820 F2d 1220 United States v. Cherry

820 F.2d 1220
Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellee,
Albert Lee CHERRY, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
Keith Tyrone CROSBY, Defendant-Appellant.

Nos. 86-5586(L), 86-5600.

United States Court of Appeals, Fourth Circuit.

Argued March 6, 1987.
Decided June 5, 1987.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Before WINTER, Chief Judge, PHILLIPS, Circuit Judge, and YOUNG, United States District Judge for the District of Maryland, sitting by designation.

James Joseph Nolan; Morris Lee Kaplan, for appellants.

Thomas F. O'Neill, III, Assistant United States Attorney (Breckinridge L. Willcox, United States Attorney; Herbert Better, Assistant United States Attorney, on brief), for appellee.


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Defendants Cherry and Crosby were convicted by a jury for their roles as both principals and aiders and abettors of robbery and larceny from a bank and assault during a robbery. Crosby was also convicted of using and carrying a firearm during a crime of violence. They appeal, asserting various errors in their trial. We perceive none, and we affirm.


We see no reversible error in the admission of evidence of a prior bank robbery not charged in the indictment. It had occurred approximately six weeks before the robbery which was the subject of the charges here. In this case there was an issue of identification and the similarities between the prior robbery and the instant one were sufficient to invoke the "signature" exception to the general rule that proof of other crimes is usually inadmissible. See Fed.R.Evid. 404(b); cf. United States v. Foutz, 540 F.2d 733 (4 Cir.1976). We note, however, that the question is a close one, and that admission of evidence of the prior crime in this case reaches the outer limit of Rule 404(b).


Similarly, evidence of defendants' drug use and lack of employment were admissible to prove motive, and we cannot say that the district court abused its discretion in ruling that the probative value of such evidence outweighed its possible prejudicial effect.


We find lacking in merit defendants' contention that their counsel were unduly restricted in cross-examination of government witnesses. In the case of one of these witnesses, defense counsel cross-examined him thoroughly about untruths he told to the FBI. The motive for his untruths was irrelevant. The other government witness did not testify so that questions designed to attack his credibility were likewise irrelevant. The attempted cross-examination of a government agent to reveal the identity of an informant on whose statement a search warrant issued was properly excluded since the validity of the warrant had already been established.


There was in the case evidence of drug use by two government witnesses who had also been accomplices to the crime. We do not think, however, that defendants were entitled to a special addict instruction because the time-frame of the witnesses' addiction was uncertain, the fact of their drug use was thoroughly brought to the jury's attention, and the jury was told to receive accomplice testimony with caution and weigh it with great care.


Finally, we think that a witness was competent to identify Crosby in a surveillance photograph even though the witness was not in the bank when the picture was taken; the witness testified that he had seen Crosby earlier in the day and knew what he was wearing. We think also that the government gave adequate discovery of the substance of this witness' testimony.