United States v. LaFlora , 146 F. App'x 973 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 31, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-3286
v. (D. Kan.)
MARICO M. LAFLORA, (D.C. No. 03-CR-10230-01-WEB)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. **
Marico M. LaFlora was convicted of bank robbery and use of a firearm
during the robbery of a bank in Wichita, Kansas. He appeals the district court’s
decision to admit evidence of his prior bank robbery convictions pursuant to Rule
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
404(b) of the Federal Rules of Evidence. Taking jurisdiction pursuant to 28
U.S.C. § 1291, we find the district court did not err and affirm.
BACKGROUND
On July 14, 2000, a group of three men entered the State Bank of Colwich
in Wichita, Kansas. One man was dressed in a suit and tie and the other two were
dressed in orange construction vests and baseball hats. Without donning masks,
the three men drew guns and proceeded to rob the bank. The man in the suit
demanded he be let into the vault, and there he and one of his accomplices stole
approximately $70,000. During the robbery, the three men communicated with
one other and one or more unseen accomplices using two-way radios. The three
men fled the bank in a stolen car, which they abandoned nearby for another car.
The next month, and again in September 2000, two California banks were
robbed. One of the men was dressed in a suit or a coat and tie, and at least one of
the two accomplices was dressed in a type of uniform, in one case a security
officer’s uniform, and in the other a Federal Express uniform. The three men
robbed the banks at gunpoint, none of them wore a mask, and they communicated
using two-way radios. During the August robbery, the man in the suit entered the
vault, along with one of his accomplices, and absconded with approximately
$100,000. During the September robbery, however, a customer entered the bank
and, realizing a robbery was in progress, left to call the police. The robbers
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aborted their scheme. After both California robberies, the robbers fled the scene
in a stolen car, which was abandoned shortly thereafter for a U-Haul truck.
Immediately after the foiled robbery, the police, based on tips from
eyewitnesses, found and arrested three men and one woman at a hotel. One of the
males in this group was LaFlora. Subsequently, LaFlora pled guilty to the two
California bank robberies. He is currently serving an eighteen-year sentence for
those crimes.
As a result of an FBI investigation in Kansas, LaFlora was indicted for the
Wichita robbery. Intending to use evidence of the California crimes to show
identity, the prosecution filed a pretrial motion in limine regarding the
admissibility of the prior crimes evidence. LaFlora objected and the court held an
evidentiary hearing. The district court judge concluded the prosecution could
submit the evidence of the California robberies to show modus operandi—identity
and a common scheme—under Fed. R. Evid. 404(b).
DISCUSSION
We review a district court’s decision to admit evidence of LaFlora’s other
crimes or bad acts under Rule 404(b) for an abuse of discretion. United States v.
Shumway , 112 F.3d 1413, 1419 (10th Cir. 1997).
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Evidence under Rule 404(b) 1
of other crimes or bad acts can be admitted if
four requirements are met. See Huddleston v. United States , 485 U.S. 681, 691-
92 (1988); United States v. Zamora , 222 F.3d 756 (10th Cir. 2000). The first
requirement is that the proffered evidence is for a purpose authorized by Rule
404(b) (evidence may be admissible for purposes such as “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident”) . Second, the evidence must be relevant. Third, the probative value
of the evidence must not be outweighed by its prejudicial effect. Finally, if
requested by the defense, the trial court must tender a limiting instruction to the
jury. LaFlora argues only that the evidence at issue in this case does not meet the
first Huddleston requirement. We have consistently held that evidence of
“modus operandi” or a common plan or scheme may be properly submitted under
404(b). See, e.g., United States v. Gutierrez , 696 F.2d 753, 755 (10th Cir. 1982).
In Gutierrez , also a bank robbery case, we explained that “[i]f the crimes share
elements that possess ‘signature quality,’ evidence of the ‘other crime’ may be
admitted.” Gutierrez , 696 F.2d at 755 (finding sufficient signature quality where,
among other similarities, the defendant drove the getaway vehicle and used her
Federal Rule of Evidence 404(b) provides that “[e]vidence of other crimes,
1
wrongs, or acts is not admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident[.]”
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children as “cover” in both the prior bank robbery and the bank robbery at issue
in the case). We have also held the “other crime” must be similar to the crime
charged, but it need not be “identical.” United States v. McGuire , 27 F.3d 457,
461 (10th Cir. 1994) (citing Gutierrez , and finding a “pattern” and “common
plan” where in seven other bank robberies, the defendants traveled by van to a
medium-sized city, stayed in town for one to two days, purchased an inexpensive
used car, and had a specific getaway driving strategy, among other similarities).
Here, the district court permitted the prosecution to present evidence of
LaFlora’s prior bank robbery convictions under Rule 404(b) for the purpose of
identifying LaFlora as one of the men who robbed the bank in Wichita, because
the modus operandi for each robbery was similar. LaFlora argues that no
reasonable person could conclude that the same person participated in both the
Wichita and California bank robberies. He cites to United States v. Carroll , 207
F.3d 465, 469 (8th Cir. 2000), for the proposition that the 404(b) evidence
regarding similar crimes is inadmissible unless “the District Court [can] make a
threshold determination that, based solely on the evidence comparing the past acts
and the charged offense, a reasonable juror could conclude that the same person
committed both crimes.” LaFlora then argues no reasonable juror could conclude
he committed the California and Wichita robberies because they were
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geographically distant and the common characteristics among them are common
to all robberies. We disagree.
First, the robberies at issue here were close in time, evidencing a common
plan. Second, there are several characteristics shared by all the robberies. For
each robbery, (1) a bank was targeted; (2) there were three men armed with
handguns; (3) the robbers did not wear masks; (4) one robber wore a suit or coat
and tie; (5) at least one of the robbers wore a work uniform, in one robbery a
construction vest, in the other two a security officer uniform and a Federal
Express uniform; (6) two of the robbers entered the bank vault, while the other
guarded the lobby; (7) the cars used to flee the scenes were abandoned a short
distance from the banks; and (8) the robbers used a two-way radio device to
communicate with another unseen accomplice.
These shared characteristics form a sufficiently unique modus operandi,
making evidence of past robberies properly admissible under 404(b) to show
identity and common plan. Accordingly, the district court did not abuse its
discretion in admitting the evidence, and we AFFIRM.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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