United States of America v. Eugene Joseph , a/k/a Donnell Cooper, a/k/a Chloe Emers

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4232
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
E UGENE J OSEPH , a/k/a Donnell
Cooper, a/k/a Chloe Emers,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 120—Charles P. Kocoras, Chief Judge.
____________
A RGUED O CTOBER 1, 2002—DECIDED N OVEMBER 12, 2002
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Before COFFEY , R IPPLE and K ANNE , Circuit Judges.
R IPPLE , Circuit Judge. Eugene Joseph was convicted of
bank fraud, 18 U.S.C. § 1344, and sentenced to 10 months’
incarceration and 3 years’ supervised release. On appeal,
Mr. Joseph submits that the district court erred by admit-
ting “other crimes” evidence, specifically, a mail theft not
charged in the federal indictment. We affirm the judgment
of the district court.

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2 No. 01-4232
I
BACKGROUND
In early 1996, Mr. Joseph, using two different aliases,
Donnell Cooper and Chloe Emers, opened several bank
accounts at four Chicagoland banks, stole credit-card con-
venience checks, made them out to his aliases and then
deposited and withdrew funds from the fraudulent ac-
counts.
Mr. Joseph was apprehended in June 1996 after Lin-
coln National Bank employees became suspicious of the
“Cooper” account. Mr. Joseph (representing himself as
Cooper) had called Lincoln National Bank and directed
that the bank close his account and mail a check for the
account balance to his postal box in Chicago. After notify-
ing postal inspectors of the suspected fraud, the bank
sent a check, addressed to Donnell Cooper, to the spec-
ified postal box. Postal inspectors set up surveillance at
the mailbox facility and arrested Mr. Joseph when he re-
trieved the mail addressed to Donnell Cooper.
As a result, Mr. Joseph faced both state and federal
charges. Mr. Joseph first was convicted in state court of
theft of government property based upon his retrieval of
the check mailed by Lincoln National Bank to Donnell
Cooper. Two months later, as a result of related conduct,
he was also convicted in state court of theft by deception.
Later, in February 1999, a federal grand jury indicted Mr.
Joseph on one count of bank fraud. It was evidence of the
mail “theft” that became a source of dispute in the federal
bank fraud case.
Both parties agree that the evidence presented at trial
clearly demonstrated fraud; someone using the names
Cooper and Emers had deposited stolen checks and then
had withdrawn the proceeds. The principal dispute at

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No. 01-4232 3
trial centered on whether Mr. Joseph was the perpetrator.
To identify Mr. Joseph, the Government used handwrit-
ing, fingerprints, evidence of uncharged attempted fraud,
and evidence linking him with the names and addresses
on the false accounts. In a pretrial motion in limine, the
Government sought leave to introduce evidence that Mr.
Joseph stole the envelope addressed to Donnell Cooper
while carrying out the charged fraud on Lincoln Na-
tional Bank. Mr. Joseph objected to the evidence on the
grounds that its prejudicial effect far outweighed its pro-
bative value, that the mail theft was not sufficiently con-
nected to the charged bank fraud to be intricately related,
and that the mail theft was not probative of any issue
in the bank fraud case. The district court admitted evi-
dence of the mail theft under Federal Rule of Evidence
404(b). On appeal, Mr. Joseph challenges that decision.
After the district court ruled on the admissibility of the
mail theft evidence, the parties stipulated to what facts
the jury would hear, and that stipulation was read to the
jury at the close of the Government’s case. As part of its
final jury charge, the district court included a Rule 404(b)
limiting instruction regarding the narrow way in which
the mail theft evidence could be used.
II
ANALYSIS
Mr. Joseph presents one argument on appeal: that the
district court erred in admitting evidence that he stole
the Lincoln National Bank check from the postal box.
A. Waiver
At the outset, the Government suggests that we cannot
review the evidentiary ruling because Mr. Joseph waived

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4 No. 01-4232
his right to challenge the admissibility of the disputed
evidence by failing to object properly in the district court.
It is true that defense counsel did not cite Rule 404(b)
explicitly at the motion-in-limine hearing, but he did say
enough to preserve that ground for appeal. It was clear to
everyone at the hearing that the parties were arguing
about Rule 404(b). See Fed. R. Evid. 103(a)(1) (to pre-
serve evidentiary objection for appeal, party must make
a “timely objection or motion to strike . . . stating the spe-
cific ground of objection, if the specific ground was not
apparent from the context”); United States v. Whitaker,
127 F.3d 595, 601 (7th Cir. 1997). Moreover, to the extent
that the Government argues that Mr. Joseph effectively
withdrew his objection by later stipulating about the
mail theft, it is sufficient to note that the district court
had already ruled definitively on its admissibility. Mr.
Joseph was not compelled to continue objecting in order
to preserve the issue for appeal. See Fed. R. Evid. 103(a);
United States v. Gajo, 290 F.3d 922, 927 (7th Cir. 2002).
Mr. Joseph stipulated to minimize the damage of the
district court’s ruling on the motion in limine, not to en-
dorse it.
B. Rule 404(b)
Regarding the merits, we review the district court’s
reliance on Rule 404(b) only for abuse of discretion, United
States v. Conley, 291 F.3d 464, 472 (7th Cir. 2002). On
this record, we discern no such abuse. Rule 404(b) gen-
erally bars use of “bad acts” evidence unless certain fac-
tors are met, and we have fashioned a four-part test to
guide district courts in deciding whether to admit such
evidence. See United States v. Asher, 178 F.3d 486, 492
(7th Cir. 1999). The four factors are: (1) the evidence is di-
rected towards a matter in issue; (2) the prior act is sim-

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No. 01-4232 5
ilar enough and close enough in time to the charged of-
fense; (3) the jury can find from the evidence that the
defendant committed the prior act; and (4) the danger of
unfair prejudice does not substantially outweigh the pro-
bative value of the evidence. Id.
With respect to the first factor, the mail theft incident
served to establish identity in the bank fraud case because
it linked Mr. Joseph with one of the aliases used by the
perpetrator. Mr. Joseph argues that this is “not the sort
of identity permitted” by the rule, which, he suggests,
is limited to instances in which the prior bad act and
the charged offense are “unusual enough that they have
a ‘signature.’ ” We do not believe that Rule 404(b) must
be read so narrowly. One way to prove identity may be
to show that two crimes were committed in such a dis-
tinct way as to serve as a signature, but that is not what
the Government attempted to do in this case. Rather,
the disputed evidence served to link up Mr. Joseph with
his alias. The district court did not abuse its discretion
in concluding that when employed in this context, the
mail theft incident was probative of identity in a sense
embraced by Rule 404(b).
Further, the mail theft incident was not only probative
of identity, but it was also probative of intent, knowledge,
and absence of mistake. The district court cited these
purposes when ruling on the motion in limine and then
later in the jury instructions. Mr. Joseph mentions intent
on appeal but neglects to address the other purposes.
The evidence of the mail theft is probative on these
points because it shows that he knew that his name was
not Donnell Cooper, and it shows that he was not sim-
ply making a mistake when he took the check for Cooper
out of the mailbox. These facts clearly helped the Gov-
ernment prove that Mr. Joseph knowingly used the Don-
nell Cooper alias to commit the bank fraud.

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6 No. 01-4232
Regarding the second factor in the four-part test, the
test for similarity is not rigid; the two crimes need not
be identical, but only “sufficiently alike to support an
inference of criminal intent.” United States v. Montani,
204 F.3d 761, 768 (7th Cir. 2000). There is no indication
that the district court abused its discretion in finding
that test met here.
On the third factor, the evidence presented was suffi-
cient to support a jury finding that he committed the
prior conduct. The jury heard that Mr. Joseph admitted
to taking the envelope addressed to Cooper. Further, the
jury heard eyewitness testimony from Officer Demtschenko
that he saw Mr. Joseph retrieve the letter. The district
court did not abuse its discretion in finding the evi-
dence sufficient for a jury to conclude that Mr. Joseph com-
mitted the prior conduct.
Finally, on the fourth factor, the district court found
some probative value in the admission and determined
that it was not substantially outweighed by unfair prej-
udice. There is no indication that the district court abused
its discretion in balancing the probative value and prej-
udicial effect of the theft evidence.
Accordingly, the judgment of the district court is af-
firmed.
A FFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-12-02

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