that petitioner sought to prove were not sufficiently similar to the charged offense to give them a "signature" quality for purposes of Rule 404(b). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General LOUIS M. FISCHER Attorney MAY 1990 /1/ In fact, petitioner was convicted of grand theft for the November 1 episode. However, the fact of his conviction was not introduced at his trial on the present charges. Pet. App. 3a. /2/ That evidence was admitted, over the government's objection, under Fed. R. Evid. 803(8)(C) as a report or data compilation of factual findings resulting from an investigation. /3/ Of the 37 thefts related by Agent Craft, 12 involved silent thieves, 14 involved lone thieves, three involved assaults, and six or seven involved the use of a gun. The three remaining robberies included the charged offense and either one or two of the incidents introduced at trial under Fed. R. Evid. 404(b). Pet. App. 6a n.3. The district court precluded petitioner from introducing photographs taken from surveillance cameras during some of the 37 other counter-jumping thefts. Id. at 7a. /4/ Fed. R. Evid. 803(8)(C) provides in pertinent part that the hearsay rule does not exclude: (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth * * * (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. /5/ The court of appeals also held (Pet. App. 7a-8a) that the district judge had not abused his discretion in refusing to admit surveillance photographs taken during some of the other counter-jumping thefts. The court first expressed doubt that such evidence could be used under Fed. R. Evid. 404(b) to prove that someone else committed the robbery. In any event, the court found "insufficient evidence in the record that the individuals in the surveillance photographs committed the charged offense for them to be admissible." Pet. App. 8a. /6/ Indeed, in itemizing four means by which a defendant may avoid the risk of "a litany of potentially prejudicial similar acts" (108 S. Ct. at 1501), the Court noted that the defendant might secure an instruction limiting the use of similar act evidence "for the proper purpose for which it was admitted" (id. at 1502). By contrast, the Court did not suggest that the defendant might also be entitled to the instruction that petitioner requests. /7/ Petitioner contends (Pet. 25-27) that, in the absence of an instruction to the jury, there is no basis on which a court of appeals can assess, pursuant to Huddleston, whether there was sufficient evidence before the jury to permit it to consider the Rule 404(b) evidence. That claim is meritless. Courts of appeals routinely assess the sufficiency of the evidence, and their ability to do so does not turn on whether the jury was instructed to make a preliminary determination of a conditional fact. /8/ The trial court's instructions emphasized that the Rule 404(b) evidence was offered to prove both intent and identity (Pet. App. 57a): The Government has the burden of proving beyond a reasonable doubt that the defendant was the person who committed the crime. You have heard evidence of acts of the defendants other than those charged in the Indictment, including their role or alleged role in other crimes. You may consider this evidence only on the questions of intent, and the identity of the persons who committed the offense charged in the Indictment in this case. This evidence is to be considered by you only for these limited purposes. /9/ Petitioner asserts (Pet. 35-38) that the evidence that he participated in the November 1, 1985 robbery was not sufficient to admit that robbery under Rule 404(b). As petitioner concedes (Pet. 35), however, that issue is entirely factbound. Moreover, for the reasons adduced by the court below (Pet. App. 3a, 6a), petitioner was sufficiently tied to the November 1 robbery to support the trial court's decision to admit it.