Remedial measures

On the afternoon of July 8, 1985, a man wearing a ski mask and armed with a small pistol robbed the First Pennsylvania Bank in Frederiksted, St. Croix, Virgin Islands. The robber took over $7,000 in cash from a bank teller, approximately $5,000 in cash from a customer, and personal and travelers’ checks. The culprit ran from the bank, scurried around in the street momentarily, and then commandeered a passing taxi van. While driving away from the scene, the robber pulled off his ski mask. An eyewitness who had slipped out of the bank during the robbery saw the maskless man and identified him at trial as petitioner Reuben Dowling. Other witnesses testified that they had seen Dowling driving the hijacked taxi van outside of Frederiksted shortly after the bank robbery. Following his arrest, Dowling was charged with the federal crimes of bank robbery, 18 U.S.C. § 2113(a), and armed robbery, § 2113(d), as well as crimes under Virgin Islands law. Dowling pleaded not guilty to all charges. His first trial ended with a hung jury. He was tried again and convicted, but the Third Circuit reversed this conviction on appeal. After a third trial, Dowling was convicted on most of the counts. The trial judge sentenced him to 70 years’ imprisonment. During petitioner’s third trial, the Government called Vena Henry to the stand over objection. Ms. Henry testified that a man wearing a knitted mask with cutout eyes and carrying a small handgun had, together with a man named Delroy Christian, entered her home in Frederiksted approximately two weeks after the First Pennsylvania Bank robbery. A struggle ensued. She unmasked the intruder and identified him as Dowling. Based on this incident, Dowling had been charged under Virgin Islands law with burglary, attempted robbery, assault, and weapons offenses. He had been acquitted after a trial held before his third trial in the bank robbery case. The Government elicited Henry’s testimony to strengthen its identification of Dowling as the bank robber through similarities in the mask and gun. It also sought to link Dowling with Delroy Christian. Christian had been seen in a white Volkswagen parked in front of the bank with the car door open into the street the day before the robbery. Before opening statements, the Government disclosed its intention to call Ms. Henry and explained its rationale under Rule 404(b) of the Federal Rules of Evidence. After a hearing, the District Court characterized the testimony as highly probative circumstantial evidence and ruled that it was admissible under Rule 404(b). When Henry left the stand, the District Court instructed the jury that petitioner had been acquitted of robbing Henry and emphasized the limited purpose for which Henry’s testimony was being offered. On appeal, the Third Circuit determined that the District Court should not have admitted Henry’s testimony but nevertheless affirmed Dowling’s conviction, holding that the admission was harmless under the non-constitutional standard. Dowling claimed that the Third Circuit was wrong when it found that the admission of Henry’s testimony did not offend the Constitution and therefore declined to apply the Chapman v. California harmless-error standard. The Supreme Court granted certiorari to consider Dowling’s contention that Henry’s testimony was inadmissible under both the Double Jeopardy and the Due Process Clauses of the Fifth Amendment.

In September 1976, Jack Payner was indicted in the United States District Court for the Northern District of Ohio on a charge of falsifying his 1972 federal income tax return in violation of 18 U.S.C. § 1001. The indictment alleged that Payner denied maintaining a foreign bank account when he knew he had one at the Castle Bank and Trust Company of Nassau, Bahamas. The government's case relied on a loan guarantee agreement dated April 28, 1972, in which Payner pledged funds in his Castle Bank account as security for a $100,000 loan. Payner waived his right to a jury trial and moved to suppress the guarantee agreement. The district court consolidated the suppression hearing with the trial on the merits. After hearing evidence, the court found Payner guilty based on all evidence but determined that the government had discovered the guarantee agreement by exploiting a flagrantly illegal search of Michael Wolstencroft's briefcase on January 15, 1973. The court suppressed all government evidence except Payner's 1972 tax return and related testimony, then set aside the conviction because the remaining evidence was insufficient. The illegal search stemmed from the IRS's Operation Trade Winds investigation into American citizens' financial activities in the Bahamas, which focused on the Castle Bank in 1972. Special Agent Richard Jaffe enlisted private investigator Norman Casper to gather information. Casper arranged for Sybol Kennedy to host Wolstencroft, a Castle Bank vice president, in Miami. On January 15, 1973, while Wolstencroft dined with Kennedy, Casper stole the briefcase containing bank documents, delivered it to Jaffe, who supervised the copying of approximately 400 documents before returning it. The documents revealed connections to the Bank of Perrine in Florida, leading to subpoenas that uncovered the loan guarantee agreement. The district court found that the United States, through Jaffe, knowingly and willfully participated in the unlawful seizure. The court concluded that the government had counseled agents that the Fourth Amendment standing limitation allowed unconstitutional searches of one person to obtain evidence against third parties. The Court of Appeals for the Sixth Circuit affirmed the suppression in a brief order. The Supreme Court granted certiorari to review the case.