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

No. 04-2793
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

ANTONIO OWENS,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 02 CR 1138-4—Ronald A. Guzman, Judge.
                          ____________
  ARGUED APRIL 12, 2005—DECIDED SEPTEMBER 21, 2005
                     ____________


 Before MANION, ROVNER, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. Defendant Antonio Owens
appeals his conviction and sentence for bank robbery in
violation of 18 U.S.C. § 2113(a) and 2, arguing that the
district court abused its discretion by admitting evidence
which suggested that Owens had robbed the same bank
seven and a half years earlier. Because this prior bad act
evidence is neither admissible pursuant to Federal Rule
of Evidence 404(b) nor intricately related to the charged
crime, we vacate the defendant’s conviction and remand his
case for a new trial.
2                                                No. 04-2793

                    I. BACKGROUND
  On November 22, 2002, Princeten Davis was apprehended
by police while fleeing the scene of a bank robbery. Once
under arrest, Davis, after changing his story several times,
eventually admitted to the robbery. He also confessed to his
involvement in another bank robbery committed weeks
before, on October 19, 2002. He insisted, however, that this
earlier robbery was the idea of his cousin—defendant
Antonio Owens—and that Owens made him do it. Owens
was arrested on September 4, 2003, and brought to trial
before a jury in March 2004 for bank robbery in violation of
18 U.S.C. §§ 2113(a) and 2.
  At trial, Davis testified against Owens in exchange for
a reduced prison sentence for his involvement in both the
October and November 2002 robberies. Davis testified to
the following: sometime before October 19, 2002, Owens
hatched a plan to rob a bank with Davis. On the morning of
October 19, 2002, after the pair spent the night at Davis’s
mother’s home, Owens woke Davis up and asked him if he
was ready to rob a bank. After Davis affirmatively re-
sponded, Owens drove Davis to a Banco Popular branch in
Melrose Park, Illinois. When they arrived, Owens wrote a
note, which he gave to Davis with instructions to hand it to
a bank teller once inside. The note stated, “I have a gun.
Please don’t make me kill you. Put all the money on the
counter. No one will get hurt.” Owens then gave Davis a
walkie talkie, keeping one for himself, and said he would
warn Davis should the police arrive. Though Davis went so
far as to enter the bank and to get in line to see a teller, he
grew scared, feeling out of place as the only African Ameri-
can person in the room, and left.
  Davis further testified that once he returned to the
car, Owens told him that he would drive him to another
bank where he would feel more comfortable. According to
Davis, Owens then proceeded to drive him to a Harris Bank
No. 04-2793                                                 3

branch located on North Avenue on the west side of Chi-
cago. Owens suggested that his cousin would feel more
comfortable at this bank because it serviced more African
American patrons than their prior target, and because
Owens had robbed that bank before. So comforted, Davis
got out of the car and entered the bank with the handwrit-
ten note and walkie talkie. He handed a teller the note; she
handed him money that she had been counting. Cash in
hand, Davis left the bank, rushed to meet Owens in the
alley behind the bank, and got in the car which Owens
drove back to the home of Davis’s mother. In his haste,
Davis left the note behind on the teller’s counter.
  Several of the government’s witnesses—namely, Davis’s
mother (Nadine) and cousin (Cortez)—testified that Owens
had admitted to each of them separately that he and
Davis had robbed the bank. Diamond Magnum, one of
Davis’s friends, testified that Owens spent his portion of the
robbery proceeds on her, and that he admitted to robbing
banks in the past.
  Forensic evidence revealed that the demand note con-
tained one fingerprint belonging to Owens. In addition, a
handwriting expert testified that a comparison of a hand-
writing sample from Owens and the demand note revealed
that Owens wrote the note. The district court, at the govern-
ment’s request, admitted evidence tending to suggest that
Owens had robbed the same Harris Bank with the aid of a
demand note in 1995. Though Owens was never charged
with that prior robbery, the teller who received the demand
note—Myrna Castillo—identified Owens as the robber in a
lineup she viewed in 1995. She also identified Owens at
trial through government exhibit 6—a photograph of the
lineup she had attended in 1995. This photo shows Owens
and five other men seated, barefoot, and wearing large
signs with numbers around their necks and what appears
to be identical prison jumpsuits.
4                                               No. 04-2793

  In his defense, Owens presented an alibi witness—
Owens’s former neighbor, Brian Wrobel. Wrobel testified
that Owens was cleaning one of his cars at the time of the
2002 robbery, and could not have been involved in the
crime. As for the demand note with his fingerprints and
handwriting, Owens claims that Davis took the note
paper from him, and that he had no knowledge that his
paper would be used to commit a crime.
  The jury found Owens guilty. The district court thereafter
sentenced him to 145 months in prison, and Owens now
appeals his conviction and sentence.


                      II. ANALYSIS
  The crux of Owens’s appeal centers around the admission
of past bad act evidence—that evidence tending to suggest
that he had committed a prior, uncharged bank robbery at
the same Harris Bank branch in 1995. This evidence was
introduced through the testimony of Davis, Castillo (the
teller who received the demand note during that prior
robbery), and Sergeant Robert Fitzgerald (the police officer
who organized the lineup at which Castillo identified
Owens as the 1995 robber).


A. Standard of Review
  We review a district court’s evidentiary decisions for
an abuse of discretion. United States v. Rangel, 350 F.3d
648, 650-51 (7th Cir. 2003). Furthermore, when reviewing
evidentiary errors, we will only reverse and order a new
trial provided that the improper admission was not harm-
less, which is to say “only if the error had a substantial
influence over the jury, and the result reached was inconsis-
tent with substantial justice.” United States v. Hernandez,
330 F.3d 964, 969 (7th Cir. 2003).
No. 04-2793                                                 5

B. Admission of Evidence of Prior Uncharged Bank
   Robbery Was Improper
  Prior bad act evidence may be admitted either pursuant
to Federal Rule of Evidence 404(b), see United States v.
Wilson, 31 F.3d 510, 514-15 (7th Cir. 1994), or where it is
intricately related to the current charged crime or necessary
to complete the story of the crime on trial, see United States
v. Ramirez, 45 F.3d 1096, 1102 (7th Cir. 1995); United
States v. Hargrove, 929 F.2d 316, 320 (7th Cir. 1991). Here,
the district court found the evidence suggesting Owens’s
involvement in the 1995 Harris Bank robbery admissible
under both standards. However, Owens argues that this
past bad act evidence fits neither, and that the admission
of such evidence constituted an abuse of discretion.


  1. Evidence of the Prior Robbery Is Not Admissi-
     ble Under Federal Rule of Evidence 404(b)
  Under Federal Rule of Evidence 404(b), “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith,” but may be admissible for “other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”
However, before admitting evidence under Rule 404(b),
    the court must determine whether (1) the evidence
    is directed toward establishing a matter 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 in time to be
    relevant to the matter in issue; (3) the evidence is
    sufficient to support a jury finding that the defen-
    dant committed the similar act; and (4) the proba-
    tive value of the evidence is not substantially
    outweighed by the danger of unfair prejudice.
6                                              No. 04-2793

Wilson, 31 F.3d at 514-15 (citing cases).
  With regard to this first prong, the government argues
that the evidence of the 1995 robbery was properly admit-
ted toward establishing three alternative matters in issue
other than propensity: (1) defendant’s participation in,
and control of, the charged offense; (2) the absence of
mistake or accident in finding himself involved in the
charged offense; and (3) his knowledge of the particular
bank that he chose to rob.
   We address first the “participation in and control of”
argument, in which the government contends that the
evidence of the prior robbery was properly admitted to show
that Owens was not an “innocent pawn” in the commission
of the charged offense. In United States v. Lightfoot, 224
F.3d 586, 588 (7th Cir. 2000), we held that evidence of a
defendant’s past violent abuse of a female roommate was
admissible to refute his defense that she was the real drug
dealer in the charged offense, and that he was at best an
innocent pawn in her nefarious undertakings. Id. Citing
Lightfoot, the government argues that the past act evidence
here was properly admitted to rebut Owens’s defense that
Davis was the real robber who implicated Owens merely to
reduce his own sentence; to prove that Owens was not
merely a pawn whose note paper was used to create a
demand note, but rather the brains behind the operation
who picked the bank that Davis ultimately robbed. This dog
just doesn’t hunt. Owens never claimed that he was a pawn
in the robbery; rather, he claims that he was not involved
at all. To construct an innocent pawn defense, Owens would
first have to concede his presence in the car with Davis on
the day of the robbery, consistent with Davis’s account, and
then insist that he was no more than an unwitting “wheel-
man.” Only then would the evidence of the 1995 robbery be
putatively admissible to establish his participation and
control of the instant offense. But that is not the defense
Owens chose to mount. His is an alibi defense, rendering
No. 04-2793                                                 7

the government’s participation and control argument a non-
starter.
   In the alternative, the government argues that the past
bad act evidence was properly admitted to prove absence of
accident or mistake. Prior bad act evidence may be admit-
ted “as proof of an element of a crime, such as intent, if the
act demonstrates how the defendant’s behavior
was purposeful rather than accidental.” United States v.
Brown, 34 F.3d 569, 573 (7th Cir. 1994); see also United
States v. Best, 250 F.3d 1084, 1089 (7th Cir. 2001). How-
ever, 18 U.S.C. § 2113(a) is a general intent crime, and thus
specific intent need not be proven to establish the instant
offense. See Carter v. United States, 530 U.S. 255, 270
(2000) (holding that 18 U.S.C. § 2113(a) is not a specific
intent crime); United States v. Fazzini, 871 F.2d 635 (7th
Cir. 1989) (rejecting defendant’s diminished capacity
defense to 18 U.S.C. § 2113 charges because “armed bank
robbery is a general intent crime . . . and diminished
capacity is a defense only to specific intent crimes.”)
(emphasis in original). And where specific intent is not an
essential element—as in the case of general intent
crimes—evidence of past bad acts shall not be admitted to
prove such intent unless the government has reason to
believe that the defendant will place it in issue. United
States v. Shackleford, 738 F.2d 776, 781 (7th Cir. 1984)
(“[W]hen intent is only a formal issue, so that proof of the
proscribed act gives rise to an inference of intent, then
unless the government has reason to believe that the
defense will raise intent as an issue, evidence of other acts
directed toward this issue should not be used in the govern-
ment’s case-in-chief and should not be admitted until the
defendant raises the issue.”), modified on other grounds by
Huddleston v. United States, 485 U.S. 681, 685 (1988).
Thus, the absence of accident or mistake is not a matter in
issue here unless Owens made it one.
  Here, the government argues that Owens did place
8                                                No. 04-2793

accident in issue by arguing that his fingerprint landed
on the demand note only by coincidence—that the note
paper belonged to the defendant but was taken by Davis for
commission of the robbery without his knowledge. Toward
that end, the government contends that the evidence of the
1995 robbery, which suggests that Owens robbed the same
bank by sliding a similar note to a teller in similar fashion,
tends to disprove Owens’s claim of accidental association
with the note here. We cannot accept this argument. That
Owens allegedly committed a robbery at the same bank
seven and a half years earlier does absolutely nothing to
prove or disprove how Owens’s fingerprint ended up on a
note used to rob the bank victimized here. This prior bad
act that he may or may not have committed does not make
him any more or less likely to have intentionally touched
and penned the demand note used in the charged offense.
If the issue of absence of accident or mistake was placed in
issue at all, this evidence of the 1995 robbery has done
nothing to address it. Rather, the only value of such
evidence is to show the defendant’s propensity to commit
crime, and that value, if it ever held currency, went bank-
rupt long ago.
  In yet another alternative, the government argues that
evidence of the 1995 robbery may be admitted to demon-
strate Owens’s knowledge of the Harris Bank branch that
was robbed, and to explain why he chose to target that
branch. It argues Owens’s alleged prior robbery demon-
strates that he knew the bank well enough to decide that it
was a better target for Davis—i.e., proving how he
knew that the branch had more African-American custom-
ers and that Davis would feel more comfortable there.
However, knowledge is not in any way at issue in this
case—either as an element of the crime or in rebuttal to
a defense. Furthermore, even if knowledge was in issue, the
evidence of the 1995 robbery does not demonstrate
any special knowledge of the bank used to commit the
No. 04-2793                                                  9

present crime. While both the 1995 and the 2002 rob-
beries were committed in substantially the same way, in
that both involved the use of a demand note, the same
may be said of most all bank robberies. Thus, even with
an unwarranted assumption of relevance getting it past
prong one of our Rule 404(b) inquiry, this evidence
could not overcome prong four: its probative value is
quite slight, while its danger of inspiring unfair prejudice is
great.
  As the evidence of the 1995 robbery is not directed toward
establishing any matter in issue other than the defendant’s
propensity to commit the crime charged, it is not admissible
under Rule 404(b).


  2. Evidence of the Prior Robbery Is Not Intricately
     Related To Charged Offense
  As an alternative basis for admission of past bad act
evidence, the government argues that the 1995 robbery is
“intricately related” to the charged crime. “Evidence of
other acts which are ‘intricately related to the facts of the
case’ is admissible without reference to Rule 404(b),
provided that it passes the balancing test under Rule 403.”
United States v. Hargrove, 929 F.2d 316, 320 (7th Cir.
1991). Such intricately related evidence includes informa-
tion necessary to provide the jury with a complete story
of the crime on trial, Ramirez, 45 F.3d at 1102; United
States v. Roberts, 933 F.2d 517, 520 (7th Cir. 1991), to avoid
a conceptual or chronological void, United States v. Lahey,
55 F.3d 1289, 1295-96 (7th Cir. 1995); United States v.
Hattaway, 740 F.2d 1419, 1424-25 (7th Cir. 1984), or to
explain the basis of relevant relationships between co-
conspirators, United States v. Zarnes, 33 F.3d 1454, 1469
(7th Cir. 1994).
  Here, the government contends that the 1995 robbery
is inextricably intertwined with Davis’s narrative of the
10                                               No. 04-2793

2002 robbery—in particular, the moments leading up to the
robbery—and is part and parcel of testimony crucial to
establishing that Owens, contrary to his alibi defense,
robbed the bank as charged. The government further argues
that the evidence lends crucial credibility to Davis—its star
witness—by serving as one of several explicit details
recalled by Davis from a pre-robbery conversation that
Owens, by virtue of his alibi defense, claims never occurred.
And finally, the government contends that the evidence of
the prior robbery completes the story of the crime on trial
by explaining how Owens chose the bank, and how he knew
particular facts about the bank that he would use to
reassure Davis before the crime.
  Each of the government’s arguments succeed in highlight-
ing an intricately related element to Davis’s story—but that
element is not Owens’s alleged involvement in the 1995
robbery. Rather, it is his familiarity with the targeted
branch, and to a lesser extent the basis for that familiarity,
that is inextricably intertwined with the narrative the
government wants to tell. Toward that end, all the govern-
ment needed was testimony from Davis to the effect that
Owens had expressed familiarity with the robbed branch
based on the (ambiguous) fact that he had been there
before. Had the government shown such self-restraint, it
would have just as effectively completed its narrative of the
crime, provided sufficient detail of the pre-robbery conver-
sation so as to bolster Davis’s credibility, and supplied the
basis for Owens’s alleged decision to target that particular
bank. Instead, the government got greedy, invoked the
specter of the 1995 robbery, thereby tainting the record,
inviting the risk of unfair prejudice, and placing its case in
jeopardy. Because it is Owens’s familiarity with the bank,
and not his alleged involvement in the 1995 robbery, that
is intricately related to the charged offense, we find the
evidence of the 1995 robbery to be inadmissible under
this standard as well. And, devoid of any basis for admitting
No. 04-2793                                               11

this past bad act evidence, we find that the district court
abused its discretion in doing so.


  3. Admission of the Past Bad Act Evidence Was
     Not Harmless Error
   Furthermore, we cannot say that the district court’s error
in admitting this prior bad act evidence was harmless. “The
test for harmless error is whether, in the mind of the
average juror, the prosecution’s case would have been
‘significantly less persuasive’ had the improper evidence
been excluded.” United States v. Eskridge, 164 F.3d 1042,
1044 (7th Cir. 1998). Without the improperly admitted
evidence, the government’s case against Owens consisted of
physical evidence tying him to the demand note, and a
cadre of biased witnesses. While we do not discount the
persuasive weight of the physical evidence, the patent bias
found in each government witness—save those testifying as
to the 1995 robbery—give us great pause. First there is
Davis, the government’s star witness, who testified against
Owens in return for a reduced sentence on two different
crimes; and then there are several of Davis’s closely related
family members and friends. Confronted with this far from
disinterested lineup, the average juror would likely look
elsewhere for evidence to corroborate their accounts. In
such an event, the evidence of Owens’s alleged prior bad act
may very well have taken on a central role in the jury’s
deliberations.
  Indeed, the very danger of over-reliance on the past bad
act evidence was made all the more likely by the district
court’s failure to issue a limiting instruction regarding the
proper use of that evidence. Here, both parties and the
court agreed prior to the instruction of the jury that such a
limiting instruction should be given. In fact, the govern-
ment drafted the instruction itself. Yet for some reason, the
12                                                    No. 04-2793

court never provided one. This oversight makes the evil
spawned by the improper admission of the past bad act
evidence all the more glaring.1
  The egregiousness of the error is exacerbated further
by the admission of the 1995 lineup photo as part of the
prior bad act evidence. The photo shows Owens and five
other men seated, barefoot, and wearing large signs with
numbers around their necks and what appears to be
identical prison jumpsuits. The picture clearly portrays
Owens as a prisoner in police custody. Not only was this
highly inflammatory piece of inadmissible prior bad act
evidence admitted into evidence, but it also was published
to the jury, and even allowed to accompany the jurors into
deliberations. In the jury room throughout, while jurors
contemplated Owens’s fate, the lineup photo festered as
a constant reminder that Owens had at least once
before been a prisoner, undermining the fairness of the fact-
finding process in its potential to taint the jury’s judgment.


1
   Because we find that the prior bad act evidence should never
have been admitted in the first place, we do not reach the issue of
whether the district court should have issued a limiting instruc-
tion regarding such evidence, save for a few words in passing.
True enough, the responsibility for pointing out this omission by
the court falls squarely on the shoulders of defense counsel, see,
e.g., United States v. McKinney, 954 F.2d 471, 479 (7th Cir. 1992)
(holding that a defendant who fails to request a limiting instruc-
tion at trial cannot complain on appeal that such an instruction
was not given), and in that regard, Owens’s attorney failed his
client. But it is a surprise to find the government, which, as
drafter of the omitted limiting instruction, was clearly aware of
the past bad act evidence’s prejudicial potential, willing to
jeopardize its own case by not itself ensuring that such an
instruction be given. While we cannot say that the government
shares the obligation to point out the oversight, it is fair to posit
that its failure to do so now and in the future is done at its own
peril.
No. 04-2793                                               13

See Estelle v. Williams, 425 U.S. 501, 503-05 (1976) (finding
that a “constant reminder of the accused’s condition implicit
in such distinctive, identifiable attire [prison clothes] may
affect a juror’s judgment,” and thereby unacceptably
“undermine the fairness of the fact-finding process”).
  With such potent, and improper, evidence removed from
the jury’s consideration, the government’s case against
Owens—consisting only of Davis, Davis’s family and
friends, and a sole fingerprint—would be significantly less
persuasive in the mind of an average juror. For that reason,
we find that the district court’s abuse of discretion in
admitting that prior bad act evidence was not harmless
error.


                   III. CONCLUSION
  For the foregoing reasons, we VACATE the defendant’s
conviction and REMAND his case for a new trial.




  MANION, Circuit Judge, concurring. I concur in the result
reached by the court, but on narrower grounds. I too have
serious concerns about the lineup photograph introduced
into evidence and published to the jury, and I would
remand the matter to the district court based exclusively on
the prejudicial impact of the photograph.
  The government introduced the lineup photograph during
testimony about the 1995 robbery. Specifically, a police
officer testified that a witness in 1995 identified Owens as
the robber using the lineup photograph. However, that
witness already testified at trial that she had identified
14                                               No. 04-2793

Owens in 1995. The very limited probative value of this
photograph was far outweighed by its prejudicial impact on
the jury. The photograph, which the jury possessed while
deliberating, showed six black men seated side-by-side
holding identification numbers. All were dressed in obvious
prison garb, were barefooted, and wore a beret. Owens sat
at attention, staring wide-eyed at the camera. The other
five were relaxed, looking bored and disinterested. Clearly
Owens was the only one in the lineup of prisoners who had
any concern with the purpose of the lineup. As the Supreme
Court recognized in Estelle v. Williams, 425 U.S. 501, 504-
05 (1976), “the constant reminder of the accused’s condition
in such distinctive identifiable attire may affect a juror’s
judgment.” The lineup photograph simply could not satisfy
the strictures of Fed.R.Evid. 403, which provides that
“[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice . . .” The prejudice from the lineup
photograph was too great.
  However, I cannot conclude that the introduction of
all evidence of the 1995 robbery constituted an abuse
of discretion. While prior bad acts evidence is generally
prohibited, it can be introduced when it is intricately
related to the charged crime. See United States v. Hargrove,
929 F.2d 316, 320 (7th Cir. 1990). To qualify as intricately
related, “the question is whether the evidence is properly
admitted to provide the jury with a ‘complete story of the
crime [on] trial,’ whether its absence would create a ‘chrono-
logical or conceptual void’ in the story of the crime, or
whether it is ‘so blended or connected’ that it incidentally
involves, explains the circumstances surrounding, or tends
to prove any element of, the charged crime.” United States
v. Ramirez, 45 F.3d 1096, 1102 (7th Cir. 1995) (internal
citations omitted). Of course, even intricately related
evidence must still pass muster under Fed. R. Evid. 403.
  The evidence of the 1995 robbery is intricately related
No. 04-2793                                              15

to the present crime because it tells the rest of the
story. Owens claims he was washing someone’s car at the
time of the robbery. Thus the robbery was all Princeten
Davis’s doing. Davis, however, testified that Owens picked
a Banco Popular branch as the initial target, but after
entering, Davis discovered he was the only black person in
the bank. Because he thought he was conspicuous, he lost
his nerve and left. So what was it about the Harris Bank
that enabled Davis to regain his nerve and complete the
robbery? The court suggests that all the government needed
was testimony from Davis to the effect that “Owens had
expressed familiarity with the robbed branch based on the
(ambiguous) fact that he had been there before.” But
because the government “got greedy [and] invoked the
specter of the 1995 robbery,” it tainted the record and
invited unfair prejudice. But without reference to the
robbery, Davis’s reason for his change of heart is not
complete. To some extent, Owens had some familiarity with
the Banco Popular branch. Familiarity wasn’t enough.
Davis regained his nerve to rob the Harris Bank when
Owens observed that the Harris Bank had more black
patrons and Owens had previously robbed that bank. In
addition to explaining why Davis regained his nerve, it also
enhanced his credibility when testifying that Owens was
intricately involved in the 2002 Harris robbery. When the
government introduced evidence that Owens had in fact
previously robbed the Harris Bank branch, it helped
authenticate Davis’s claim that Owens told him about that
robbery.
  Further, this evidence satisfies the requirements of
Fed. R. Evid. 403. The high probative value of the evidence
helps explain why they chose the Harris Bank, how Davis
regained his nerve, and whether he was telling the truth.
This evidence is not substantially outweighed by a danger
of unfair prejudice. See Hargrove, 929 F.2d at 320 (“Any
prejudice from this testimony resulted solely from its
16                                           No. 04-2793

tendency to link Hargrove to the [crime] and was not
unfair.”).
  In short, in my view the district court properly decided
that the evidence of the 1995 robbery by Owens was
necessary to fill a void in the story of what happened in
2002. But I agree with the court that the flagrant lineup
photograph magnified Owens’ criminal past and his propen-
sity to repeat the crime.

A true Copy:
      Teste:

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




                  USCA-02-C-0072—9-21-05
