United States v. Dunkin, Joseph ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1677
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JOSEPH E. DUNKIN,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 354—Robert W. Gettleman, Judge.
____________
ARGUED DECEMBER 8, 2005—DECIDED FEBRUARY 22, 2006
____________
Before BAUER, POSNER, and KANNE, Circuit Judges.
POSNER, Circuit Judge. Joseph Dunkin was convicted by a
jury of two bank robberies, committed about a month apart,
and was sentenced to a total of 210 months in prison. His
only defense at trial was that he had been coerced to rob the
banks, and his only complaint on appeal is that the intro-
duction by the government, to refute his defense, of another,
unsolved bank robbery that he had committed five years
earlier was unduly prejudicial and should therefore have
been excluded from evidence under Rule 403 of the Federal
Rules of Evidence (he says under 404(b), but that, as we’ll
see, is mistaken).
2 No. 05-1677
In the first of the two robberies with which Dunkin was
charged, he gave a teller a note that said “I have a gun, give
me the cash,” and displayed to the teller what she testified
“looked like a gun” or the “nozzle [a delicious malaprop-
ism] of a gun.” She gave him $1308 and he pocketed the
money and left. Surveillance cameras showed an unidenti-
fied man in the background during the robbery.
In the second robbery, which was of a different branch of
the same bank, Dunkin entered in the company of another
man and they talked briefly while Dunkin was waiting in
the teller’s line. When he reached the front of the line he
gave the teller a note similar to the one he had given the
teller in the previous robbery, except that it demanded only
$300. The teller gave Dunkin a bundle of bills (which he
failed to count—it contained only four $20 bills) wrapped
around a dye-pack. Dunkin left; his companion remained in
the bank. The teller summoned the bank’s security guard,
who rushed out to the parking lot and found Dunkin sitting
in a taxicab covered with the red dye from the dye-pack,
which had exploded shortly after he left the bank. Dunkin
told the guard that the other men in the parking lot had
“made me do it,” that they were holding his mother hos-
tage, that they had a machine gun, and that “they always
make me do this because I am a homosexual.” The guard
questioned the men in the parking lot, who denied having
had anything to do with the robbery. As for the man who
had entered the bank with the defendant, he assisted the
guard in arresting the defendant and later returned to the
bank in the company of a second man, one of the men who
had been in the parking lot. They were seeking a reward.
They gave the bank their names.
Dunkin elaborated upon his tale of coercion to the FBI. He
said that “Big Ripple,” the leader of a drug gang, had
ordered him to rob the banks in order to repay a debt of
No. 05-1677 3
several hundred dollars that he owed the gang for drugs,
and had told him that if he didn’t commit the robberies Big
Ripple would kill Dunkin’s mother, sister, and brother—the
last a member of the Illinois state assembly. Big Ripple was
attended by other gang members, whom Dunkin identified
to the FBI as “Big Unc,” “Shorty G,” and “Little Mo.”
Dunkin said that when he left the bank after the second
robbery he entered the gang members’ car and that was
when the dye-pack exploded; the occupants screamed “this
shit’s on fire” and he jumped out of the car and into the cab.
He also told the FBI that he had committed a similar
robbery (hitherto unsolved) in 1998, and that the same gang
had made him commit that robbery also. The surveillance
video from the earlier robbery was recovered and it showed
not only the defendant committing the robbery but also an
unidentified man in the background.
The FBI interviewed the two men who had returned to the
bank after the defendant’s arrest, in (unsuccessful) quest of
a reward. One, it turned out, was the driver of the car into
which Dunkin had first rushed after the second robbery,
and he acknowledged having driven Dunkin to the bank but
denied knowing that Dunkin intended to rob it. The other
was a homeless man; it was he who had entered the bank
with Dunkin. The FBI investigated the two and concluded
that neither had any gang affiliation.
A defense should not be submitted to the jury, even in a
criminal case, if there is no credible evidence to support it.
United States v. Hendricks, 319 F.3d 993, 1006 (7th Cir. 2003);
United States v. Nelson-Rodriguez, 319 F.3d 12, 40 (1st Cir.
2003). Submission in such circumstances is just an invitation
to jury nullification, a practice that is improper, though the
remedies against it are limited. Dunkin’s defense of coercion
should not have been submitted. His tale was fantastic and
4 No. 05-1677
was refuted by the 1998 robbery (of which more shortly).
Even if believed, his testimony would not have established
coercion. An essential element of the defense is that the
defendant had no alternative to submitting to the demand
that he commit a crime. United States v. Bailey, 444 U.S. 394,
410 (1980); United States v. Johnson, 416 F.3d 464, 468 (6th
Cir. 2005). Five years gave Dunkin ample alternatives. In
particular, he could have complained to the police immedi-
ately after the 1998 robbery, for there is no suggestion that
Big Ripple and his associates were holding Dunkin’s mother
hostage then. Or for that matter after the first of the 2003
robberies. Without a requirement that the defendant negate
alternatives to committing crimes, the coercion defense
would expand to unreasonable proportions, providing a
ready excuse to members of the underworld, whose envi-
ronment is indeed menacing.
But since the judge decided to let Dunkin present a
defense of coercion, the government was entitled to present
the evidence of the 1998 robbery to refute the defense. Rule
404(b) of the Federal Rules of Evidence forbids the govern-
ment to present evidence of the defendant’s prior crimes in
order to show that he has a propensity to commit crimes, or
that he is simply a bad man, and that in either case the jury
might as well convict him without worrying whether the
government has actually proved him guilty beyond a
reasonable doubt of the crime for which he is being tried.
But there is no prohibition in the rule against using prior-
crime evidence for other purposes, such as to demonstrate
the implausibility of a defense of coercion. United States v.
Cunningham, 103 F.3d 553, 556 (7th Cir. 1996); United States
v. Sargent, 98 F.3d 325, 329 n. 1 (7th Cir. 1996); United States
v. Verduzco, 373 F.3d 1022, 1026-27 (9th Cir. 2004). Dunkin
is correct that such evidence can be disallowed if it is
deemed unduly prejudicial, but is incorrect that this is
No. 05-1677 5
required by Rule 404(b). The rule does not mention preju-
dice. The pertinent rule is 403, United States v. Whitlow, 381
F.3d 679, 686 (7th Cir. 2004); United States v. Rhodes, 229 F.3d
659, 661 (7th Cir. 2000); United States v. Garcia-Meza, 403 F.3d
364, 368-69 (6th Cir. 2005), which authorizes relevant
evidence to be excluded, but only “if its probative value is
substantially outweighed by the danger of unfair prejudice”
(or by other factors, irrelevant to this case).
The probative value of the 1998 robbery in relation to the
defense of coercion was considerable; less obviously, the
prejudicial effect was slight. Dunkin had confessed to the
two 2003 robberies. So there was no doubt that he was a
bank robber, and therefore there was no occasion for the
jury to infer from the 1998 robbery that he had probably
committed the later robberies as well—they knew he had
committed them—he confessed them to an FBI investigator,
who testified to the confession. Moreover, their commission
was an essential premise of the defense of coercion. Dunkin
would have been laughed out of court had he testified both
that he didn’t rob the banks and that he had been forced to
rob them.
Of course the jury may have thought him a worse person
because he had committed (at least) three rather than two
bank robberies. But that rather slight prejudicial effect was
dwarfed by the probative effect of the 1998 robbery in
refuting his defense of coercion.
AFFIRMED.
6 No. 05-1677
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-22-06