Keeping the Faith: 5th Circuit Deems Evidence of Co-Defendant's Prior Solo Robbery Inadmissible as Habit Evidence

A first man agrees to give a second man a ride. After the ride, the second man robs a bank. The prosecution claims that the first man knew that the second man planned to rob the bank. The first man contends that he was unaware of the second man's criminal intentions. As evidence of this ignorance, the first man seeks to present evidence of a solo bank robbery committed by the second man two weeks before the crime charged. How should the court rule? Let's take a look at the recent opinion of the Fifth Circuit in United States v. Anderson, 2014 WL 2808128 (5th Cir. 2014).

In Anderson, the facts were as stated above, with Joseph Anderson as the first man and Jeremy Butler as the second man. The Rule relied upon by the defendant was Federal Rule of Evidence 406, which provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

The district court deemed evidence of Butrler's prior robbery inadmissible at trial, and 

Anderson argue[d] on appeal that evidence related to Butler's prior solo bank robbery was crucial and probative to his defense because it made it more probable that Butler acted alone....Anderson's defense at trial was that he, in good faith, gave Butler a ride without any knowledge of Butler's proclivity toward robbing banks and without knowledge of Butler's intent to commit a bank robbery...Therefore, Anderson argue[d], he was erroneously precluded from presenting his "affirmative defense of good faith and lack of knowledge."

The Fifth Circuit disagreed, finding that

Anderson provide[d] no authority supporting the notion that details of one of Butler's prior criminal acts are probative to Anderson's guilt or innocence in this case.FN2 Moreover, this evidence does not meet the threshold requirements for habit evidence under FRE 406 because there was no evidence that robbing banks alone was Butler's "regular practice."...The fact that Butler committed one prior bank robbery alone does not demonstrate that...he acted in conformity with a habit of committing bank robberies alone.  

FN2. To the contrary, we explained in United States v. Nelson that in the context of multi-party criminal endeavors, one individual's history of independent criminal conduct does not make it more or less probable that other parties were involved in the alleged joint criminal conduct at issue. 242 F. App'x 164, 172 (5th Cir.2007) (unpublished).

-CM