Richard Robinson was convicted of armed bank robbery and of use of a firearm in relation to the commission of the armed bank robbery. The District Court sentenced Robinson to 35 years in prison and ordered him to pay $5,134 in restitution. On appeal, Robinson raises two issues: (1) whether the trial court erred in admitting evidence pertaining to another later bank robbery to which Robinson pleaded guilty and (2) whether the evidence was insufficient to convict him of the charges alleged in the indictment. We reject the arguments presented by Robinson and affirm his conviction.
*465 I. History
A federal grand jury returned a four-count indictment against Richard Robinson on charges stemming from two armed bank robberies. Counts one and two of the indictment alleged that on April 8, 1997, Robinson robbed the Americana Bank in Anderson, Indiana, and that he used a firearm during the commission of this offense. Counts three and four of this same indictment alleged that ten days later, on April 18, 1997, Robinson committed another armed robbery with a firearm, this time robbing Harrington Bank in Fishers, Indiana. The cities of Anderson and Fishers are separated by approximately twenty-five miles. Robinson pleaded guilty to the later armed robbery of Harrington Bank and went to trial on the charges stemming from the earlier Americana Bank robbery. Because the government offered evidence of the April 18 Fishers robbery at Robinson’s trial, it is necessary to review the facts of both robberies when considering the issues before us.
On the afternoon of Tuesday, April 8,1997, Robinson set out from his home in his wife’s blue Chevrolet Cavalier to commit the first of the two bank robberies. Upon arriving at Americana Bank in Anderson at approximately 3:40 p.m., he donned an orange ski mask with a single oval opening and proceeded into the bank brandishing his mother’s handgun in one hand and carrying a large and distinctive “Louis Vuitton”-brand duffle bag in the other. In addition to the orange ski mask, Robinson wore a pair of brown work coveralls. Once inside the bank, Robinson sprinted to the teller counter and vaulted over the counter as he demanded money. He personally gathered money from the two teller stations after placing the handgun on an adding machine, vaulted back over the counter, and exited the bank. Robinson then made his getaway in the Cavalier while being observed by an off-duty police officer.
Robinson robbed Harrington Bank in Fishers ten days later, on April 18, at approximately 12:00 p.m., in a manner mirroring the heist that occurred in Anderson. Robinson drove to the bank in his wife’s Cavalier and pulled on the orange ski mask prior to entering the bank. After leaping over the teller counter, he placed his handgun down and personally removed money from the teller drawers. Robinson once again departed in the Cavalier.
While Robinson’s technique remained the same, the results did not, and his career as a bank robber was brought to a hasty conclusion. Harrington Bank’s Trust Officer observed Robinson fleeing the bank, and she telephoned the license plate number and a description of the Cavalier to the police. Officers Tony Craig and Danny Cook of the Noblesville Police Department observed a vehicle fitting the description of Robinson’s Cavalier in the Noblesville area, a short distance away from where the robbery had just occurred. The officers pulled behind the vehicle and confirmed the Cavalier’s license plate matched the license plate of the vehicle observed driving away from Harrington Bank. After Robinson drove into a parking lot and opened the door of the Cavalier, Craig and Cook got out of their vehicle and ordered Robinson to place his hands in the air. At this time, the officers observed Robinson reaching for his handgun and ordered Robinson to drop his weapon. Instead of heeding the officers’ command, Robinson closed the door of the Cavalier and sped away.
A high speed pursuit of Robinson ensued, at times exceeding speeds of 100 miles per hour. According to the testimony of one of the officers pursuing Robinson, he disregarded traffic signals, operated his vehicle on the wrong side of the road, nearly caused numerous traffic accidents, and evaded a road block that had been set up by police before the Cavalier was eventually disabled.
With Robinson’s vehicle finally stopped, Craig and Cook positioned their car alongside the Cavalier. As Robinson attempted to exit the car, the officers observed him pick up the handgun from the passenger seat. At that moment, Sheriff Joe Cook of the Hamilton County Sheriffs Department ran his vehicle into the Cavalier causing Robinson to fall back into the car and drop the handgun. Robinson again exited the car and attacked Captain Mike Brooks of the Noblesville Police Department who had just arrived upon the scene. A prolonged struggle between *466 Robinson and several officers followed. Robinson managed to get into the driver’s side front seat of Brooks’s vehicle, and, while reaching with his left hand for Brooks’s weapon, he used his right hand to put the vehicle in gear. The vehicle lunged forward and pinned Craig between the doorjamb and Brooks’s vehicle. Although Craig managed to free himself from this position, he was hit again by the vehicle and thrown to the ground. During this time, Brooks continued to struggle with Robinson for control over Brooks’s weapon and in the process was dragged by the vehicle on the ground outside the driver’s side door.
Despite Robinson’s efforts, Brooks was eventually able to reach the gear shift and place the car in park. He then removed the keys from the ignition and continued to struggle with Robinson for possession of his handgun. With the assistance of other officers, including Craig, Brooks secured the handgun and subdued Robinson, placing him under arrest. Upon inspection of Robinson’s vehicle, the officers recovered the orange ski mask, the “Louis Vuitton”-brand duffle bag containing money from the most recent robbery, including several “bait bills” taken from the three teller stations at Harrington Bank, and a .38 caliber handgun loaded with four live rounds.
Robinson was tried and convicted by a jury on the charges stemming from the April 8 armed robbery of Americana Bank in Anderson. The District Court imposed a sentence of 420 months and ordered Robinson to pay restitution in the amount of $5,134. Robinson now appeals.
II. Analysis
A. Admission of Evidence of the Harrington Bank Robbery and the Subsequent Chase
Robinson contends that the District Court abused its discretion by allowing the government to admit evidence of his plea of guilty to the charges stemming from the April 18 armed bank robbery at his trial for the April 8 armed bank robbery. The evidence of the April 18 armed bank robbery included evidence tending to demonstrate the similarities between the two robberies, evidence of the high speed chase and Robinson’s struggle with police subsequent to the chase, and the materials recovered from Robinson’s vehicle following his apprehension, including the orange ski mask, the distinctive duffle bag containing money from the April 18 armed bank robbery, and the handgun used in both robberies. Prior to trial, the District Court conducted an evidentiary hearing on the admissibility of this evidence and, over Robinson’s objections, ruled that the admission of this evidence was not prohibited by Rule 404(b) of the Federal Rules of Evidence. The admission of evidence under Rule 404(b) by a district court is reviewed only for an abuse of discretion.
United States v. Moore,
Rule 404(b) specifically prohibits the introduction of evidence of other crimes, wrongs, or acts when such evidence is offered to prove the character of a person in order to show conduct in conformity therewith on a particular occasion. As we have explained, “[ajlthough a defendant’s past criminality may well have some probative worth concerning whether the defendant acted criminally at a later date, the probative value of this evidence will be relatively small and the risk of its misuse by the factfinder will be great.”
United States v. Smith,
The categories that appear in the text of Rule 404(b) are not exclusive. Indeed, Rule 404(b) does not require the party offering the evidence to force the evidence into a particular listed category, but simply to show
any
relevant purpose other than
*467
proving conduct by means of a general propensity inference. We have held that evidence may be admissible under Rule 404(b) to demonstrate
modus operandi. Smith,
We have fashioned a four-prong test to determine the appropriateness of admitting evidence of other crimes, wrongs, or acts. Under this test, the admissibility of the evidence is dependant upon whether: (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the evidence has probative value that is not substantially outweighed by the danger of unfair prejudice.
Moore,
We are able to dispense quickly with consideration of the first and third prongs. With respect to the first prong, the government offered evidence demonstrating the similarities between the two robberies and the evidence of flight and Robinson’s struggle with police after the April 18 robbery to show identity and consciousness of guilt with respect to the April 8 robbery. Evidence demonstrating the similarities between the manner in which the two armed bank robberies were carried out goes toward proving identity by establishing the perpetrator’s
mo-dus operandi.
Evidence of flight is admissible under Rule 404(b) to show consciousness of guilt, as well as guilt itself.
See United States v. Hunter,
When considering the second and fourth prongs — whether the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue and whether the evidence has a probative value that is not substantially out *468 weighed by the danger of unfair prejudice— it is helpful to consider the evidence of the similarities between the two armed bank robberies first and then to turn our attention to the evidence of flight and Robinson’s struggle with the police.
As stated, the evidence demonstrating the similarities between the two crimes amounts, in essence, to evidence demonstrating
modus operandi
We have cautioned that “[i]f defined broadly enough,
modus op-erandi
evidence can easily become nothing more than the character evidence that Rule 404(b) prohibits.”
Smith,
There are numerous similarities between the armed bank robberies of April 8 and April 18 that make them “clearly distinctive from the thousands of other bank robberies committed each year.”
Moore,
Given the similarities between the two robberies, it cannot be said that the probative value of evidence demonstrating these similarities is substantially outweighed by the danger of unfair prejudice. Moreover, any risk of unfair prejudice was lessened by the jury instruction given by the District Court that the evidence offered by the government relating to the April 18 bank robbery was relevant only to the purposes contemplated by Rule 404(b).
See Smith,
The government’s theory for the admission of evidence of the chase and Robinson’s struggle with the police following the April 18 armed bank robbery, however, is somewhat more troublesome. During the eviden-tiary hearing before the District Court, the government argued that the evidence of the chase and subsequent struggle demonstrated Robinson’s consciousness of guilt with respect to the April 8 armed bank robbery. The government explained that the motivation prompting flight and struggle on April 18 was twofold' — Robinson was fleeing from the most recent armed bank robbery and he also knew that he possessed evidence connecting him to the April 8 armed bank robbery. Thus, he had a dual purpose in fleeing from law enforcement after the April 18 armed bank robbery. The government argued that the fervor with which he attempted to escape from the police was proportional to Robinson’s consciousness of guilt, and, therefore, the magnitude of Robinson’s resistance *469 was directly related to Robinson’s consciousness that he possessed evidence connecting him with not one, but two armed bank robberies. In short, the government asserted that Robinson was fleeing, in effect, from both armed bank robberies.
We have long adhered to the Supreme Court’s cautionary language urging courts to be wary of the probative value of flight evidence.
See Wong Sun v. United States,
In the instant case, Robinson’s conduct in attempting to elude police after the April 18 armed bank robbery certainly constituted flight. It cannot be seriously disputed that this flight was the result of consciousness of guilt. The degree of confidence with which the jury could reasonably draw inferences from Robinson’s flight to an ultimate finding of his guilt with respect to the April 8 armed bank robbery is also substantial. The relative proximity in time between the crime charged and Robinson’s flight and the fact that at the time he fled from police he possessed considerable evidence linking him to the April 8 armed bank robbery are sufficient to establish a reasonable inference that he fled because of consciousness of guilt stemming from both the April 8 and the April 18 armed bank robberies.
Despite Robinson’s arguments to the contrary, evidence of flight from the April 18 bank robbery is not merely generalized evidence offered to establish Robinson’s character or his propensity to commit criminal acts. By establishing that Robinson fled from the April 18 armed bank robbery and struggled with police while in possession of evidence linking him to both that robbery and an armed bank robbery occurring a mere ten days before that date, the government was able to offer proof that Robinson possessed a culpable state of mind. As we have explained, “[t]his is a legitimate use of such evidence, whether one conceives of it as outside the scope of Rule 404(b) because of the evidence’s ‘intrinsic’ value deriving from its specific relationship to the facts of the offense or as countenanced by Rule 404(b) because of its relevance in proving a non-character-related consequential fact — consciousness of guilt.”
Acevedo,
While it may be tempting to conclude Robinson’s flight from the April 18 armed bank robbery has no bearing on his consciousness of guilt with respect to the April 8 armed bank robbery, and, indeed, Robinson argues as much, this position can be dispensed with if one considers two scenarios not far removed from the instant case. Under Rule 404(b), evidence of flight certainly would be admissible to show consciousness of guilt of a defendant who knew he was in possession of evidence demonstrating his involvement in an armed bank robbery if that defendant fled from or struggled with police even if the police were attempting to stop him for a mere routine traffic violation, such as a broken taillight, shortly after the commission of the bank robbery.
Cf. United States v. Dierling,
To the extent that the evidence at issue falls outside the scope of Rule 404(b), we will not deprive a party from presenting evidence when its exclusion leaves a conceptual or chronological void.
See United States v. Lakey,
Robinson contends that the District Court failed to balance the probative value of the evidence against its potential for undue prejudice as dictated by Rule 403. This contention is simply belied by the record in this case. After identifying the probative worth of the evidence of the similarities between the two armed bank robberies and of the evidence of flight, the District Court expressly concluded that this worth was not substantially outweighed by the danger of undue prejudice. Although the danger of unfair prejudice to Robinson existed with respect to the evidence of the chase and struggle, the District Court took careful steps to insure that the jury viewed this evidence in the proper light by specifically instructing the jury as to the limited use to which it could be put, and we presume the jury obeyed the court’s instruction.
See United States v. Evans,
B. Sufficiency of the Evidence
Robinson also claims that the government failed to present sufficient evidence from which a rational jury could determine that he committed the charged crimes. A defendant advancing such an argument faces a “nearly insurmountable hurdle.”
United States v. Hickok,
Robinson cannot meet this onerous burden. The jury found Robinson guilty of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and use of a firearm during the commission of this offense in violation of 18 U.S.C. § 924(c). To prove that a defendant committed armed bank robbery, the government must show that the defendant forcibly robbed a bank and that by use of a dangerous weapon or device, he assaulted someone or put lives in danger. 18 U.S.C. § 2113(a), (d);
see also Woods,
The record is replete with evidence that would permit a reasonable juror to find Robinson committed the charged crimes. The testimony of employees from both Americana Bank and Harrington Bank demonstrated the numerous similarities between the two armed bank robberies. These similarities included: the use of an orange ski mask with the single oval opening, a distinctive duffle bag, a handgun, and a blue Chevrolet Cavalier; the identification of the perpetrator of the armed bank robberies as a black male; and the perpetrator’s verbal commands and actions during the commission of both robberies that included the brandishing of a handgun, vaulting over the teller’s counter, and removing the money from the teller drawers himself. Officers responding to the April 18 armed bank robbery testified regarding the recovery of an orange ski mask, a distinctive duffle bag, and a handgun from the Cavalier Robinson used in attempting to evade police. Robinson’s supervisor testified that Robinson was absent from work on both April 8 and April 18. A former coworker testified that he was missing a pair of brown work coveralls that Robinson frequency borrowed — the same type of coveralls worn by the perpetrator during the commission of the April 8 armed bank robbery.
Robinson makes much of the fact that the government resorted to circumstantial evidence to establish that he was the individual who committed the April 8 armed bank robbery. However, this fact is of little help to Robinson. As we have explained:
“[Cjrimes may be proved entirely by circumstantial evidence____” United States v. Townsend,924 F.2d 1385 , 1390 (7th Cir.1991). Circumstantial evidence is not less probative than direct evidence, and, in some cases is even more reliable. United States v. Grier,866 F.2d 908 , 923 (7th Cir.1989). “If the government proves its case by circumstantial evidence, it need not exclude every reasonable hypothesis of innocence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt____ The trier of fact is free to choose among various reasonable constructions of the evidence. United States v. Radtke,799 F.2d 298 , 302 (7th Cir.1986).”
United States v. Rose,
And while [w]e recognize that in reviewing a guilty verdict based on circumstantial evidence, we must insure that the verdict does not rest solely on the piling of inference upon inference ... neither should we view every bit of evidence in isolation. Only when the record contains no evidence, regardless of how it is weighted, from which the [trier of fact] could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict.
Moore,
In the instant case, the record clearly shows that a reasonable juror could have found that the government proved identity beyond a reasonable doubt. The evidence demonstrating the similarities between the two armed bank robberies establishes that Robinson used the same
modus operandi
in the April 8 armed bank robbery to commit the April 18 armed bank robbery.
Id.
When this circumstantial evidence is considered in conjunction with the direct evidence offered by the government at trial, a sufficient basis existed for a reasonable juror to conclude that Robinson committed the April 8 armed bank robbery and that he used a firearm during the commission of this offense. Furthermore, although Robinson did present evidence of an alibi, “[t]he sorting out of uncertain or conflicting testimony is clearly within the domain of the jury.”
United States v. Brooks,
III. Conclusion
For the foregoing reasons, we reject Robinson’s appeal and his conviction is Affirmed.