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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

 

UNITED STATES OF AMERICA, ) 

) 

Plaintiff, ) 

v. ) No. 20 CR 369 

) 

MARTIN CROSSLEY, ) Hon. Martha M. Pacold 

) 

Defendant. ) 

 

 

DEFENDANT’S RESPONSE TO GOVERNMENT’S MOTION TO ADMIT OTHERACTS EVIDENCE 

 

NOW COMES, the Defendant, MARTIN CROSSLEY, by and through his 

attorney, QUINN A. MICHAELIS, and respectfully moves this Honorable Court to 

issue an order precluding the Government from presenting specific evidence of other 

crimes to the jury pursuant to Fed. R. Evid. Rule 404(b) and 403. Defendant states 

to the Court the following in support of his opposition:

INTRODUCTION 

The government filed a Notice of Intent to Offer Evidence Pursuant to 

Federal Rule of Evidence 404(b), and to Impeach By Criminal Conviction Pursuant 

to Rule 609(b). (Doc. at 94 ). The government seeks to admit a three previous bank 

robberies for the purported reason of establishing Mr. Crossley’s identity in this 

case through modus operandi. The proposed convictions are offered for propensity 

purposes only, does not prove identity or modus operandi, are not similar enough 

and close enough in time to the present case, and are unfairly prejudicial. As such, 

this Court should bar the government’s proffered 404(b) evidence. 
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ARGUMENT 

Under Federal Rule of Evidence 404(b), “Evidence of other crimes, wrongs, or 

acts ins not admissible to prove the character of a person in order to show action in 

conformity therewith,” but may be admissible for “other purposes such e as proof of 

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident.”

The Seventh Circuit has held that a defendant’s prior bad act may be 

admitted to demonstrate “a defendant’s distinctive manner of operation, or modus 

operandi.” United States v. Simpson, 470 F.3d 492, 497-8 (7th Cir. 2007). Such 

evidence is admissible under a modus operandi theory only when “the evidence 

bears ‘a singular strong resemblance to the pattern of the offense charged’ with the 

similarities between the two crimes ‘sufficiently idiosyncratic to permit an inference 

of pattern for purpose of proof.’” Id. at 498 (quoting United States v. Thomas, 321 

F.3d 627, 634-35 (7th Cir. 2003). The Seventh Circuit has cautioned that “if defined 

broadly enough, modus operandi evidence can easily become nothing more than the 

character evidence that Rule 404(b) prohibits.” United States v. Smith, 103 F.3d 

600, 603 (7th Cir. 1996). Further, “if a pattern so generic can establish modus 

operandi this fairly limited exception to Rule 404(b) would gut the Rule, rendering 

it useless as a check on character evidence that would otherwise be inadmissible.” 

Thomas, 321 F.3d at 635. 

To determine whether the proffered convictions establish a modus operandi, 

the Court must evaluate whether the commonalities between the robberies make 
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them “clearly distinctive from the thousands of robberies committed each year.” 

United States v. Smith, 103 F. 3d 600, 603 (7th Cir. 1996). In so evaluating, the focus 

is on “whether the similarities between the other acts evidence and the charged crime 

clearly distinguish the defendant from other criminals committing the same crime.” 

Id (noting the idiosyncrasies as the robber’s build, the use of a getaway driver, 

brandishing a knife, as opposed to a gun, and holding the knife in a distinctive 

manner, going behind the counter to take money rather than demanding it from the 

teller, and targeting small, sparsely staffed banks.)

The similarities the government points to as distinctive are instead, generic 

similarities that do not distinguish the robberies from the thousands committed each 

year. The government suggest that the mere fact of wearing a disguise is sufficient 

to establish modus operandi, pointing out that in the previous robberies and the 

charged robbery, the disguise consisting of a long sleeve shirt, hat, and glasses. 

“Many robbers disguise their identifies.” United States v. Seals, 419 F.3d 600, 607 

(7th Cir. 2005) (excluding reverse 404(b) evidence because two robberies were 

dissimilar). A long sleeve shirt and knit hat are not idiosyncratic items of clothing, 

particularly in this case where the clothing and hat the robber was described as 

wearing is particularly distinctive (red shirt, yellow safety vest and large panama 

style hat). In the three previous robberies, the evidence proffered by the government

suggests that Mr. Crossley wore dark rimmed glasses. The government suggests that 

these were glasses that Mr. Crossley “did not usually wear,” but provides no proof of 

this contention. Further, the “glasses” worn by the robber in this case were not dark 
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rimmed glasses, but rather described by the witnesses as having pink lenses, and 

look more like safety googles than prescription glasses. 

Further, the government suggests that there is some distinctiveness about all 

of the robberies occurring in standalone banks in the Chicago suburbs. There are 

potentially thousands of standalone banks in the Chicagoland area, and that 

architectural feature is more likely to be the predominant type of bank in the suburbs. 

Further, The Oakbrook robbery occurred 7 miles from the Glen Ellyn bank charged 

in this case. But the Buffalo Grove bank is located 24 miles from the bank charged 

in this case, and in another county (Cook). Similarly, the Des Plaines bank is located 

25 miles from the bank in this case, and is also in Cook County. “If this is all it took 

to admit evidence of other crimes, district courts would be reluctant to exclude 

evidence of dissimilar bank robberies in neighboring counties for weeks after.” Id. at 

607 (stating “[t]hirty-one miles might not appear very far on a globe, but in practical 

terms these two robberies occurred in separate counties.”)

In Powers, cited by the government and distinguishable from the current case,

the court described with great detail the idiosyncratic details of the defendant’s 

robberies: 

in all bank robberies here involved, or the attempt, the defendant wore 

a hat, not the common ski mask or stocking mask. The hat was described in 

the different circumstance by different witnesses as white, Panama, grey or 

grayish, very similar descriptions. An FBI agent testified the most common 

bank robbing disguise was the ski mask or stocking mask, but a hat alone could 

not meet the test. In addition however, the defendant in each instance wore a 

suit and carried a brief case. Not some informal attire. Similar typewritten 

notes in size, content and type were given to the tellers. In each instance the 

defendant wore glasses, sometimes described as wire-rimmed and tinted or sun 

glasses.
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United States v. Powers, 978 F.2d 354, 361 (7th Cir. 1992). 

The cases cited by the government are easily distinguishable from the current 

case. In Brewer, the prior acts involved robberies that were committed by a person 

who used a long wooden stick to prop the bank doors open for fast escape after the 

robberies, while a partner lingered outside of the bank. United States v. Brewer, 915 

F.3d 408, 411 (7th Cir. 2019). Unindicted previous robberies were admitted to show 

the defendant’s identity through modus operandi , in that the charged robberies and 

the robberies admitted under Rule 404(b) all involved the distinctive tactic of using a 

long stick to prop the bank doors open. Id. at 415-16. 

In Price, the distinctive characteristics between the previous robberies and the 

charged robberies were that the “[e]ach robbery was an early weekday morning 

ambush of an employee opening a bank for business. Likewise, in each, the robber(s) 

forced the bank employee(s) at gunpoint to enter the bank, turn of the alarm, access 

the vault, and hit the ground before the robbers made their escapes. The banks were 

located only 5.4 miles apart.” United States v. Price, 516 F.3d 597, 604 (7th Cir. 

2008).

In each of these cases, unique and memorable characteristics of the crimes 

carried over from the 404(b) evidence to the charged offenses. No such unique or 

memorable characteristics are present in this case. 

In fact, the idiosyncrasies between the three robberies Mr. Crossley was 

convicted of are absent from the robbery in this case. In both the Oak Brook and Des

Plaines robberies , Mr. Crossley pulled his shirt sleeves over his hands to prevent his 
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fingers from touching any of the surfaces. The robber in this case, although wearing 

a long sleeve shirt, never pulled the sleeves down over his hands in this distinctive 

manner. In both the Oakbrook and the Buffalo Grove robberies, Mr. Crossley used a 

plastic bag and held it open for the teller to place the cash into. The robber in this 

case pushed a padded envelope to the teller and motioned for her to fill it. In the 

Buffalo Grove and Oak Brook robberies, Mr. Crossley spoke to the victim tellers, in 

this case, the robber said nothing to the teller. 

With respect to the demand notes, the language used in the demand notes is 

inconsistent across the robberies. According to the evidence disclosed by the 

government relating to the previous robberies, the victim tellers for the Buffalo 

Grove bank robbery have differing memories about the contents of the note-Victim

Teller A’s memory of the note’s contents square with the factual basis in Mr. 

Crossley’s plea agreement. However, Victim Teller B, who was also handed the 

note during the robbery recalled the note stating “This is a robbery. This is real. No 

alarm. No dye packs and no GPS.” Victim Teller B’s memory of the phrasing on the 

note is more in line with the demand note from the Des Plaines robbery, which 

similarly mentioned dye packs or tracing devices. 

The purported similarities between the previous convictions and the robbery 

charged in this case are simply generic similarities that do not distinguish this 

particular robbery from other robberies and is not sufficiently similar to the 

previous convictions to be called “idiosyncratic.” As such, the proffered Rule 404(b) 

evidence is by definition, propensity evidence and must be excluded.
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WHEREFORE, the defendant, MARTIN CROSSLEY, respectfully moves this 

Court to exclude the other acts evidence set forth in the government’s Notice 

Regarding 404(b) Matters. 

Respectfully submitted,

s/Quinn A. Michaelis

______________________

Quinn A. Michaelis

Attorney for MARTIN CROSSLEY

Attorney ID No. IL 6293379

73 W. Monroe, Suite 106

Chicago, IL 60601

(312)714-6920

 

CERTIFICATE OF SERVICE 

 I hereby certify that on August 26, 2021 I electronically filed the above 

DEFENDANT’S RESPONSE TO GOVERNMENT’S MOTION TO ADMIT OTHERACTS EVIDENCE 

 

with the Clerk of Court using the CM/ECF system to all listed parties in the case.

Respectfully Submitted on August 26, 2021.