In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1677

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

JOSEPH E. DUNKIN,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 354—Robert W. Gettleman, Judge.

____________

ARGUED DECEMBER 8, 2005—DECIDED FEBRUARY 22, 2006

____________

Before BAUER, POSNER, and KANNE, Circuit Judges.

POSNER, Circuit Judge. Joseph Dunkin was convicted by a

jury of two bank robberies, committed about a month apart,

and was sentenced to a total of 210 months in prison. His

only defense at trial was that he had been coerced to rob the

banks, and his only complaint on appeal is that the introduction by the government, to refute his defense, of another,

unsolved bank robbery that he had committed five years

earlier was unduly prejudicial and should therefore have

been excluded from evidence under Rule 403 of the Federal

Rules of Evidence (he says under 404(b), but that, as we’ll

see, is mistaken).
2 No. 05-1677

In the first of the two robberies with which Dunkin was

charged, he gave a teller a note that said “I have a gun, give

me the cash,” and displayed to the teller what she testified

“looked like a gun” or the “nozzle [a delicious malapropism] of a gun.” She gave him $1308 and he pocketed the

money and left. Surveillance cameras showed an unidentified man in the background during the robbery. 

In the second robbery, which was of a different branch of

the same bank, Dunkin entered in the company of another

man and they talked briefly while Dunkin was waiting in

the teller’s line. When he reached the front of the line he

gave the teller a note similar to the one he had given the

teller in the previous robbery, except that it demanded only

$300. The teller gave Dunkin a bundle of bills (which he

failed to count—it contained only four $20 bills) wrapped

around a dye-pack. Dunkin left; his companion remained in

the bank. The teller summoned the bank’s security guard,

who rushed out to the parking lot and found Dunkin sitting

in a taxicab covered with the red dye from the dye-pack,

which had exploded shortly after he left the bank. Dunkin

told the guard that the other men in the parking lot had

“made me do it,” that they were holding his mother hostage, that they had a machine gun, and that “they always

make me do this because I am a homosexual.” The guard

questioned the men in the parking lot, who denied having

had anything to do with the robbery. As for the man who

had entered the bank with the defendant, he assisted the

guard in arresting the defendant and later returned to the

bank in the company of a second man, one of the men who

had been in the parking lot. They were seeking a reward.

They gave the bank their names.

Dunkin elaborated upon his tale of coercion to the FBI. He

said that “Big Ripple,” the leader of a drug gang, had

ordered him to rob the banks in order to repay a debt of
No. 05-1677 3

several hundred dollars that he owed the gang for drugs,

and had told him that if he didn’t commit the robberies Big

Ripple would kill Dunkin’s mother, sister, and brother—the

last a member of the Illinois state assembly. Big Ripple was

attended by other gang members, whom Dunkin identified

to the FBI as “Big Unc,” “Shorty G,” and “Little Mo.”

Dunkin said that when he left the bank after the second

robbery he entered the gang members’ car and that was

when the dye-pack exploded; the occupants screamed “this

shit’s on fire” and he jumped out of the car and into the cab.

He also told the FBI that he had committed a similar

robbery (hitherto unsolved) in 1998, and that the same gang

had made him commit that robbery also. The surveillance

video from the earlier robbery was recovered and it showed

not only the defendant committing the robbery but also an

unidentified man in the background.

The FBI interviewed the two men who had returned to the

bank after the defendant’s arrest, in (unsuccessful) quest of

a reward. One, it turned out, was the driver of the car into

which Dunkin had first rushed after the second robbery,

and he acknowledged having driven Dunkin to the bank but

denied knowing that Dunkin intended to rob it. The other

was a homeless man; it was he who had entered the bank

with Dunkin. The FBI investigated the two and concluded

that neither had any gang affiliation.

A defense should not be submitted to the jury, even in a

criminal case, if there is no credible evidence to support it.

United States v. Hendricks, 319 F.3d 993, 1006 (7th Cir. 2003);

United States v. Nelson-Rodriguez, 319 F.3d 12, 40 (1st Cir.

2003). Submission in such circumstances is just an invitation

to jury nullification, a practice that is improper, though the

remedies against it are limited. Dunkin’s defense of coercion

should not have been submitted. His tale was fantastic and
4 No. 05-1677

was refuted by the 1998 robbery (of which more shortly).

Even if believed, his testimony would not have established

coercion. An essential element of the defense is that the

defendant had no alternative to submitting to the demand

that he commit a crime. United States v. Bailey, 444 U.S. 394,

410 (1980); United States v. Johnson, 416 F.3d 464, 468 (6th

Cir. 2005). Five years gave Dunkin ample alternatives. In

particular, he could have complained to the police immediately after the 1998 robbery, for there is no suggestion that

Big Ripple and his associates were holding Dunkin’s mother

hostage then. Or for that matter after the first of the 2003

robberies. Without a requirement that the defendant negate

alternatives to committing crimes, the coercion defense

would expand to unreasonable proportions, providing a

ready excuse to members of the underworld, whose environment is indeed menacing.

But since the judge decided to let Dunkin present a

defense of coercion, the government was entitled to present

the evidence of the 1998 robbery to refute the defense. Rule

404(b) of the Federal Rules of Evidence forbids the government to present evidence of the defendant’s prior crimes in

order to show that he has a propensity to commit crimes, or

that he is simply a bad man, and that in either case the jury

might as well convict him without worrying whether the

government has actually proved him guilty beyond a

reasonable doubt of the crime for which he is being tried.

But there is no prohibition in the rule against using priorcrime evidence for other purposes, such as to demonstrate

the implausibility of a defense of coercion. United States v.

Cunningham, 103 F.3d 553, 556 (7th Cir. 1996); United States

v. Sargent, 98 F.3d 325, 329 n. 1 (7th Cir. 1996); United States

v. Verduzco, 373 F.3d 1022, 1026-27 (9th Cir. 2004). Dunkin

is correct that such evidence can be disallowed if it is

deemed unduly prejudicial, but is incorrect that this is
No. 05-1677 5

required by Rule 404(b). The rule does not mention prejudice. The pertinent rule is 403, United States v. Whitlow, 381

F.3d 679, 686 (7th Cir. 2004); United States v. Rhodes, 229 F.3d

659, 661 (7th Cir. 2000); United States v. Garcia-Meza, 403 F.3d

364, 368-69 (6th Cir. 2005), which authorizes relevant

evidence to be excluded, but only “if its probative value is

substantially outweighed by the danger of unfair prejudice”

(or by other factors, irrelevant to this case).

The probative value of the 1998 robbery in relation to the

defense of coercion was considerable; less obviously, the

prejudicial effect was slight. Dunkin had confessed to the

two 2003 robberies. So there was no doubt that he was a

bank robber, and therefore there was no occasion for the

jury to infer from the 1998 robbery that he had probably

committed the later robberies as well—they knew he had

committed them—he confessed them to an FBI investigator,

who testified to the confession. Moreover, their commission

was an essential premise of the defense of coercion. Dunkin

would have been laughed out of court had he testified both

that he didn’t rob the banks and that he had been forced to

rob them.

Of course the jury may have thought him a worse person

because he had committed (at least) three rather than two

bank robberies. But that rather slight prejudicial effect was

dwarfed by the probative effect of the 1998 robbery in

refuting his defense of coercion.

AFFIRMED.
6 No. 05-1677

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-22-06