                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0745n.06
                            Filed: August 24, 2005

                                              04-2044

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
WALTER JOHN BATES,                                )   EASTERN DISTRICT OF MICHIGAN
                                                  )
       Defendant-Appellee.                        )
                                                  )



       Before: NORRIS and DAUGHTREY, Circuit Judges, and JORDAN,* District Judge.

       PER CURIAM. In this interlocutory appeal, the government challenges the district court’s

order excluding certain evidence regarding the defendant’s financial condition and gambling habits

in a prosecution for bank robbery. We conclude that the district court’s determination of

inadmissibility under Federal Rule of Evidence 404(b) and its imposition of a unilateral stipulation

limiting the government’s proof were improper, and we therefore vacate the court’s order and

remand the case for further proceedings.

                         FACTUAL AND PROCEDURAL HISTORY

       Walter Bates, a detective sergeant with the Detroit Police Department, was indicted in

November 2003 for conspiracy to commit bank robbery and 13 substantive counts of bank robbery,


       *
         The Hon. R. Leon Jordan, United States District Judge for the Eastern District of Tennessee,
sitting by designation.
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United States v. Bates

along with co-defendants Albert Bates, Walter Bates’s brother, and Kevin Foster-Bey. Soon

thereafter, Foster-Bey agreed to cooperate with investigators, telling them that prior to the robberies

Walter Bates had told Foster-Bey that he had been suspended from his job for soliciting a prostitute,

that he had large bills to pay, and that he needed Foster-Bey’s help robbing banks to pay those debts.

According to Foster-Bey, Bates subsequently masterminded a string of 15 bank robberies committed

by the three defendants between July 30, 2002, and October 8, 2002. Eventually, Foster-Bey

pleaded guilty to six counts of bank robbery and is expected to testify at Bates’s trial.

       Prior to trial, the prosecutor disclosed to Bates certain evidence concerning his economic

troubles that the government intends to introduce, first, to establish that the defendant’s motive to

commit the robberies was his growing financial distress and, second, to corroborate Foster-Bey’s

testimony. That evidence shows that Bates was twice suspended without pay from his job with the

police department, first from April 9 until May 16, 2002, and then from approximately April 19,

2004, forward. He was also suspended with pay from August 27 to October 9, 2002, but without

the opportunity for overtime. His credit report showed 11 debts that had gone to collection in 2002

and 2003. The tax returns of Bates and his wife showed a decrease in total wages from $138,009

in 2001 to $110,894 in 2002 and a total taxable interest of $12 in 2002, indicating minimal funds

in savings. During this same period, some 280 checks were returned from Mrs. Bates’s checking

account, producing fees totaling $8,384.50 for insufficient funds. Between June 2001 and June

2003, Bates made 288 visits to various casinos, placing bets totaling over $100,000, and in

November 2002, the MGM Grand Casino charged off a total of $3,580 in Bates’s unpaid gambling

debts. Bates filed for Chapter 13 bankruptcy in February 2003, declaring $21,770.12 in delinquent

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United States v. Bates

property taxes and $12,116.71 in total mortgage arrearage and fees. Finally, the government

disclosed pawnshop records showing 59 transactions by Bates between 1999 and 2003, 27 of them

in 2002.

        Following this disclosure, Bates filed a motion in limine to exclude all evidence of other

crimes, wrongs, or acts pursuant to Federal Rule of Evidence 404(b), specifically:

        a. Evidence regarding the commission of other uncharged bank robberies;
        b. Evidence concerning job suspensions, with or without pay;
        c. Evidence concerning an alleged crime for which the defendant was acquitted;
        d. Evidence concerning legal gambling, “excessive” spending, and filing for bankruptcy.
        e. Other unspecified non-criminal activity of a personal nature which could cast the
               defendant in a negative light.

The government responded, contending that the evidence was admissible to prove Bates’s financial

motive for the robberies and to corroborate the testimony of Foster-Bey.

        At a hearing on the motion in limine, the district court invoked Rule 404(b) as a basis for

excluding a significant amount of the government’s evidence, including proof of Bates’s financial

condition. The government then filed a motion for reconsideration, resulting in a second hearing.

At that hearing, the court asked Bates whether he would stipulate to his dire financial condition.

When Bates agreed, the district court granted the government’s motion to reconsider in part. The

court excluded much of the evidence as inadmissible under Federal Rule of Evidence 404(b), based

on Bates’s agreement to stipulate to severe financial distress during the period set forth in the

indictment. In its later order, the district court noted that Bates had unilaterally agreed to stipulate

that:

        1.      He was in severe financial distress during the time period set forth in the indictment;



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United States v. Bates

       2.      While he had been paying his bills on time in 2001, he was not paying his bills on
               [time] during the time period set forth in the indictment; and
       3.      At the times of the robberies alleged in the indictment he had a significant increase
               in outstanding debts.

The court held that the following evidence would be excluded:

       1.      Any evidence of defendant’s specific past due bills, including bills to casinos and his
               mortgage payment;
       2.      Any evidence of dishonored checks written on defendant’s wife’s checking account;
       3.      Any evidence of the Bates’ credit card debt and failure to make credit card payments;
       4.      Any evidence of defendant’s legal gambling;
       5.      Any evidence of, or derived from, the Bates’ February 4, 2003, Chapter 13
               bankruptcy filing; and
       6.      Any evidence of the Bates’ pawn of items except the pawn of specific items
               mentioned by Foster-Bey.

The court also held that witnesses were prohibited from referring to Bates’s suspension and that,

although the government could introduce summary evidence regarding Bates’s financial condition,

it could not introduce expert financial testimony on the subject. The order did not otherwise limit

Foster-Bey’s testimony. The government subsequently filed this interlocutory appeal. The

defendant now challenges our jurisdiction to hear the appeal and argues that the district court’s

decision to exclude the evidence in question was not an abuse of discretion.

                                          DISCUSSION

       As a threshold matter, Bates argues that the court should refuse to hear this interlocutory

appeal because the United States Attorney failed to certify the appeal as required by the

jurisdictional statute, 18 U.S.C. § 3731. That statutory provision permits the government to appeal

a decision or order of a district court suppressing or excluding evidence if “the United States

attorney certifies to the district court that the appeal is not taken for purpose of delay and that the



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United States v. Bates

evidence is a substantial proof of a fact material in the proceeding.” The government’s notice of

appeal was accompanied by such a certification. However, it was signed by Assistant U.S. Attorney

Patricia Gaedeke, chief of the district’s appellate division, on the signature line provided for the U.S.

Attorney. After Bates objected to the validity of the assistant’s signature, the government

resubmitted the certification that same afternoon with the signature of U.S. Attorney Craig Morford,

who had taken office that day. Bates claims that interlocutory appeal is unavailable because the

government failed to comply with the requirements of Section 3731 when it submitted the U.S.

Attorney’s certification after it had filed the appeal.

        The certification requirement in Section 3731 is intended to ensure conscientious scrutiny

of government appeals by the responsible prosecuting official. See United States v. Smith, 263 F.3d

571, 577 (6th Cir. 2001). The purpose of the requirement is defeated when the government files a

certification after it initiates the appeal, avoiding pre-appeal scrutiny and reducing the requirement

to meaningless formality. See id. (quoting United States v. Hanks, 24 F.3d 1235, 1239 (10th Cir.

1994)). U.S. Attorney Morford’s certification, produced several days after the government filed its

appeal, did not comply with the statute and, therefore, was insufficient to cure the defect in the initial

certification automatically.

        A delayed filing of a certificate under Section 3731 does not divest an appellate court of its

jurisdiction, however. See Smith, 263 F.3d at 578. The failure to file a timely certificate is merely

an irregularity in perfecting an appeal. We have the discretion, in spite of the defect, to hear the

appeal. See FED. R. APP. P. 3(a), Smith, 263 F.3d at 578. In exercising our discretion, we may

consider a variety of factors, including when the certificate was filed, the reason for the delay,

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United States v. Bates

whether the government did in fact engage in a conscientious pre-appeal analysis, whether the

government acknowledges that the requirement should be taken seriously, any delay or prejudice

to the defendant, the importance of the legal questions, and the interests of justice. See Smith, 263

F.3d at 578. While no one factor is controlling, a circuit court is unlikely to dismiss an appeal unless

the defendant can show actual substantial prejudice. See id. (quoting Hanks, 24 F.3d at 1239).

       In the case before the court, the government has offered a reasonable explanation for the

delay, and Bates has offered no evidence of actual prejudice. The government contends that

Assistant U.S. Attorney Gaedeke had authority to sign the certificate as a representative of the U.S.

Attorney. Although this circuit has never recognized a U.S. Attorney’s ability to delegate his or her

duty to certify appeals under Section 3731, others have. See e.g., United States v. Wallace, 213 F.3d

1216, 1218 (9th Cir. 2000); United States v. Smith, 532 F.2d 158, 160 (10th Cir. 1976); United

States v. Wolk, 466 F.2d 1143, 1146 n.2 (8th Cir. 1972). Nevertheless, we need not adopt such a rule

at this time, because, in the exercise of our discretion, we are satisfied that the government acted

diligently in having the U.S. Attorney review and certify the appeal the same day that the issue was

raised and, significantly, within the time limit set forth for filing the appeal. See FED. R. APP. P.

4(b). In addition, Bates has produced no evidence that he was prejudiced by the government’s dely.

We wish to emphasize the importance of conscientious review of government appeals by the U.S.

Attorney prior to their filing. See Smith, 263 F.3d at 581. However, in light of the government’s

good-faith efforts to comply with the statute, we will address the merits of this appeal.

       In that regard, the government contends that the trial court erred by excluding evidence of

Bates’s dire financial condition under Federal Rule of Evidence 404(b) and by imposing a unilateral

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United States v. Bates

stipulation that limited the scope and depth of the prosecution’s proof. We review a district court’s

decisions regarding the admissibility of evidence for abuse of discretion. See Trepel v. Roadway

Express, Inc., 194 F.3d 708, 716 (6th Cir. 1999).

       Under existing precedent, the government is entitled to prove its case free from a defendant’s

offer to stipulate the prosecution’s evidence away. See Old Chief v. United States, 519 U.S. 172,

189-193 (1997). This rule rests on the proposition that a robust narrative is more effective than a

dry explanation and that a noticeable gap in the prosecution’s story will leave the jury wondering

what is being kept from it. See id.

       In this instance, we conclude that the government’s proof is highly relevant both to Bates’s

financial motive and to Foster-Bey’s familiarity with Bates, especially in view of the defendant’s

professional position as a police officer and, presumably, his otherwise good standing in the

community. A person in such circumstances would normally be unlikely to mastermind more than

a dozen bank robberies, putting a heavier-than-usual burden on the government to produce a motive

for what might otherwise appear to be wholly uncharacteristic behavior. Legitimate evidence of

motive, where that issue is pertinent, is recognized as admissible under the plain language of Rule

404(b), even where it consists of “other crimes, wrongs, or acts,” and evidence of income patterns

is recognized as relevant to demonstrate a motive of financial gain. See United States v. Logan, 250

F.3d 350, 369 (6th Cir. 2001). Moreover, although maintaining overdrawn bank accounts, filing

petitions in bankruptcy, gambling in jurisdictions where it is not illegal, patronizing pawn shops, and

the like are “acts,” they are not intrinsically “bad acts” of the kind contemplated by Rule 404.

Evidence of the defendant’s financial woes and his efforts to ameliorate them through gambling may

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United States v. Bates

be seen as prejudicial to the defendant, but in the circumstances of this case, it is not unfairly

prejudicial. The evidence also demonstrates that Foster-Bey was familiar with discrete details of

Bates’s financial condition and thus may corroborate Foster-Bey’s testimony. See United States v.

Copeland, 51 F.3d 611, 615 (6th Cir. 1995) (finding evidence admissible to corroborate testimony

when the matter corroborated was significant).

                                        CONCLUSION

       In sum, we conclude that the district court abused its discretion in excluding the evidence

outlined in its order of August 23, 2004, as inadmissible under Rule 404(b). We therefore VACATE

that order and REMAND the case to the district court for trial.




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