COFFEY, Circuit Judge.
Defendant-Appellant Nicholas Tyrone Moore was convicted of two counts of robbery of financial institutions in violation of 18 U.S.C. § 2113(d), and two counts of carrying a firearm during crimes of violence in violation of 18 U.S.C. § 924(c). Moore was sentenced to 86 months on each of the robberies to be served concurrently
Moore argues that the district court abused its discretion in: admitting evidence of other crimes under Federal Rule of Evidence 404(b) to illustrate Moore's modus operandi; allowing a witness to explain his opinion on the similarity between the charged offenses and other crimes, as well as discuss a criminal's propensity to commit the same crime; denying his motion to suppress the introduction of photo array evidence which Moore contends was unduly suggestive; and, denying his severance motion to have separate trials for the charges relating to the two robberies. Finally, Moore argues that there was insufficient evidence to convict him of committing the robbery of the Sangamo Credit Union. We affirm.
I. FACTUAL BACKGROUND
At approximately 10:00 a.m. on the morning of September 14, 1992, Moore entered Security Federal Savings and Loan ("Security"), located in Springfield, Illinois, and politely asked employees for directions to a nearby department store. After receiving the directions, Moore departed. About an hour later, at 11:00 a.m., two men wearing white Halloween-type hockey goalie masks and dark clothing burst into Security and demanded that the two tellers "give us all your money." The robbers ran behind the tellers' counter and with an assault of profane language ordered the tellers to open their cash drawers. After the employees opened the drawers, the robbers began stuffing cash into their pants pockets, as opposed to using a bag. Once the drawers had been emptied one of the robbers demanded that the vault be opened. After the vault was opened the other robber removed money from the cash box located inside the vault. The robber inside the vault instructed his partner to "blow [the] fucking brains out" of a teller who had previously stated that she did not have a key to the cash box in the vault. As a result the robber held his gun within several inches from the teller's head, but did not fire while the teller vehemently pleaded for her life. After emptying the cash box the two robbers ejected a videotape from the VCR recording the robbery and fled out the back door and ran down an alley into a residential neighborhood.
Later that day, the Springfield police located a hockey mask similar to the ones used in the robbery in a garbage can in an alley half a block from Security. Testing of this mask by the police and a Federal Bureau of Investigation ("FBI") Fingerprint Specialist revealed one of Moore's fingerprints on the mask. Three bank employees identified Moore in a photo array prior to trial and in court as the individual who entered Security the morning of the robbery and requested directions. The two employees who witnessed the robbery described the robbers as
On October 20, 1992, some five weeks after the Security robbery, at approximately 9:45 a.m., Moore entered Sangamo Credit Union ("Sangamo"), also located in Springfield, Illinois, and once again politely asked a teller for directions to a nearby shopping mall. After Patricia Henton, a teller, gave him directions he departed. Approximately 45 minutes later, at 10:30 a.m., two individuals stormed into the credit union office wearing gorilla masks, dark clothing and gloves, while carrying handguns. Upon entry they announced, replete with numerous obscenities, that they were robbing the facility. One of the robbers proceeded behind the teller counter and removed money from the teller drawers and stuffed it into his pants pockets. The other robber directed an employee to open the safe, the employee complied but the safe was found to contain no money. The robbers exited Sangamo Credit Union, one using the front door and the other the rear. The two rendezvoused at the rear of the building and ran down an alley into a residential neighborhood.
After the robbery, Patricia Henton identified Moore from both a photo array and in court, as the person who requested directions from her prior to the robbery. She also informed the FBI agent investigating this robbery, Special Agent John McAtee, "that although the robbers wore masks, one of the robbers had a very disgusting and filthy mouth" and that she thought that the photograph of Moore that she identified "was identical" to that robber. Henton and a loan officer both stated that the person who asked for directions was black, around six feet tall, and had one gold front tooth. Moore has a gold capped front tooth.
Employees of both Security and Sangamo described their businesses as small facilities, with no drive-up windows, and only three and two teller windows respectively. Sangamo did not have a security camera. Both financial institutions were located in, or close to, a residential neighborhood. During each of the robberies money was dropped to the floor while the robbers stuffed money into their pants and on neither occasion did either of the robbers make any effort to pick up the money.
A. Other Crime Evidence as Proof of Modus Operandi and Federal Rule of Evidence 404(b)
Initially, Moore argues that the district court abused its discretion by allowing the government to admit evidence that Moore committed and was convicted of a separate bank robbery as evidence of Moore's identity and modus operandi.
The district court allowed the admission of the other crime evidence that Moore had been convicted of committing the robbery of Wagner Credit Union ("Wagner"),
The evidence admitted from the Wagner robbery demonstrated that on July 16, 1992, at approximately 8:30 a.m., Moore entered Wagner and asked for a job application. In response, an employee went to the copy machine to make a copy of the application form. After waiting a few minutes, Moore departed before receiving the job application. About half an hour later, shortly after 9:00 a.m., Moore and a partner charged into Wagner wearing dark clothes and hood-type masks, each carrying a handgun. One of the robbers jumped onto the teller counter and reached over into one of the teller drawers. The robber removed the money from the drawer and placed it into his pants pockets. Moore and his accomplice then rushed out through the front door.
Wagner had a video camera that recorded Moore asking for directions as well as his committing the robbery with an accomplice. At trial, Moore did not object to the admission of the Wagner videotape. The employees were able to identify the robbers as being black because of the exposed skin on their arms. The size and location of Wagner was similar to that of Security and Sangamo Credit Union in that they were all small banking facilities with only two or three tellers and were located close to residential areas.
"We note that a trial court's decision to admit `other acts' evidence is reversible only upon a showing that the court committed a clear abuse of discretion." Briscoe, 896 F.2d at 1499 (citing United States v. Zapata, 871 F.2d 616, 621 (7th Cir.1989)); see Smith, 103 F.3d at 602. This court has combined the requirements of Rule 404(b) and Rule 403 of the Federal Rules of Evidence to create a four prong test used in determining the appropriateness of using other crimes evidence:
Smith, 103 F.3d at 603; see United States v. Mounts, 35 F.3d 1208, 1214 (7th Cir.1994); Briscoe, 896 F.2d at 1499; Zapata, 871 F.2d at 620. Moore complains that the second and fourth prong of this test were not met, while the government asserts that there were sufficient similarities between the crimes to conclude that the same or very similar modus operandi existed.
We require that modus operandi evidence bear "'a singular strong resemblance
Numerous commonalities between these robberies makes them "clearly distinctive from the thousands of other bank robberies committed each year." Smith, 103 F.3d at 603. The significant similarities between the robberies are that in all three cases: 1) two men identified as black and about six feet tall committed the robberies; 2) the crimes were committed in the morning; 3) the robbers emptied the cash drawers with little or no assistance from bank employees, instead of ordering the tellers to do it for them; 4) the money was stuffed into the robbers' pants pockets as opposed to utilizing some form of bag; 5) the robbers used hoods or masks to conceal their face; 6) the robbers wore dark clothing; 7) the targeted financial institutions were all small with no security guard or drive-up window, and were located near residential areas; 8) the robberies occurred within a few months of each other; and 9) most importantly, the robbers used a unique method of "casing" the institution prior to the robbery, which entailed Moore entering the facility approximately 30 to 60 minutes prior to the robbery and very politely asking for directions or a job application. Thus, the similarities between the Wagner armed robbery other crime evidence and the Security and Sangamo armed robberies are certainly sufficiently idiosyncratic to pass the second prong of the admissibility test.
Moore's second contention is that the fourth prong of the test is not met because the admission of the Wagner robbery was unfairly prejudicial. Although all relevant evidence against a party is inherently prejudicial, the probative value of the other crime evidence establishing a similar modus operandi in this case was not substantially outweighed by the danger of unfair prejudice. Moreover, the risk of unfair prejudice was lessened by the three specific instances of the court rendering limiting jury instructions stating that the evidence of the Wagner robbery was admitted solely for the purpose of determining the defendant's identity.
B. Cross-Examination and Propensity
Moore next argues that the district court erred in permitting the government's cross-examination of Agent McAtee, with respect to matters that related to a robber's propensity to commit additional robberies if they commit one and are not immediately apprehended by law enforcement officers. Moore asserts that this testimony was not only inadmissible but was also unfairly prejudicial. The government argues that there was no error in permitting the witness to explain the basis of his opinion because the Defendant opened the door to this line of questioning and the trial judge overruled Moore's objections for that reason. (Tr. 330 ("I think this is within the opened door".)) We review evidentiary rulings for abuse of discretion. United States v. Godinez, 110 F.3d 448, 455 (7th Cir.1997); United States v. Runnels, 93 F.3d 390, 393 (7th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1095, 137 L.Ed.2d 228 (1997).
After the government rested its case, Moore's counsel called Agent McAtee as a witness.
Moore's attorney then attempted to discredit the agent's opinion by addressing the dissimilarities that existed between the robberies. Following that line of questioning, Moore's attorney asked how the agent analyzed crimes to determine that a certain modus operandi existed, both generally, and specifically for this case. Agent McAtee was asked by Moore's attorney how many different robberies of financial institutions were analyzed before reaching his determination that the Wagner, Security, and Sangamo robberies exhibited the same modus operandi. The agent responded that based upon his knowledge, experience, and investigation of this case, that, in total, there were eight to ten robberies, including Wagner, Security, and Sangamo, that exhibited the same modus operandi.
The government's cross-examination that followed Moore's attorney's questioning included interrogatories that related to a robber's propensity to commit additional similar crimes based on his commission of a single crime of that nature. The following exchange took place:
(Tr. 329-32 (emphasis added).)
After this prejudicial propensity testimony was elicited from the defendant's witness through the cross-examination by the prosecution, and following the lodging of a continuing objection by Moore, the witness went into a lengthy narrative that discussed robberies in addition to those of Wagner, Security, and Sangamo. Agent McAtee explained that beginning in the early Spring of 1992, the central Illinois area began to experience a series of armed robberies of small financial institutions that had numerous similarities. He further explained that after the arrest of Moore, along with his alleged accomplice for the Wagner robbery, the series of that type or robberies ceased completely.
The government acknowledged that its use of the word propensity was ill-chosen and requested that the court give the jury a limiting instruction with respect to the testimony. Moore's counsel did not take any position on the wording of this limiting instruction, except that no limiting instruction would suffice to allow Moore a fair trial. The court accepted the government's version of a proper limiting instruction and gave it to the jury immediately, while Agent McAtee was still on the stand. The limiting instruction stated,
(Tr. 351.) The court, at the request of the government, also gave another specific limiting instruction on propensity and robberies of additional financial institutions (other than Wagner, Security, and Sangamo) prior to closing argument and thereafter went so far as to individually poll the jurors as to whether they could follow this instruction. Each juror responded affirmatively. Furthermore, the written jury instructions given to the jurors for deliberation included a limiting instruction that was almost identical to the others. The district court, at the request of the government, also had the testimony regarding propensity and robberies of additional financial institutions stricken from the record. The court also instructed the jurors to disregard the evidence on propensity and additional robberies in their entireties. Moore argued that no limiting instruction could cure the errors and allow him to receive a fair trial.
Moore next argues that the district court erred in permitting Agent McAtee to give propensity testimony over his objections. In response, the government relies on United States v. Teague, 445 F.2d 114, 118 (7th Cir.1971), which held that when a defendant opens the door to a subject he cannot complain about testimony which would not have been presented if the subject had not been raised by him on direct examination. See also United States v. Wynn, 845 F.2d 1439, 1443-44 (7th Cir.1988) (no plain error where postal inspector allowed to clarify his opinion when defendant opened the door to that line of questioning). The government claims that they were merely attempting to allow the witness to clarify and explain the basis of his opinion. Federal Rule of Evidence 404(b) clearly forbids the use of evidence to establish propensity in stating that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith."
Although the admission of this evidence was improper, reversal is not required so long as we are of the opinion that the error was harmless. The harmless error standard is established in Federal Rule of Criminal Procedure 52(a) which states that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." See United States v. Lloyd, 71 F.3d 1256, 1269 (7th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 2511, 135 L.Ed.2d 200 (1996). "`A harmful error results only if the error has a substantial and injurious effect or influence on the jury's verdict.'" Id. (quoting United States v. Schoenborn, 4 F.3d 1424, 1429 (7th Cir. 1993)). "A defendant is only entitled to a new trial if there is a reasonable possibility that the evidence had a prejudicial effect upon the jury's verdict." United States v. Berry, 92 F.3d 597, 600 (7th Cir.1996).
Although we presume that the jury understood and followed the court's limiting instructions, Briggs v. Marshall, 93 F.3d 355, 360 (7th Cir.1996), such a presumption is not even necessary here as the district court went so far as to take the precaution of polling the jury. Based on a reading of the record in its totality, and having reviewed the three specific limiting instructions given by the court, along with the striking of testimony and polling of jurors, we are of the opinion that the admission of the improper propensity evidence did not prejudice Moore, and thus any error was at best harmless and, therefore, does not require a reversal and a new trial.
Following the government's cross-examination of Agent McAtee involving testimony pertaining to propensity, Moore made a discovery request for the extrinsic material that the witness relied on in reaching his opinions. Moore stated that without that information he would be unable to conduct a meaningful re-examination of the witness.
C. Admissibility of Photo Array
Moore next contends that the district court abused its discretion in denying his motion to suppress evidence of his identification from a photo array. The FBI photo array shown to witnesses consisted of six African-American males. However, the photograph of Moore was the only one that showed a man with a notched eyebrow or that had lines shaved into it. At trial it became apparent Moore's shaved eyebrow was observed by witnesses on the date of the Security robbery when he asked for directions. For this reason, Moore objected to the introduction of the photo array as being unduly suggestive and moved for its suppression. The district court overruled Moore's objection and found that the array was not unduly suggestive.
Our standard of review of a district court's decision to allow identification testimony arising from the photo array is for clear error. United States v. Funches, 84 F.3d 249, 253 (7th Cir.1996). Although the government states that the proper standard of review is for clear error, in a footnote they also suggest that Moore waived his objection to the suggestiveness of the photo array, which would mean that the proper standard is for plain error. Funches, 84 F.3d at 254 (if a party fails to make an argument before or at trial, then review is only for plain error). When the government offered the photo array into evidence, Moore stated that it was subject to his cross. The district court responded that it would receive it subject to cross. Before this witness stepped down from the stand, Moore called for a sidebar discussion. In his reply brief, Moore states that he "believes that the topic of the photo array may have been discussed at that point with direction from the District Judge to make the record later when the jury was gone." Shortly after Moore's counsel completed its cross-examination of the witness he motioned for suppression of the photo array
In determining whether the trial court committed clear error in allowing the identification testimony from the photo array we engage in a two-step analysis. United States v. Hall, 109 F.3d 1227, 1237 (7th Cir. 1997). The first question is whether the identification procedure used was unduly suggestive. Id. If it is found unduly suggestive, the identification can still be admissible so long as the testimony was reliable, given the totality of the circumstances. Id. at 1237-38. In assessing reliability we look to five factors: "(1) the opportunity of the witness to view the event and the actor; (2) the degree of the witness's attention; (3) the accuracy of the witness's description; (4) the witness's level of certainty; and finally, (5) the time elapsed between the crime and the identification." United States v. Fryer, 974 F.2d 813, 821 (7th Cir.1992). According to the Supreme Court, "the primary evil to be avoided is `a very substantial likelihood of irreparable misidentification.'" Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)); see Funches, 84 F.3d at 253.
Moore fails to pass even the first hurdle of the two-step analysis. Witnesses pertaining to the robbery of Security were shown the challenged photo array six months after the robbery. Only one of the four witnesses that identified Moore relative to the Security robbery had apparently mentioned prior to being shown the photo array that the person seeking directions had a "distinctive eyebrow." Additionally, only two of the four witnesses who identified Moore in the photo array, with respect to the person asking for directions prior to the Security robbery, stated that he had a notched eyebrow with lines shave into it and that it was the most distinctive feature they noticed when they saw him. A third Security employee who observed Moore ask for directions also identified him in the photo array. However, this witness was neither asked, nor did she state on her own, that she recalled Moore having a distinctive or shaved eyebrow. A fourth witness who observed Moore crouching in the alley while she was walking her dog additionally identified him from the array, but made no mention of his eyebrow. Further, Patricia Henton, the bank employee who provided Moore with directions the morning of the Sangamo robbery, identified Moore from the same photo array and specifically testified that his eyebrow was not notched when she observed him.
The district court correctly noted that all six of the individuals in the photo array are African-Americans, males, young, with some hair, and have "at least some similar features." Additionally, each of the individuals was clean shaven, all of the pictures were black and white glossy photos of the same size, and each photo showed the individual from the shoulders up. We agree with the district court's finding that the photo array identification was not unduly suggestive.
Further, although we need not analyze the reliability of the identification, the record clearly indicates that when Moore requested directions from the financial institution employees, they observed him for several minutes, paid attention to his appearance, gave detailed descriptions of him following the robbery, and viewed the photo array six months after the robbery took place. In fact, one of the witnesses stated that Moore's inquiry struck her as odd because, as she explained, Moore seemed to be breaking the age old rule that men don't ask for directions and, further, that there was a gas station right down the street which would have been a more typical choice than entering a bank to obtain directions.
As the Wisconsin Supreme Court stated:
Hensley v. Carey, 818 F.2d 646, 650 (7th Cir.1987) (quoting Wright v. State, 46 Wis.2d 75, 175 N.W.2d 646, 652 (1970)). We agree that, under the totality of the circumstances, the identification from the photo array was also reliable. Accordingly, the district court did not commit error in allowing the admission of the photo array identification.
On appeal, Moore asserts that the photo identification tainted the in-court identification as well, because while on the stand each witness identified him from the photo array prior to being asked to identify him in court. Unlike counsel's objection to the admission of the photo array, he failed to object to the in-court identification of Moore by witnesses at trial. It was not until Moore's brief on appeal that his counsel argued that the in-court identifications were tainted by the photo array. As Moore neither made this argument prior to, nor at trial, we review this issue for plain error only. Funches, 84 F.3d at 254. In order to establish plain error, Moore must demonstrate that the admission of the in-court identification was error and that reversal is required to prevent a miscarriage of justice. Id. We need not consider this argument as we have previously determined that the photo array was not unduly suggestive and was reliable. However, it is clear that no error or miscarriage of justice occurred here, so the plain error standard has not been met and reversal is not required on this ground.
D. Motion for Severance
Moore next contends that the district court abused its discretion when it denied his motion for a severance for the two counts relating to the Sangamo robbery from the two counts relating to the Security robbery. Moore asserts that the evidence identifying him as one of the robbers of Sangamo was "incredibly lacking." Moore states that trying the Sangamo robbery with the Security robbery, along with the propensity testimony of Agent McAtee and the Wagner modus operandi evidence, resulted in a situation where he did not receive fair and independent consideration by the jury with respect to the Sangamo robbery counts. In conclusion, Moore states that the jury allowed evidence to spillover and contaminate their consideration of the Sangamo charges resulting in actual prejudice to him, which requires that his convictions be reversed and remanded for separate trials.
The district court denied the severance motion pursuant to Federal Rule of Criminal Procedure 14,
United States v. Pulido, 69 F.3d 192, 207 (7th Cir.1995) (internal citations and quotations omitted). "Because the balancing of the cost of conducting separate trials and the possible prejudice inherent in a single trial is best conducted by the trial court, the defendant
Id. (quoting United States v. Buljubasic, 808 F.2d 1260, 1263 (7th Cir.1987) (citations omitted)).
Moore speculates that separate trials may have improved his chances for acquittal, it is just as likely that they would also have "yielded two convictions, resulting in wasted time, effort, and judicial resources." Pulido, 69 F.3d at 208. The trial in this case was short, clear, and concise. The evidence was not complicated, and it was presented to the jury chronologically over two days. The Wagner modus operandi evidence would still be admissible in a separate trial for the Sangamo robbery, and it is highly likely that much, if not all, of the Security robbery evidence would also be admissible to show a signature method of committing robberies. Additionally, there was more than sufficient evidence to convict Moore of committing the Sangamo robbery. See infra Section E. The Supreme Court has held that "Rule 14 leaves the determination of risk of prejudice and any remedy that may be necessary to the sound discretion of the district courts." Zafiro v. United States, 506 U.S. 534, 541, 113 S.Ct. 933, 939, 122 L.Ed.2d 317 (1993). We conclude that the district court did not abuse its discretion in denying the severance motion because Moore did not suffer actual prejudice.
Moore also points out that although the district court stated that the jury would be instructed to consider each count separately, it failed to actually give such an instruction.
Although the district court should have given the specific jury instruction pertaining to separate consideration of individual counts, we are convinced that after reading the jury instructions and the verdict form, and after considering them in their totality, there is no doubt that the jury was aware that it should give separate consideration to
E. Sufficiency of the Evidence of the Sangamo Robbery
Finally, Moore argues that there was insufficient evidence to convict him of charges relating to the robbery of Sangamo. In bringing a sufficiency of the evidence challenge, Moore "faces a `nearly insurmountable hurdle.'" United States v. Hickok, 77 F.3d 992, 1002 (7th Cir.) (quoting United States v. Teague, 956 F.2d 1427, 1433 (7th Cir.1992)), cert. denied, ___ U.S. ___, 116 S.Ct. 1701, 134 L.Ed.2d 800 (1996). When reviewing a sufficiency of the evidence challenge "we consider the evidence in the light most favorable to the Government, defer to the credibility determination of the jury, and overturn a verdict only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." Id. (citations and internal quotations omitted). In determining if there was sufficient evidence we resolve all conflicts in the evidence in favor of the prevailing party. Frazell v. Flanigan, 102 F.3d 877, 882 (7th Cir.1996); Emmel v. Coca-Cola Bottling Co. of Chicago, 95 F.3d 627, 629 (7th Cir.1996).
Moore's sufficiency argument is based on his assertion that there was no physical evidence presented of his committing the Sangamo robbery, and that the only eyewitness testimony presented at trial pertained to Moore's presence in the bank prior to the robbery to ask for directions. He asserts that the jury's determination that he was one of the unidentified Sangamo robbers is nothing short of pure speculation. Moore further contends that the modus operandi evidence was erroneously admitted, and that the jury found him guilty of this charge because of the evidence presented pertaining to the Wagner and Security robberies. However, this argument is unpersuasive as we have previously concluded that the district court did not abuse its discretion in admitting the Wagner robbery modus operandi evidence or in denying Moore's motion to sever the Security and Sangamo robberies.
The record contains more than ample evidence in support of the jury's verdict. One Sangamo employee previously identified Moore as one of the robbers,
Moore is in effect asking this court to "reassess and re-weigh the evidence introduced at his trial." Id. at 1006. We decline this invitation because "[i]t is not the task of this appellate court to reconsider the evidence or assess the credibility of the witnesses." United States v. Mojica, 984 F.2d 1426, 1435 (7th Cir.1993); see Stewart v. Duckworth, 93 F.3d 262, 268 (7th Cir.1996) (rejecting sufficiency of the evidence claim based on credibility of identification testimony); Griffin, 84 F.3d at 927 ("It is for the jury — not the court of appeals — to judge the credibility of witnesses, and attacks on witness credibility are insufficient to sustain a challenge to the sufficiency of the evidence."). We will not second guess a jury on credibility issues. "We refuse to second-guess the jury's credibility determinations...." Curry, 79 F.3d at 1496; see Hickok, 77 F.3d at 1006.
In addition to the testimony of witnesses, the jury was also presented with convincing circumstantial evidence supporting the identification of Moore as one of the robbers.
Id. (alteration in original) (quotations and citations omitted).
Moore used the same modus operandi as that used in the Wagner and Security robberies to commit the Sangamo armed robbery. "This circumstantial evidence, when considered in conjunction with the direct evidence, provided the basis for a reasonable fact finder to conclude beyond a reasonable doubt that [Moore] was," one of the individuals who committed the Sangamo robbery. United States v. Balzano, 916 F.2d 1273, 1288 (7th Cir.1990). Therefore, as Moore's sufficiency argument relies on the weight the jury gave to the eyewitnesses's identifications, we find that there was sufficient evidence to convict him of committing the Sangamo robbery, particularly when considered in conjunction with the modus operandi evidence that bolsters the determination that Moore committed the Sangamo robbery.
We have concluded that Moore is not entitled to a new or separate trial on any of the grounds raised. The decision of the district court is AFFIRMED.
In the first limiting instruction, while the agent was still on the stand, the court stated in part, "I specifically instruct you that you are not to consider the fact that the Defendant committed the Wagner Credit Union robbery as evidence of the Defendant's propensity to commit the robberies charged in this case, but can only be considered on the question of the Defendant's identity." The limiting instruction that the jury was polled on stated, "I instruct you that the evidence of the robbery of the Wagner Credit Union has been admitted for a limited purpose. You may consider this evidence only on the question of the identity of the Defendant. This evidence is to be considered by you only for this limited purpose." Each juror responded that it would follow this limiting instruction. Lastly, the final jury instructions included the following limiting instruction: "You have heard evidence that the Defendant has been convicted of the armed robbery of the Wagner Credit Union. You may consider this evidence only on the question of the identity of the Defendant. This evidence is to be considered by you only for this limited purpose."
(Tr. of Mar. 11, 1996, at 23; R. 50.)
(Tr. of Mar. 11, 1996, at 26-27 (emphasis added); R. 50.) Additionally, the jury verdict form given to the jurors provided for a separate determination on each and every count. (R. 49.)