Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 87 CR 30046 -- William D. Stiehl, Judge.
Posner, Coffey, and Ripple, Circuit Judges.
The defendant-appellant Kevin Connelly and three other men were charged in a three coat indictment in connection with the November 1, 1985, armed robbery of CMC Electronics, a stereo and video store in Granite City, Illinois. The indictment alleged a conspiracy to transport stolen goods in interstate commerce, in violation of 18 U.S.C. §§ 2314 and 371 (Coat 1);*fn1 transportation of the stolen CMC merchandise in interstate commerce, in violation of 18 U.S.C. § 2314 (Count 2); and transporting and aiding and abetting the transportation in interstate commerce of a stolen CMC delivery van, in violation of 18 U.S.C. §§ 2312 and 2 (Count 3). The indictment also referred to but did not charge two other men as having participated in the CMC armed robbery. Prior to trial, two of the four charged defendants entered guilty pleas. The other two charged defendants, James Angell and the defendant-appellant Connelly, were tried jointly and Angell was acquitted on all counts. The jury acquitted Connelly on Count 3 and returned guilty verdicts on Counts 1 and 2. He was sentenced to concurrent terms of five and six years, respectively. Connelly on appeal claims that the trial judge improperly admitted evidence of his involvement in a prior, uncharged offense under Fed.R.Evid. 404(b), in order to establish Connelly's preparation, plan or identity with respect to the charged crime.
Michael Biederman, manager of CMC Electronics, testified that he was working with a CMC salesperson Shirley Mims the evening of November 1, 1985, when three or four black men entered the store posing as customers at approximately 8:00 p.m. Two of the men forced Biederman at gunpoint into the store's "car stereo room," where they bound his hands behind his back with duct tape, bound his feet with like tape, applied duct tape to his eyes and forced him to lie face down on the carpet. While lying on the floor he observed a walkie-talkie and a small revolver alongside his head.
Ms. Mims testified that before being blindfolded, two other men forced her at gunpoint into a separate room where her arms and feet were wrapped and her eyes were covered with duct tape and she was compelled to lie face down on the floor. The intruders proceeded to disengage the stereo and video display equipment from the walls and to gather and transport these items as well as other items out of the stock room into waiting vehicles parked nearby. Mims testified that during this period she heard a voice on a walkie-talkie and surmised that the robbers were conversing with someone outside the store. Approximately forty-five minutes after the arrival of the intruders they departed with CMC merchandise valued at $69,588.90 in a U-Haul truck they used to transport themselves in, together with a stolen CMC delivery van, and fled from the state of Illinois into Missouri.
Biederman testified that he was able to identify Connelly in a police lineup several days after the crime as one of the participants in the CMC armed robbery. Biederman also identified Connelly during trial as having been a participant in the CMC armed robbery. Ms. Mims, on the other hand, was unable to identify the appellant Connelly as a participant in the charged offense.
Over Connelly's objection the trial judge permitted the introduction of evidence that Connelly had previously participated in a crime similar to the offense under indictment, solely to establish preparation, plan or identity under Fed.R.Evid. 404(b).*fn2 Joe Whitworth, the victim of the prior crime, testified that at approximately 10:00 p.m. on October 4, 1985, (less than one month before the CMC armed robbery) two black men knocked on the door of his home in Cahokia, Illinois and forced him inside the house at gunpoint, where they covered his eyes and bound his hands (behind his back) with duct tape. Whitworth then heard one of the intruders converse with someone outside the house over what sounded to him like a walkie-talkie phone. Subsequently, he heard one or more people enter the house, though he was unable to visually observe the person or persons enter. The police reports reflect that the men departed within ten minutes after the entry, taking cash, jewelry, silver coins and other items. Whitworth made three separate positive identifications of the defendant-appellant Connelly as one of the men who broke into his home on October 4 -- on two separate occasions before trial, one from a photo display, then at a police lineup and a third time during trial.*fn3
Gary Brewer, a detective sergeant with the Cahokia, Illinois Police Department, corroborated the testimony of Whitworth and Biederman regarding their identification as well as Mims' failure to identify Connelly in a police lineup. Immediately after Brewer testified, the trial judge instructed the jury as follows:
"Ladies and gentleman, you have heard evidence from witnesses Joe Whitworth and Gary Brewer of acts of the defendant Kevin Connelly other than those charged in the indictment in this case. You may consider this evidence only on the question of preparation and plan. This evidence is to be considered by you only for this limited purpose. It is not to be considered in connection with defendant James C. Angell. Also, please bear in mind that defendant Connelly is not on trial here for the October 4 of 1985 robbery of Mr. Whitworth."*fn4
The government concluded its case with testimony from two unindicted co-conspirators in the CMC armed robbery (John Boyd and Ulysses Williams) and an indicted co-conspirator (Marvin Forniss, who entered a guilty plea prior to trial), all of whom admitted their involvement in the crime referred to in the indictment and testified at trial as to Connelly's participation in the charged offense as well. In addition, Ulysses Williams testified that he, the appellant Connelly and another man (not involved in the CMC crime) committed the Cahokia home invasion on October 4, 1985, and that they used duct tape and walkie-talkies in furtherance of the crime. After Williams' testimony, the trial judge again instructed the jury that Connelly's participation in the Cahokia home invasion could "only" be considered as to the question of identity, preparation and plan.
In defense, the appellant, his mother and his brother testified to the effect that the appellant was at an Illinois racetrack at the time of the CMC armed robbery. The appellant stated to the jury that he neither participated in, nor planned nor conspired to commit the crime. However, Connelly did admit receiving $600 from the sale of some of the stolen CMC merchandise. He also admitted that he took part in the October 4, 1985, Cahokia home invasion, and testified that he entered a guilty plea in state court on a charge of robbery in connection with that crime, for which he received three years probation. At the close of the evidence the trial judge once again instructed and reminded the jury that Connelly was not on trial for the Cahokia home invasion.
Connelly contends that the trial judge erred in admitting evidence of his participation in the Cahokia home invasion. Fed.R.Evid. 404(b), cited supra n.2, prohibits the introduction of acts extrinsic to the charged offense to establish the defendant's bad character or propensity to commit the crime under indictment. However, the government offered evidence of Connelly's prior criminal conduct under the plan, preparation or identity exceptions to Rule 404(b), and was entitled to present the evidence ...