Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 CR 771-1--William J. Hibbler, Judge.
Before Cudahy, Diane P. Wood, and Evans, Circuit Judges.
The opinion of the court was delivered by: Cudahy, Circuit Judge
Robert Rollins was charged with four counts of bank robbery, in violation of 18 U.S.C. § 2113(a), and four counts of using/carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Rollins pleaded not guilty and was convicted at trial on all counts. Rollins now appeals, challenging the district court's decisions (1) not to sever the counts of the indictment, (2) not to exclude "other crimes" evidence under Rule 404(b) of the Federal Rules of Evidence, (3) not to dismiss the case against Rollins on the novel theory that the passage of the National Emergency Act in 1976 resulted in the repeal of the federal bank robbery statute. We now AFFIRM the judgment of the district court.
Robert Rollins committed a bank robbery in Independence, Missouri and was subsequently apprehended. In a proffer, later repudiated, Rollins apparently admitted to four armed bank robberies in Chicago during the preceding months. The robberies in Chicago occurred between December 30, 1998 and February 19, 1999. The Missouri robbery occurred eleven days after the last Chicago robbery. Rollins was eventually indicted for the Chicago robberies and charged with four counts of bank robbery, 18 U.S.C. § 2113(a), and four related counts of using/carrying a firearm in a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii). Rollins pleaded not guilty, and the case was tried before a jury.
Before trial, Rollins made a motion to sever the indictment and order separate trials for each of the four robberies. The government, however, persuaded the district court to permit joinder of the criminal counts and, pursuant to Rule 404(b) of the Federal Rules of Evidence, to allow "other crimes" evidence from the Missouri bank robbery. The government argued that evidence from the Missouri robbery, in combination with Rollins' statements during his proffer on April 14, 1999, demonstrated a common modus operandi for all five robberies and a developing knowledge of the banks' security measures.
Because the legal issues in this case turn on factual parallels among five bank robberies (four of them specified in the indictment), we will describe chronologically the testimony and evidence related to each crime. At the outset, we identify the salient features, reflected in evidence, that emerge from most, if not all, of the robberies: (1) the donning of thick, dark-framed glasses (described by one victim teller as "make believe"); (2) the wearing of a beige, three-quarter length down coat, which was positively identified as a government exhibit after it was recovered from the Rollins' home; (3) the ruse of asking seemingly innocuous customer questions before and during the robberies; (4) the use of a handgun that was "mostly black," black and silver, or black and grey; (5) the description of the robber by witnesses as a medium to dark complected African-American male, approximately 5'10" to 6'0" tall, with a thin build and a narrow face; and (6) positive courtroom identifications of Rollins by victim bank tellers.
The first robbery occurred on December 30, 1998 at the Metropolitan Bank on South Archer Avenue in Chicago. Based on the trial testimony of bank employees, certain information about this heist is known. The perpetrator was an African-American male approximately twentyfive to thirty years old, 5'10" to 5'11" in height and weighing 140 to 160 pounds. He was wearing black gloves and big, black-framed glasses, and he approached the teller counter to ask for change. The teller asked the robber for an account number, and the robber in turn handed the teller a note demanding money. After the teller emptied her drawer, the perpetrator took the money and left. Several months later, the teller picked Rollins' photo out of a photo lineup. She also positively identified Rollins at trial.
The second robbery occurred on the morning of January 14, 1999 at the North Community Bank on North Broadway. Based on the trial testimony of bank employees, certain information is known about this robbery. Two robbers entered the bank, with one approaching the desk of a personal banker and the other walking to a teller window. The teller reported that the robber who approached his window was a medium-complected African-American male with brown eyes, in his mid-twenties, approximately 5'10" to 5'11" in height and with a skinny build and a skinny face. The robber was wearing black-framed glasses and a down, mid-length cream and gray coat with a hood. He was also carrying an Eastpack-brand book bag with red strings hanging off the zipper. After initially asking some questions about opening a savings account, the robber pointed a black and gray automatic handgun at the teller and demanded money. The teller complied but also gave the robber a dye pack of fake money, designed to explode once it left the bank.
When another teller approached the same window, the robber demanded the contents of his cash drawer as well. While this money was being inserted into the black book bag, the first teller hit a silent alarm button that notified the police of a robbery in progress; the button also activated a bank camera. Unaware that his actions were now being recorded, the robber then demanded the contents of a third teller's drawer. At trial, the third teller testified that the perpetrator was a dark-complected African-American male in his early twenties, approximately 5'10" to 6'0" tall, having a lean build with an elongated face, and wearing a baseball cap; dark, thickframed glasses; and a cream and navy down, mid-length hooded coat.
While the robbery was underway, the robber at the teller window approached his accomplice who was at the personal banker's desk and asked him if everything was all right before returning to the teller window. At this point, the personal banker had a clear view of the face of the robber who had approached the teller. The personal banker stated that this robber was 5'10" to 5'11" in height with a slim build and a narrow face. He was wearing oversized round glasses and a three-quarter length, light and dark multi-colored winter coat.
After getting the money, the robber at the teller window asked the first teller questions about the Chicago Bulls and Michael Jordan. The robber then slowly stepped back, ...