Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 CR 970-Harry D. Leinenweber, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge.
Before BAUER, WOOD and WILLIAMS,Circuit Judges.
A jury convicted Javier Reyes of conspiracy to commit bank robbery, bank robbery, and possessing and brandishing a handgun in furtherance of violence. The district court sentenced Reyes to 300 months' imprisonment. On appeal, Reyes argues that the district court erred in allowing evidence of his prior bad acts, limiting the scope of cross-examination of a co-defendant witness, and denying his motion for new trial. For the following reasons, we affirm.
In the early morning of August 23, 2004, Antonio Vasquez, Ramon Berrios, Walter DeJesus, and Jose Torres robbed the WECO Credit Union in West Chicago, Illinois. Around 7:00 a.m., DeJesus entered the Credit Union while the others kept watch outside in two separate cars. DeJesus, brandishing a gun, led Ron Schuermann, the only employee on duty at that time, to the rear of the building. Vasquez then entered the Credit Union, emptied money from an open safe, opened a second safe with keys found in the first safe, and demanded that Schuermann divulge the combination to a third safe. Schuermann obliged. After packing up the money from the third safe, the two men returned to the cars and drove off.
During the robbery, Reyes was many miles away, enjoying a vacation in the Wisconsin Dells. But he had his own connection to the Credit Union. Earlier in the year, Reyes had worked there as a loan officer, but had been fired after three months on the job. While in the process of getting fired, Reyes overheard that the Credit Union's security cameras did not work.
According to Vasquez, DeJesus, and Torres-all of whom would later testify for the government against Reyes pursuant to a cooperation agreement-in mid-August, 2004, Reyes had a series of conversations with each of them in which they discussed robbing the Credit Union. Eventually, Reyes provided DeJesus and Vasquez with information that: (1) the security cameras at the Credit Union did not work; (2) Schuermann, the President of the Credit Union, would be working alone between 7:00 and 8:00 a.m.; (3) the Credit Union had three safes, the first of which would have the keys to the second, and the third of which would require the combination kept by Schuermann. In addition, Reyes drew a map of the floorplan of the Credit Union, showing the locations of the safes, the panic switches for the alarms, and the entrances and exits to the building. Reyes, according to his co-conspirators, gave further instructions on what to do with the proceeds of the robbery and told of his intention to create an alibi by heading to Wisconsin. After the robbery, Reyes made several demands regarding his share of the profits.
On January 11, 2005, a grand jury indictment charged Reyes with conspiracy to commit bank robbery in violation of 18 U.S.C. § 371 (Count I); bank robbery in violation of 18 U.S.C. § 2113(a) (Count II); and possessing and brandishing a handgun in furtherance of violence in violation of 18 U.S.C. § 924(c)(1)(A) (Count III). Reyes's defense relied on attacking the testimony of the co-defendants as inconsistent and biased. He also argued that, if he had disclosed information to his co-defendants, he did so innocently and without any intent to commit a crime. On October 19, 2005, the jury found Reyes guilty of all charges. Reyes filed a motion for a new trial on November 9, 2005 and another motion for a new trial claiming newly discovered evidence on April 26, 2006.
On August 31, 2006, the district court denied both motions. That same day, the court sentenced Reyes to 60 months' imprisonment on Count I and 216 months' imprisonment on Count II, to be served concurrently. The court also sentenced Reyes to 84 months' imprisonment for Count III, to be served consecutively to the sentences for Counts I and II. The court also imposed a three-year term of supervised release, a special assessment of $300, and restitution in the amount of $107,803.36. This timely appeal followed.
On appeal, Reyes argues that the district court:
(1) abused its discretion in granting the government's motion to allow evidence of Reyes's alleged prior criminal behavior; (2) denied Reyes a fair trial by narrowing the scope of his cross-examination of Torres; and (3) abused its discretion in denying his motion for a new trial based on newly discovered evidence. We will address each issue in turn.
A. Introduction of Rule 404(b) Evidence
Prior to trial, the government filed a motion asking the district court to allow the introduction of evidence of prior bad acts of Reyes under Federal Rule of Evidence 404(b). The evidence involved Reyes's participation in a series of previous robberies and a bank fraud scheme with two of his co-conspirators.
At Reyes's trial, DeJesus testified that he had participated in "[a]bout two" other robberies with Reyes. He testified that the two had participated in the robbery of a bowling alley "[a]round 2003" and the robbery of a house in "[e]arly 2003 or late 2002." DeJesus gave no other details about either robbery.
Torres testified that he and Reyes "had done another robbery before" but were never caught. According to Torres, the robbery occurred "in 2003 in Hinsdale-or Hinkley." Torres further testified that Reyes had attempted to involve him in a scheme whereby Torres would pose as a Credit Union customer and withdraw money from that customer's account. However, Torres chose not to participate in the crime, offering an oddly generous reason for his decision: "It wasn't a fair split. He was talking about like $5,000. I would get $4,500 and he would get $500."
The government argued that the evidence was necessary to show "the nature and strength of the relationship between [the] co-conspirators" and "to show [Mr. Reyes's] intent in providing information to them." The court stated:
Well, it is propensity evidence, but it also would rebut the fact that the defendant innocently disclosed certain information which made the bank robbery feasible or possible. If that's your defense, then I'm going to grant their motion and allow them to introduce that. If that's not your defense, then I would be inclined to believe that the prejudice certainly exceeds-that the propensity, it's certainly more proof of propensity. But I think that they're entitled to know that they had previous relationships, you know, that make it more likely, makes it certainly more likely true that he didn't believe that he was innocently disclosing information. So it all depends on what your defense is.
The court ultimately ruled that it would allow the prior acts because it was relevant as to whether Reyes unwittingly provided the ...