Anifowoshe, Akeem v. United States

• Court: Court of Appeals for the Seventh Circuit
• Decided: October 9, 2002
• Docket: 01-1761
• Status: Published

Opinion

In the United States Court of Appeals For the Seventh Circuit ____________

No. 01-1761 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

AKEEM ANIFOWOSHE, Defendant-Appellant. ____________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 CR 462—James B. Moran, Judge. ____________ ARGUED SEPTEMBER 10, 2002—DECIDED OCTOBER 9, 2002 ____________

Before FLAUM, Chief Judge, and BAUER and MANION, Circuit Judges. FLAUM, Chief Judge. Defendant Akeem Anifowoshe was charged with one count of bank fraud in violation of 18 U.S.C. § 1344, 14 counts of possession of stolen mail in violation of 18 U.S.C. § 1708 and one count of mail fraud in violation of 18 U.S.C. § 1341. A jury found Anifowoshe guilty on all sixteen counts, and he was sentenced to 24 months in prison. Anifowoshe now appeals the conviction on three grounds. He claims that the district court erred in ad- mitting evidence of a state conviction, erred in allowing a non-expert to provide testimony on the similarity of handwriting, and erred in providing the jury with a “con- 2 No. 01-1761

scious avoidance” instruction. For the reasons stated herein, we affirm.

I. Background The crimes for which Anifowoshe was convicted involve a scheme to defraud numerous banks in the Chicago area. From August 1995 to March 1996 someone opened ac- counts at various banks using one of five fictitious names— Eugene Bradford, Micheal1 Johnson, William Sheron, Bernard Walker, and Paul Armstrong—for each account. One of three addresses was also given for each account— 5919 South Calumet, Chicago; 60 East Chestnut, Chicago; and 16781 Torrence Avenue No. 214, Lansing. Once these accounts were set up, the perpetrator of this fraud deposited stolen and forged credit card access checks into the accounts. The money, or at least some of it, was then withdrawn from the accounts through ATM withdrawals, debit card transactions and cashed checks. On March 11, 1996, postal inspectors videotaped Anifowoshe entering a Mail Boxes Etc. at 16781 Torrence Avenue, Lansing. Anifowoshe entered the store and re- trieved mail from Box 214 (where mail to the address 16781 Torrence Avenue No. 214 was being delivered). Anifowoshe was arrested the following day when he re- turned to the store. A substantial mass of evidence ties Anifowoshe to the fraud scheme. When arrested he possessed a key to Box 214 and a cellular telephone registered to the name of William Sheron and the address of 5919 South Calumet, Chicago. Anifowoshe also possessed an identification card bearing the 16871 Torrence Avenue address. The card

1 The name used was “Micheal” not “Michael.” No. 01-1761 3

matched a photocopy of an identification card given to a Citibank employee in connection with one of the fraud- ulent accounts. The number on the card also matched the number written down by a First Chicago Bank employee in connection with one of the other fraudulent accounts. Additionally a photocopy of an Illinois driver’s license given to a North Community Bank employee and bear- ing Anifowoshe’s photograph was admitted into evidence. Finally, 26 documents—at least one relating to each charge—including checks and deposit and withdrawal slips bore Anifowoshe’s fingerprints. Based on this and other evidence Anifowoshe was charged with one count of bank fraud in violation of 18 U.S.C. § 1344, 14 counts of possession of stolen mail in violation of 18 U.S.C. § 1708 and one count of mail fraud in violation of 18 U.S.C. § 1341. A jury trial followed. At trial the government sought to introduce evidence of a state theft charge to which Anifowoshe had pled guilty pursuant to Fed. R. Evid. 404(b). The court admitted the evidence over defense counsel’s objection. The state charge related to a fraud scheme virtually identical to those at question in the instant case. On January 16, 1996, Anifowoshe opened an account at First National Bank of Illinois under the name Bernie Leslie. The address provided for the account was 16781 Torrence Ave., Lansing. Anifowoshe deposited stolen credit card access checks into the account. Anifowoshe was able to withdraw some of these funds before the proceeds of the account were frozen when the bank suspected fraud. Two of the checks deposited in the account displayed the address of 60 East Chestnut. One check drawn on the account was made payable to and cashed by Micheal Johnson. Later during the trial Theodore Knesek, a fraud investi- gator at Old Kent Bank, was called to testify. On cross- examination defense counsel asked Knesek to compare the 4 No. 01-1761

handwriting of the signatures borne on the signature cards associated with the fictitious account holders. On redirect the government, over defense counsel’s objections, asked Knesek to compare the signature purporting to be that of Paul Armstrong with Anifowoshe’s signature. Knesek noted that the handwriting appeared to be the same because of the similarities in the “A” in Armstrong and the “A” in Anifowoshe. At the conclusion of trial the jury was instructed without objection. These instructions included a “conscious avoid- ance” instruction. The instructions were accepted by attor- neys for both sides. Anifowoshe was found guilty on all counts and sentenced to 24 months in prison.

II. Discussion a. Evidence of State Conviction Anifowoshe first claims that the district court improp- erly admitted evidence of other acts under Fed. R. Evid 404(b)2 when it allowed the introduction of evidence con- cerning the state theft charge to which Anifowoshe had pleaded guilty.

2 Fed. R. Evid. 404(b) provides: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a per- son in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of mo- tive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall pro- vide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the gener- al nature of any such evidence it intends to introduce at trial.” No. 01-1761 5

We review a trial court’s decision to admit evidence under Fed. R. Evid. 404(b) for abuse of discretion. See United States v. Vaughn, 267 F.3d 653, 658 (7th Cir. 2001). In determining whether a trial court has abused its discre- tion in the Rule 404(b) context, we apply a four-prong test asking whether: (1) the evidence is directed toward establishing a mat- ter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the evidence has probative value that is not substantial- ly outweighed by the danger of unfair prejudice. Id. Each prong must be met for the evidence of other acts to be admissible. Anifowoshe argues that because the act at issue in the state fraud conviction occurred subsequent to the acts at issue in the instant case the evidence is inadmissi- ble.3 He draws this conclusion from the language of this court in United States v. Betts, 16 F.3d 748 (7th Cir. 1994) abrogated on other grounds by United States v. Mills, 122 F.3d 346 (7th Cir. 1997). There we noted that “simply because evidence of a prior act is admissible under Rule 404(b) for a particular purpose does not mean that a sim- ilar but subsequent act is necessarily admissible for the same purpose.” Id. at 757. Anifowoshe attempts to turn this language into a fifth prong to the established test. The

3 In his reply brief Anifowoshe concedes that at least one of the acts at issue in this case did occur subsequent to, or at least simultaneously with, the state acts. As the timing of the acts is not decisive in this case, we do not dwell on characterizing acts as simultaneous, subsequent or prior. 6 No. 01-1761

language in Betts does not, however, support this argument. To say that evidence of a subsequent act is not nec- essarily admissible where evidence of a prior act was admissible is not to say that evidence of a subsequent act is never admissible. This is clear from our language in Betts: Rule 404(b), of course, does not restrict evidence con- cerning the defendant’s “other acts” to events which took place before the alleged crime; by its very terms, 404(b) does not distinguish between “prior” and “subse- quent” acts. The critical question is whether the evi- dence is sufficiently probative of a matter within the rule’s purview. Depending upon the factual circum- stances, the chronological relationship of the charged offense and the other act may well have some bear- ing on this inquiry, but it is not necessarily dispositive. Id. at 757 (citations and internal quotations omitted). The appropriate analysis is the well-established four-prong test. The timing of the act is only relevant inasmuch as it af- fects considerations inherent in that test. Applying the four-prong test to the admission of evidence regarding the state conviction, we find that the trial court did not abuse its discretion. Starting with the first prong, the evidence was directed at proving a matter in issue other than propensity. There are numerous and striking similarities between the crimes involved in the state charge and the crimes involved in the instant case. The perpetrator of the state theft used the same address to open a fraudulent account as did the perpetrator of the federal fraud scheme. A check from the state theft ac- count was made payable to Micheal Johnson, to whom some of the accounts in the federal scheme were regis- tered. Two checks deposited in the state account displayed an address identical to an address used to open accounts in the federal scheme. The mailbox at Mail Boxes Etc. that No. 01-1761 7

was used in the federal scheme was registered to the same name as the account involved in the state scheme. On top of all this, both schemes involved the identical meth- od of depositing stolen credit card access checks into ac- counts opened under fictitious names. Given these simi- larities the evidence was admissible to establish modus operandi for the purpose of proving identity. See United States v. Robinson, 161 F.3d 463, 467 (7th Cir. 1998) (“Evidence of modus operandi is evidence that shows a defendant’s distinctive method of operation. Such evi- dence may be properly admitted pursuant to Rule 404(b) to prove identity.”) (citations omitted). The second prong requires the other act to be similar and close enough in time that it is relevant to the matter in issue. As has been noted the similarities between the act at issue in the state conviction and the acts in this case are overwhelming. The space in time is nothing more than a few months, and Anifowoshe has made no argu- ment as to why the time lapse of a few months renders the evidence irrelevant. Indeed, it is hard to see how evi- dence of such a similar act could be rendered irrelevant by anything but an enormous lapse of time. As for the third prong, Anifowoshe has produced no argument, and nothing in the record suggests, that the evidence is insufficient to support a jury finding that Anifowoshe committed the similar act. The fourth prong requires that the probative value of the evidence not be outweighed by the danger of unfair preju- dice. The probative value of the evidence in question here is extremely high. The evidence goes toward proving iden- tity through modus operandi. Anifowoshe fails to provide any concrete arguments that the evidence created an unfair prejudice. The evidence did not include details that were shocking, repulsive or “so repetitive as to flood the court- 8 No. 01-1761

room with evidence of [the defendant’s] sordid character.” United States v. Paredes, 87 F.3d 921, 925 (7th Cir. 1996) (citations omitted). And when other acts bear a strik- ing similarity to the acts with which the defendant has been charged, this court has noted that the similarity “increases the probity of that evidence and actually de- creases the potential risk of unfair prejudice.” Id. Evidence of other acts is probative rather than unfairly prejudi- cial when the jury infers that a criminal who has commit- ted one crime in a very specific and particular manner, i.e., with a particular modus operandi, is likely to have the same identity as the person who has committed a sepa- rate crime in the same particular manner. Explaining this rule we noted in Paredes: [W]here the crimes are similar and the similarity is probative of an issue identified in Rule 404(b), the risk of the jury making the forbidden inference is slight. The jury can properly infer from the prior similar activity conclusions regarding the defendant’s involvement in the charged offense. For example, the fact that a defendant committed a prior bank robbery while wearing a clown mask indicates that the defen- dant may have been the person who recently robbed a bank while wearing a clown mask Id. Thus Anifowoshe has made no showing of unfair prej- udice. As the four prongs of our test have been met, it is clear that the trial court did not abuse its discretion in admit- ting evidence of the other act.

b. Handwriting Testimony Anifowoshe next claims that the district court improp- erly allowed Knesek, a non-expert, to testify as to similar- ities in handwriting. No. 01-1761 9

First we must determine whether Anifowoshe has waived this argument. The government argues that Anifowoshe waived his objection to the testimony comparing the Arm- strong signature with his own by urging the district court to allow Knesek to testify about the similarities and dis- similarities of the various signatures of the fictitious ac- count holders. This argument confuses waiver with open- ing the door. Defense counsel urged the court to allow Knesek to testify about the signatures of the fictitious account holders. However the issue here is whether the tes- timony comparing the fictitious signature of Armstrong with the real signature of Anifowoshe was properly al- lowed. Anifowoshe argues that the issues involved in these two questions are different and therefore the questioning on cross-examination did not open the door for the related but different questioning on redirect. The merits of this argument will be addressed, but Anifowoshe did not, simply by asking a handwriting question, waive all objections to any question on redirect that might have some relation- ship to handwriting. In fact defense counsel made his ob- jections clear throughout the trial. After the sidebar where the government first suggested questioning Knesek about the Armstrong and Anifowoshe comparison, Mr. Mondry, the defendant’s attorney, noted his objection: MR. MONDRY: Okay. Just for the record, over my ob- jection. THE COURT: Sure. Later during the questioning Mr. Mondry once again ob- jected: Q: Would you say those would have been written by the same person or appear to be? MR. MONDRY: Objection. And when the government, during closing arguments, brought up the testimony regarding the Armstrong sig- 10 No. 01-1761

nature as compared to Anifowoshe’s, the defense counsel once again objected: MR. MONDRY: Your Honor, this is over defendant’s objection. THE COURT: I understand. Thus Anifowoshe did not waive his objections to the hand- writing testimony comparing the Armstrong signature with his own. Absent a waiver or forfeiture, we review a district court’s decision to admit evidence for an abuse of discretion. United States v. Wash, 231 F.3d 366, 371 (7th Cir. 2000). The district court’s determination regarding the admissi- bility of evidence is given great deference. Id. Specifi- cally “[t]his circuit has held that a trial judge has broad discretion in determining the scope of redirect examina- tion.” United States v. Touloumis, 771 F.2d 235, 241 (7th Cir. 1985). The district court is within its discretion in allowing testimony if the objecting party has already opened the door for such testimony. “This circuit has held on numerous occasions that when a party questions a witness on a subject, even though that subject may not be strictly relevant to the case, the party cannot complain on ap- peal if the opposing party subsequently introduces evi- dence on the same subject.” Id.; see also United States v. Senffner, 280 F.3d 755, 762-63 (7th Cir. 2002). In this case defense counsel questioned Knesek about the similar appearance of numerous signatures appear- ing on the signature cards associated with the fraudu- lent bank accounts. Anifowoshe tries to avoid the opened door conclusion by arguing that the questions on cross- examination did not concern the identity of the signor but just whether the signatures depicted different names. This is not supported by the record. During side bar de- fense counsel made the following explanation: No. 01-1761 11

MR. MONDRY: What I would like to do is there’s four or five accounts that have been opened up and they have signed signatures on those cards. I am not ask- ing for his expert opinion, but I believe its in his—he can offer an opinion based on his experience in the area of comparing signature cards whether those sig- natures were made by the same person. Anifowoshe tries to counter this by pointing out the testi- mony of the witness on redirect: Q: When you said they appeared to be different, can you tell the jury what you meant? A: It’s a different name. Q: Okay and then that’s all that you were saying, cor- rect? A. Correct. While this answer does lend some weight to Anifowoshe’s argument, it was not an abuse of discretion by the trial judge to consider the actual questions posed by defense counsel, defense counsel’s stated intention in question- ing, and the actual answers initially given by the witness to be more informative than the re-characterization of the testimony given by the witness on redirect. This conclu- sion is additionally supported by the re-cross: Q: Mr. Knesek, when I showed you, and I can re-show them to you if you don’t recall, the signatures all ap- peared to be different, is that correct? A: Correct. Q: And when I say “different,” I mean that you wouldn’t be surprised IF they were written by separate people, is that correct? A: Correct. 12 No. 01-1761

We find that the district court did not abuse its discre- tion in allowing Knesek to testify as to the similarities in the signature of the fictitious Armstrong and the sig- nature of Anifowoshe because Anifowoshe opened the door to the testimony.

c. Jury Instructions Anifowoshe also challenges the “conscious avoidance” jury instruction. We must first determine whether this chal- lenge has been waived. Waiver of a right at the trial level precludes a party from seeking review on appeal. See United States v. Griffin, 84 F.3d 912, 924 (7th Cir. 1996). Waiver is deemed to have occurred when a party intentionally relinquishes or aban- dons a known right. Id. A few brief passages from the record show that such a waiver is present with regard to any right Anifowoshe may have had vis-a-vis objecting to the jury instructions. The record shows that at the beginning of the trial Anifowoshe agreed to the instructions: THE COURT: Have you had a chance to go through the government’s instructions? MR. MONDRY: Yes, your honor. I am in agreement with those. THE COURT: Okay, and do you have any others that you are going to be presenting? MR. MONDRY: At this point, not. If something comes up during the course of trial, then I will let you know, but I don’t anticipate offering any. THE COURT: Okay. So as of now at least I can just anticipate that the jury instructions that have been No. 01-1761 13

presented by the government are the ones we are go- ing to give. MR. MONDRY: Yes. This agreement was repeated at the end of the trial: THE COURT: And I should memorialize that—it’s already in the record someplace, but a fitting place to do it is right after the instructions, that the instruc- tions were given without objection by either side. MR. MONDRY: That’s correct, Your Honor, on our side. MR. BERKOWITZ: Correct. Anifowoshe’s argument that these affirmations do not rise to an intentional relinquishment, if accepted, would create an almost insurmountable standard to proving waiver. This argument is not persuasive. Anifowoshe waived any objection to the jury instructions.

III. Conclusion The district court properly admitted at trial the evi- dence of the state conviction under Rule 404(b). Regard- ing the handwriting testimony, Anifowoshe opened the door and therefore the district court did not abuse its discretion in allowing a non-expert to present testimony on the similarity of the handwriting. Finally Anifowoshe waived any objection to the “conscious avoidance” instruc- tion given to the jury. Therefore Anifowoshe’s conviction is AFFIRMED. 14 No. 01-1761

A true Copy: Teste:

________________________________ Clerk of the United States Court of Appeals for the Seventh Circuit

USCA-02-C-0072—10-9-02