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United States v. Harrod

decided: September 15, 1988.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ROBERT HARROD, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 86 CR 370 -- Ann C. Williams, Judge.

Harlington Wood, Jr. and Daniel A. Manion, Circuit Judges, and Jesse E. Eschbach, Senior Circuit Judge.

Author: Eschbach

ESCHBACH, Senior Circuit Judge

This is a direct criminal appeal from a jury conviction, pursuant to a thirty-five-count indictment. The appellant, Robert Harrod, was convicted of one count of conspiracy to commit bank fraud and bank theft under 18 U.S.C. § 371, seventeen counts of bank fraud under 18 U.S.C. § 1344, and seventeen counts of bank theft under 18 U.S.C. § 2113. Harrod was sentenced to consecutive five-year and eight-year terms of incarceration with five years of probation, and was ordered to pay $305,309 in restitution to the two banks that were targeted in the scheme.*fn1 On appeal, the appellant contends that the district court erred in admitting as evidence his previous involvements in the negotiation of stolen financial instruments. We will affirm the judgment of the district court.

I

In the district court, the appellant was convicted of obtaining three stolen and forged checks*fn2 totaling $374,000 from the Land Title Association, and devising a scheme whereby other individuals deposited these checks in federally-insured bank accounts. These individuals*fn3 then withdrew these funds in cash, keeping approximately twenty-five percent of the cash and tendering the remainder to the appellant. The jury convicted Harrod of violating 18 U.S.C. § 371*fn4 (conspiracy to commit an offense against the United States), 18 U.S.C. § 1344*fn5 (scheme to defraud a federally-insured financial institution), and 18 U.S.C. § 2113*fn6 (bank robbery and incidental crimes).

Prior to trial, the appellant had filed a motion in limine to preclude admission of evidence regarding his previous involvement in a stolen check scheme in 1981, his 1984 plea agreement pertaining to that scheme, and his involvement in a stolen bond scheme in 1984. The district court denied the appellant's motion in limine, and the appellant now claims that the district court committed reversible error.

II

When the trial judge permitted the evidence of Harrod's prior acts to be introduced as evidence, she carefully limited the purpose for which the evidence could be used. Immediately preceding the introduction of the prior acts evidence, she instructed the jury: "This evidence that you're going to hear can only be considered by you as it relates to defendant Robert Harrod. . . . And it can only be considered by you on the question of Mr. Harrod's intent, plan and knowledge and is to be considered by you only for this limited purpose." R 8-153. Again, immediately before the jury was dismissed to deliberate, she instructed, "You have heard evidence of acts of the defendant Robert Harrod other than those charged in the indictment. You may consider this evidence only on the question of defendant Robert Harrod's intent, plan and knowledge. This evidence is to be considered by you only for this limited purpose." R 13-585. While FED. R. EVID. 404(b) permits the presentation of other acts for these limited purposes, the appellant contends that the prior acts evidence does not go to any matter in issue, and was irrelevant and prejudicial.

In United States v. Shackleford, 738 F.2d 776 (7th Cir. 1984), this Court established a four-part test for determining the admissibility of other acts evidence. Evidence of prior or subsequent acts can be introduced if:

(1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue . . . (3) the evidence is clear and convincing, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

738 F.2d at 779.

Our decision in Shackleford integrates the concerns of both FED. R. EVID. 404(b)*fn7 and 403.*fn8 Rule 404(b) prohibits the introduction of other acts evidence if it is introduced to show the defendant's bad character, or to indicate the defendant's propensity to commit the alleged crime. See, e.g., Shackleford, 738 F.2d at 779; United States v. Liefer, 778 F.2d 1236, 1241 (7th Cir. 1985). However, Rule 404(b) does not bar such evidence if it is used to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Because evidence of other acts is potentially prejudicial and open to the danger of jury misuse, the trial court has the responsibility of carefully evaluating the tendered evidence to ensure that its probative value is not substantially outweighed by the danger of unfair prejudice to the defendant. See Liefer, 778 F.2d at 1241; United States v. Beasley, 809 F.2d 1273, 1279 (7th Cir. 1987); Shackleford, 738 F.2d at 779. This is in accord with the Rule 403 proscription against evidence which will cause "unfair prejudice," or an "undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." FED. R. EVID. 403, Notes of Advisory Committee on Proposed Rules. Because the trial judge is "much closer to the pulse of a trial," she is accorded broad discretion in balancing the probative value of the evidence against its prejudicial value. See United States v. Juarez, 561 F.2d 65, 71 (7th Cir. 1977). Thus, her decision to admit or exclude the other acts evidence is reversible only for abuse of discretion. See United States v. Chaimson, 760 F.2d 798, 808 (7th Cir. 1985) (quoting United States v. Brown, 688 F.2d 1112, 1117 (7th Cir. 1982)); Liefer, 778 F.2d at 1244.

The appellant challenges the admission of the 1981 stolen bond scheme and his 1984 plea agreement by alleging that three of the four prongs outlined in Shackleford are not satisfied here.*fn9 First of all, he claims that his 1981 acts do not go to any matter in issue such as intent, plan, or knowledge. In the present case, Harrod's defense rests on his claim that he did not participate in the bank fraud scheme. He thus contends that he did not put the question of intent into issue, so that the evidence should not have been introduced for that purpose. Because he allegedly did not put the issue of "knowledge" into dispute, Harrod also believes that the 1981 acts should not be admissible. The appellant makes similar arguments with regard to the ...


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