Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 CR 462--James B. Moran, Judge.
Before Flaum, Chief Judge, and Bauer and Manion,
The opinion of the court was delivered by: Flaum, Chief Judge.
ARGUED SEPTEMBER 10, 2002
Defendant Akeem Anifowoshe was charged with one count of bank fraud in violation of 18 U.S.C. § 1344, 14 counts of possession of stolen mail in violation of 18 U.S.C. § 1708 and one count of mail fraud in violation of 18 U.S.C. § 1341. A jury found Anifowoshe guilty on all sixteen counts, and he was sentenced to 24 months in prison. Anifowoshe now appeals the conviction on three grounds. He claims that the district court erred in admitting evidence of a state conviction, erred in allowing a non-expert to provide testimony on the similarity of handwriting, and erred in providing the jury with a "conscious avoidance" instruction. For the reasons stated herein, we affirm.
The crimes for which Anifowoshe was convicted involve a scheme to defraud numerous banks in the Chicago area. From August 1995 to March 1996 someone opened accounts at various banks using one of five fictitious names--Eugene Bradford, Micheal *fn1 Johnson, William Sheron, Bernard Walker, and Paul Armstrong--for each account. One of three addresses was also given for each account--5919 South Calumet, Chicago; 60 East Chestnut, Chicago; and 16781 Torrence Avenue No. 214, Lansing.
Once these accounts were set up, the perpetrator of this fraud deposited stolen and forged credit card access checks into the accounts. The money, or at least some of it, was then withdrawn from the accounts through ATM withdrawals, debit card transactions and cashed checks.
On March 11, 1996, postal inspectors videotaped Anifowoshe entering a Mail Boxes Etc. at 16781 Torrence Avenue, Lansing. Anifowoshe entered the store and retrieved mail from Box 214 (where mail to the address 16781 Torrence Avenue No. 214 was being delivered). Anifowoshe was arrested the following day when he returned to the store.
A substantial mass of evidence ties Anifowoshe to the fraud scheme. When arrested he possessed a key to Box 214 and a cellular telephone registered to the name of William Sheron and the address of 5919 South Calumet, Chicago. Anifowoshe also possessed an identification card bearing the 16871 Torrence Avenue address. The card matched a photocopy of an identification card given to a Citibank employee in connection with one of the fraudulent accounts. The number on the card also matched the number written down by a First Chicago Bank employee in connection with one of the other fraudulent accounts. Additionally a photocopy of an Illinois driver's license given to a North Community Bank employee and bearing Anifowoshe's photograph was admitted into evidence. Finally, 26 documents--at least one relating to each charge--including checks and deposit and withdrawal slips bore Anifowoshe's fingerprints.
Based on this and other evidence Anifowoshe was charged with one count of bank fraud in violation of 18 U.S.C. § 1344, 14 counts of possession of stolen mail in violation of 18 U.S.C. § 1708 and one count of mail fraud in violation of 18 U.S.C. § 1341. A jury trial followed.
At trial the government sought to introduce evidence of a state theft charge to which Anifowoshe had pled guilty pursuant to Fed. R. Evid. 404(b). The court admitted the evidence over defense counsel's objection. The state charge related to a fraud scheme virtually identical to those at question in the instant case. On January 16, 1996, Anifowoshe opened an account at First National Bank of Illinois under the name Bernie Leslie. The address provided for the account was 16781 Torrence Ave., Lansing. Anifowoshe deposited stolen credit card access checks into the account. Anifowoshe was able to withdraw some of these funds before the proceeds of the account were frozen when the bank suspected fraud. Two of the checks deposited in the account displayed the address of 60 East Chestnut. One check drawn on the account was made payable to and cashed by Micheal Johnson.
Later during the trial Theodore Knesek, a fraud investigator at Old Kent Bank, was called to testify. On cross-examination defense counsel asked Knesek to compare the handwriting of the signatures borne on the signature cards associated with the fictitious account holders. On redirect the government, over defense counsel's objections, asked Knesek to compare the signature purporting to be that of Paul Armstrong with Anifowoshe's signature. Knesek noted that the handwriting appeared to be the same because of the similarities in the "A" in Armstrong and the "A" in Anifowoshe.
At the conclusion of trial the jury was instructed without objection. These instructions included a "conscious avoidance" instruction. The instructions were accepted by attorneys for both sides.
Anifowoshe was found guilty on all counts and sentenced to 24 months in prison.
a. Evidence of State Conviction Anifowoshe first claims that the district court improperly admitted evidence of other acts under Fed. R. Evid 404(b) *fn2 when it allowed the introduction of evidence concerning the state theft charge to which Anifowoshe had pleaded guilty.
We review a trial court's decision to admit evidence under Fed. R. Evid. 404(b) for abuse of discretion. See United States v. Vaughn, 267 F.3d 653, 658 (7th Cir. 2001). In determining whether a trial court has abused its discretion in the Rule 404(b) context, we apply a four-prong test asking whether:
(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 sufficient to support a jury finding that the defendant committed the similar act, and (4) the evidence has probative value that is not substantially outweighed by the danger of unfair prejudice. Id.
Each prong must be met for the evidence of other acts to be admissible.
Anifowoshe argues that because the act at issue in the state fraud conviction occurred subsequent to the acts at issue in the instant case the evidence is inadmissible. *fn3 He draws this conclusion from the language of this court in United States v. Betts, 16 F.3d 748 (7th Cir. 1994) abrogated on other grounds by United States v. Mills, 122 F.3d 346 (7th Cir. 1997). There we noted that "simply because evidence of a prior act is admissible under Rule 404(b) for a particular purpose does not mean that a similar but subsequent act is necessarily admissible for the same purpose." Id. at 757. Anifowoshe attempts to turn this language into a fifth prong to the established test. The language in Betts does not, however, support this argument. To say that evidence of a subsequent act is not necessarily admissible where evidence of a prior act was admissible is not to say that evidence of a subsequent act is never admissible. This is clear from our language in Betts:
Rule 404(b), of course, does not restrict evidence concerning the defendant's "other acts" to events which took place before the alleged crime; by its very terms, 404(b) does not distinguish between "prior" and "subsequent" acts. The critical question is whether the evidence is sufficiently probative of a matter within the rule's purview. Depending upon the factual circumstances, the chronological relationship of the charged offense and the other act may well have some bearing on this inquiry, but it is not necessarily dispositive. Id. at 757 (citations and internal quotations omitted).
The appropriate analysis is the well-established four-prong test. The timing of the act is only relevant inasmuch as it affects ...