                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          SEP 27 2000
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 99-6409
                                                   (D.C. No. CR-99-62-A)
 JAMES A. CROWE,                                        (W.D. Okla.)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before SEYMOUR, KELLY, and HENRY, Circuit Judges.


       Defendant-Appellant James A. Crowe appeals from his conviction of bank

fraud, 18 U.S.C. § 1344(1). He was sentenced to 33 months imprisonment, three

years supervised release, and ordered to pay a $100 special assessment and

$19,418.87 in restitution. On appeal, he contends that the district court erred in

allowing the government to introduce evidence of an uncharged fraud that he

perpetrated against an individual. Our jurisdiction arises under 28 U.S.C. § 1291

and we affirm.



       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       The conduct underlying Mr. Crowe’s conviction for bank fraud consisted

of his opening an account at Citizens Bank in Edmond, Oklahoma, and

depositing two checks into the account knowing that those checks were drawn on

a closed account that had no funds. After making these deposits, Mr. Crowe

wrote checks from the Citizens Bank account for his personal use, causing

extensive loss to the bank.

       At trial, the government introduced evidence of Mr. Crowe’s dealings with

James Prentice, an Oklahoma City mobile home dealer, whom Mr. Crowe bilked

out of money by making misrepresentations and using checks drawn on the same

closed account that he later used to defraud Citizens Bank. Mr. Crowe made

proper objections to the evidence at trial, and contends on appeal that the unfair

prejudice associated with the evidence outweighed any probative value it might

have had, violating Federal Rules of Evidence 403 and 404(b) and rendering his

trial unfair.

       We review a district court’s decision to admit evidence under Rule 404(b)

for an abuse of discretion.   See United States v. Roberts , 185 F.3d 1125, 1141

(10th Cir. 1999), cert. denied , 120 S.Ct. 1960 (2000). After careful review, we

conclude that the evidence was introduced for the proper purpose of establishing

Mr. Crowe’s knowledge and intent with respect to the bank fraud charge, and

therefore the district court did not abuse its discretion in admitting the evidence.


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                                  Background

      In the spring of 1998, Mr. Crowe entered an agreement with Gerald Cox to

open and run “Sissy’s Family Restaurant,” to be financed by Mr. Cox. In

connection with opening the restaurant, Mr. Cox opened a commercial checking

account at The Bank, N.A. in McAlester, Oklahoma. Both Mr. Cox and Mr.

Crowe were signatories on the account. One week after the opening of the

restaurant, Mr. Cox was informed by a bank employee that Mr. Crowe had

written a number of questionable checks and that there was a problem with the

account. Mr. Cox then removed Mr. Crowe’s name from the restaurant account,

informed Mr. Crowe’s wife that Mr. Crowe’s name had been taken off the

account, took the restaurant checkbook back from Ms. Crowe, and closed the

restaurant.

      On Friday July 24, 1998, Mr. Crowe met with James Prentice, an

Oklahoma City mobile home dealer. He told Mr. Prentice that he was interested

in a mobile home because he was planning on opening up a restaurant in the area.

He then gave Mr. Prentice a business card from the now-defunct Sissy’s Family

Restaurant. After several hours of discussion, Mr. Crowe chose a mobile home,

signed a contract for it, and gave Mr. Prentice a $30,000 down payment by

writing a check on the closed Sissy’s Family Restaurant account. After signing

the contract, Mr. Crowe asked Mr. Prentice if he could borrow some money to


                                       -3-
cover his costs while he was staying in Oklahoma City. Mr. Prentice gave him

$180 in cash, and Mr. Crowe wrote a check to Mr. Prentice for that amount

drawn on the closed Sissy’s restaurant account. The next day, Mr. Crowe told

Mr. Prentice that he was going to go to an auction that evening to buy some

restaurant equipment and asked Mr. Prentice to loan him some more money. Mr.

Prentice withdrew $500 from his bank and gave it to Mr. Crowe, who told Mr.

Prentice that they would “settle up later.” But Mr. Prentice never saw Mr. Crowe

again, and was never repaid the $680. Mr. Crowe also never took delivery of the

mobile home for which he had written a $30,000 check drawn on the closed

account.



                                     Discussion

      On appeal, Mr. Crowe contends that the district court improperly allowed

the government to introduce exhibits (the $180 check, the mobile home sales

contract, and the Sissy’s Restaurant business card) and testimony related to the

fraud perpetrated against Mr. Prentice. Federal Rule of Evidence 404(b)

prohibits introduction of “evidence of other crimes, wrongs, or acts . . . to prove

the character of a person in order to show action in conformity therewith.”

However, such evidence may be admissible to prove motive, intent, knowledge,

plan, and lack of mistake.   See Fed. R. Evid. 404(b).


                                         -4-
      In determining whether the district court properly admitted 404(b)

evidence, we must ascertain whether: (1) the evidence was offered for a proper

purpose; (2) the evidence was relevant; (3) the trial court made a Rule 403

determination that the probative value of the evidence was not substantially

outweighed by the potential for unfair prejudice; and (4) the trial court, if

requested, instructed the jury that the evidence was to be considered solely for

the proper purpose for which it was admitted.   See United States v. Huddleston ,

485 U.S. 681, 691 (1988);   Roberts , 185 F.3d at 1141.

      We disagree with Mr. Crowe’s claims that the challenged evidence was

offered for an improper purpose, irrelevant, or unfairly prejudicial. The

challenged evidence was offered to show Mr. Crowe’s intent and his knowledge

of the status of the restaurant account, both proper purposes for 404(b) evidence.

2 R. at 187. The evidence was relevant as well. In both the mobile home

incident and the charged bank fraud incident, Mr. Crowe wrote checks on the

closed Sissy’s restaurant account. In both cases, the bad checks were passed at

times when banking systems were closed. (Mr. Crowe gave Mr. Prentice the

$30,000 and $180 checks late Friday afternoon, and he deposited a $16,000

check at Citizens Bank on Sunday afternoon). In both cases Mr. Crowe got cash

as a result of having passed the bad checks, and in both cases he used the

fraudulent story about opening a restaurant to increase his credibility.


                                          -5-
Additionally, the mobile home incident is relevant to and probative of Mr.

Crowe’s knowledge about the lack of funds in the restaurant account. The fact

that he wrote a $30,000 check on the account for a down payment on a mobile

home for which he never intended to take delivery tends to indicate his

knowledge that the account was unfunded when he deposited the fraudulent

checks with Citizens Bank just two months later. The trial court did not abuse its

discretion in finding that the evidence was not unfairly prejudicial because of the

timing of the mobile home incident in relation to the bank fraud, and because the

same account was used in both cases.      See id. at 188. Finally, the court gave a

limiting instruction to the jury concerning the purposes for which the evidence

could properly be used, thus fulfilling the fourth prong of the   Huddleston test.

Id. at 214-215. The trial court did not abuse its discretion in allowing the

challenged evidence, and its judgment is therefore AFFIRMED.


                                          Entered for the Court


                                          Paul J. Kelly, Jr.
                                          Circuit Judge




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