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United States v. Joseph

November 12, 2002


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 CR 120--Charles P. Kocoras, Chief Judge.

Before Coffey, Ripple and Kanne, Circuit Judges.

The opinion of the court was delivered by: Ripple, Circuit Judge


Eugene Joseph was convicted of bank fraud, 18 U.S.C. § 1344, and sentenced to 10 months' incarceration and 3 years' supervised release. On appeal, Mr. Joseph submits that the district court erred by admitting "other crimes" evidence, specifically, a mail theft not charged in the federal indictment. We affirm the judgment of the district court.


In early 1996, Mr. Joseph, using two different aliases, Donnell Cooper and Chloe Emers, opened several bank accounts at four Chicagoland banks, stole credit-card convenience checks, made them out to his aliases and then deposited and withdrew funds from the fraudulent accounts.

Mr. Joseph was apprehended in June 1996 after Lincoln National Bank employees became suspicious of the "Cooper" account. Mr. Joseph (representing himself as Cooper) had called Lincoln National Bank and directed that the bank close his account and mail a check for the account balance to his postal box in Chicago. After notifying postal inspectors of the suspected fraud, the bank sent a check, addressed to Donnell Cooper, to the specified postal box. Postal inspectors set up surveillance at the mailbox facility and arrested Mr. Joseph when he retrieved the mail addressed to Donnell Cooper.

As a result, Mr. Joseph faced both state and federal charges. Mr. Joseph first was convicted in state court of theft of government property based upon his retrieval of the check mailed by Lincoln National Bank to Donnell Cooper. Two months later, as a result of related conduct, he was also convicted in state court of theft by deception. Later, in February 1999, a federal grand jury indicted Mr. Joseph on one count of bank fraud. It was evidence of the mail "theft" that became a source of dispute in the federal bank fraud case.

Both parties agree that the evidence presented at trial clearly demonstrated fraud; someone using the names Cooper and Emers had deposited stolen checks and then had withdrawn the proceeds. The principal dispute at trial centered on whether Mr. Joseph was the perpetrator. To identify Mr. Joseph, the Government used handwriting, fingerprints, evidence of uncharged attempted fraud, and evidence linking him with the names and addresses on the false accounts. In a pretrial motion in limine, the Government sought leave to introduce evidence that Mr. Joseph stole the envelope addressed to Donnell Cooper while carrying out the charged fraud on Lincoln National Bank. Mr. Joseph objected to the evidence on the grounds that its prejudicial effect far outweighed its probative value, that the mail theft was not sufficiently connected to the charged bank fraud to be intricately related, and that the mail theft was not probative of any issue in the bank fraud case. The district court admitted evidence of the mail theft under Federal Rule of Evidence 404(b). On appeal, Mr. Joseph challenges that decision.

After the district court ruled on the admissibility of the mail theft evidence, the parties stipulated to what facts the jury would hear, and that stipulation was read to the jury at the close of the Government's case. As part of its final jury charge, the district court included a Rule 404(b) limiting instruction regarding the narrow way in which the mail theft evidence could be used.


Mr. Joseph presents one argument on appeal: that the district court erred in admitting evidence that he stole the Lincoln National Bank check from the postal box.

A. Waiver

At the outset, the Government suggests that we cannot review the evidentiary ruling because Mr. Joseph waived his right to challenge the admissibility of the disputed evidence by failing to object properly in the district court. It is true that defense counsel did not cite Rule 404(b) explicitly at the motion-in-limine hearing, but he did say enough to preserve that ground for appeal. It was clear to everyone at the hearing that the parties were arguing about Rule 404(b). See Fed. R. Evid. 103(a)(1) (to preserve evidentiary objection for appeal, party must make a "timely objection or motion to strike . . . stating the specific ground of objection, if the specific ground was not apparent from the context"); United States v. Whitaker, 127 F.3d 595, 601 (7th Cir. 1997). Moreover, to the extent that the Government argues that Mr. Joseph effectively withdrew his objection by later stipulating about the mail theft, it is sufficient to note that the district court had already ruled definitively on its admissibility. Mr. Joseph was not compelled to ...

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