United States v. Stevens

935 F.2d 1380 (3d Cir. 1991)

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Nature of the Case

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Facts

Two white Air Force police officers, Jane Smith, and Tony McCormack were strolling back to their dormitories at Fort Dix. A black male, wearing a wool cap and a tan nylon jogging suit paused for a moment about ten feet away from the officers and then asked them who they were. The man approached the officers and drew a small, silver handgun from his pants. Pointing the gun at McCormack's chest, the man demanded McCormack's wallet. The man quickly frisked him. He then asked Smith for her money, but she had none. After patting down Smith's pockets, the man ordered her to drop her pants; totally helpless, Smith complied. As he pulled down his pants, the man leveled his gun at McCormack's head and demanded that Smith kneel before him. He told Smith that unless she performed fellatio on him, he would 'blow [McCormack's] brains out.' Smith complied. Three or four minutes later, the man sat down on the bench and directed McCormack to sit beside him. Placing the gun on McCormack's left temple, he insisted that Smith complete the act. She did. The man told the victims to run away, and they quickly called the military police. Smith reported that semen evidence should be gathered. A military police investigator told the victims to look at a wanted board on the wall. Of the 8 renditions on the board, McCormack almost immediately focused upon a photograph of D and identified him. Smith agreed that the photograph resembled their attacker, but thought that it made him appear a bit heavier. When Amos returned, Smith and McCormack informed her that they had identified a photograph of their assailant. Smith was taken into an examination room where a doctor administered a rape crisis kit. Afterward, Smith was shown an array of six photographs from which she identified D as her attacker. McCormack was shown the same spread and identified D. Five days later, Smith and McCormack individually viewed a lineup of seven individuals, and each identified D as their assailant. Eventually, D was convicted and appealed. At trial, D sought to introduce under Fed. R. Evid. 404(b) the testimony of Tyrone Mitchell, the victim of a similar crime at Fort Dix. Three days after Smith and McCormack were assaulted, Mitchell, a black man, was robbed at gunpoint by another black man who resembled Smith's and McCormack's attacker. Mitchell stated that D was not his assailant. D reasons that Mitchell's failure to identify him tends to establish that he did not assault Smith and McCormack. D reasons that in view of the many parallels between the two crimes, one person very likely committed both. Since D was exonerated by Mitchell, a black man whose identification (or lack thereof) is arguably more reliable than that of the two white victims, D was not that person. An additional, and even more striking, parallel made the similarities between the two crimes more difficult to dismiss as mere coincidence. Mitchell was robbed of various items, including his military identification card. This card later was used to cash two stolen checks at the Fort Meade exchange in Maryland. McCormack's stolen money order, like Mitchell's identification, also ended up near Fort Meade: it was cashed by someone other than D at the Odenton Pharmacy located across the street from Fort Meade.