The opinion of the court was delivered by: Judge Sara Lioi
MEMORANUM OPINION & ORDER
Before the Court is a notice of intent to introduce evidence pursuant to Rule 404(b) of the Federal Rules of Evidence filed by plaintiff United States of America ("plaintiff" or the "Government"). (Doc. 38.) Defendant Patrick Johnson ("defendant" or "Johnson") has filed a brief in opposition to the Government's use of 404(b) evidence and/or a motion in limine seeking the exclusion of this evidence at trial. (Doc. 43.) The Government has filed a reply. (Doc. 44.) This matter is ripe for disposition. For the reasons set forth below, the Court will permit the Government to present the proposed evidence and DENIES defendant's motion in limine.
Defendant is charged with robbing a Dollar Bank located in Lakewood, Ohio on March 25, 2008. During the robbery, the bank robber, acting alone and wearing a blue baseball cap, shoved a bank customer out of the way, jumped onto the teller counter, grabbed money from the teller drawer, shoved the cash into a blue plastic grocery bag he was carrying, and fled through the back door of the bank. The bank robber did not brandish weapon, however, after the robbery, police found a knife on the floor area near the teller window.
The bank's surveillance cameras captured the actions of the robbery suspect; however, the Government has stated that identification of the suspect using the video or eyewitness testimony is not possible because the suspect covered his face with a mask and the aforementioned baseball cap. The Government contends that, nonetheless, the video and witness testimony will establish that the bank robber's physical characteristics are consistent to that of defendant. Additionally, DNA obtained from a blue baseball cap resembling the one worn by the suspect, which police recovered from a parking lot near the bank, matches defendant's DNA profile maintained in the Government's CODIS database.
The Government anticipates that at trial, the defense will argue that defendant did not commit the robbery in question, and that the DNA evidence alone is not sufficient to establish his guilt beyond a reasonable doubt. Thus, the Government filed a notice of intent to submit evidence of six other robberies that defendant committed in 1994, which it asserts are relevant to the issue of identity.*fn1 The Government seeks to present the following facts related to those six prior robberies:
(1) On May 18, 1994, defendant robbed a Dollar Bank in Strongsville, Ohio. During the robbery, defendant wore a yellow baseball cap, jumped over the teller counter, stole cash from the open teller's drawer, and put the stolen money into a blue plastic grocery bag that he was carrying;
(2) On May 27, 1994, defendant robbed the same Dollar Bank in Strongsville, Ohio. During the robbery, defendant wore a yellow baseball hat, jumped over the teller counter, asked the tellers to open their drawers, stole money from a teller's drawer, and put the money into a blue plastic bag he was carrying;
(3) On June 14, 1994, defendant robbed a First Federal of Lakewood branch in Westlake, Ohio. During the robbery, defendant wore a red baseball cap, jumped over the teller counter, took money from the teller drawers, and put the stolen money into a white plastic bag he was carrying. Witnesses also observed a brown handle of a knife protruding from defendant's back pocket;
(4) On June 27, 1994, defendant robbed a Charter One Bank in Rocky River, Ohio. During the robbery, defendant wore a blue baseball hat with a white logo, jumped over a teller window, pushed a teller out of the way, took money from the teller's drawer, and put the money into a "Finast" grocery bag;
(5) On July 6, 1994, defendant robbed a Bank One in Eastlake, Ohio. During the robbery, defendant wore a baseball cap, jumped over a teller window, pushed the teller out of the way, attempted to open several teller drawers, took money from a drawer he was able to open, and put the money into a plastic bag he was carrying; and
(6) On July 19, 1994, defendant robbed a Home Federal Savings and Loan in Lakewood, Ohio. During the robbery, defendant wore a New York Giants baseball cap, vaulted over the teller counter, shoved a teller out of the way, took money from two teller drawers, and put the money into a blue plastic grocery bag he was carrying.
The Government contends this evidence will establish that defendant's modus operandi and identifiable acts in his past robberies are distinctive and directly probative of defendant's identity in this case, and that it was not just a coincidence that defendant's DNA was found on the baseball hat recovered at the scene. The Government also argues that jumping the teller counter is a unique method for bank robberies, has only occurred in 7% of all bank robberies in the past five years, and is sufficient by itself to constitute a distinctive modus operandi.
Defendant argues in opposition that the Government cannot carry its burden of proving his prior robbery convictions are similar to the degree necessary to constitute a "signature" modus operandi and should be excluded. Additionally, defendant contends that the robberies are not reasonably "near in time" to the instant offense to be admissible. Finally, defendant argues that the probative value of the past robberies is substantially outweighed by the risk of unfair prejudice to defendant and if admitted, ...