United States v. Eady
United States v. Eady
Opinion of the Court
Defendant-appellant Aubrey Lynn Eady was convicted by a jury of committing bank robbery in violation of 18 U.S.C. § 2113. During trial, the district court denied a motion by Eady requesting that the court either grant immunity to two witnesses whose testimony Eady claims would have been exculpatory to him or order the government to do so. Also during trial, the government’s expert witness displayed to the jury a chart that was never admitted into evidence. On appeal, Eady claims that the district court should have granted or ordered the government to grant immunity to the two potential witnesses, that the court erred in permitting the government to display the chart, and that his trial counsel provided ineffective assistance by failing to object to the use of the chart. For the following reasons, we affirm the judgment of the district court.
I.
On December 3, 1999, someone robbed the Southern Michigan Bank and Trust branch located at 1425 Capital Avenue in Battle Creek. Michigan. The robber entered the bank and presented a teller an envelope in which there was a note that read. “This is a robbery. Hand me 100, 50, and 20. Don’t move. Act claim.” After reading the note, the teller gave the robber approximately $1,200 from the bank’s drawers. The robber then exited the bank, leaving the envelope and note behind.
The Federal Bureau of Investigation (“FBI”) investigated the crime and considered Mark Elliot Johnson — who was ber lieved to have robbed other banks — to be a suspect. In the process of investigating Johnson, the FBI questioned Denise Cross and Brian Lindsey, who were acquaintances of Johnson. Apparently, Cross told the FBI that she may have assisted Johnson in committing another bank robbery, that Johnson admitted to her that he committed other bank robberies, and that she accepted from Johnson proceeds from one of those robberies and used them to purchase cocaine. Lindsey purportedly gave investigators similar information and also stated that Johnson once attempted to recruit him to rob the Southern Michigan Bank and Trust branch on Capital Avenue in Battle Creek. Neither indicated that Johnson actually robbed that branch on December 3, 1999, or planned to do so.
After further investigation, the FBI concluded that Eady, not Johnson, committed the robbery in question. On May 16, 2002, a grand jury returned an indictment
Under subpoena by the defendant, Lindsey, who was represented by court-appointed counsel, took the stand at trial but indicated that he intended to invoke his Fifth Amendment right against self-incrimination. Eady’s trial counsel again moved the court to grant — or order the prosecution to grant — Lindsey immunity for his testimony, and the court again denied the motion, stating that it lacked the authority to sustain it. Consequently, Lindsey provided no evidentiary testimony and was excused.
Numerous other witnesses who testified at trial implicated Eady in the bank robbery. The bank teller who was handed the note identified Eady as the robber. Another teller who witnessed the robbery also identified Eady as the culprit. A customer who witnessed a suspicious man pacing outside the bank immediately prior to the robbery described that man to a police sketch artist, who developed a sketch. The customer later identified the man as Eady from a photograph lineup and also identified Eady as that man in court. Finally, an acquaintance of Eady identified him as the person in the sketch.
The prosecution also presented an expert witness, who testified that fingerprints on the envelope left behind by the robber matched those of Eady.
On September 9, 2002, the jury found Eady guilty of violating 18 U.S.C. § 2113. On January 6, 2003, the district court entered judgment against Eady and sentenced him to a prison term of 210 months, three years supervised release, and a total of $3,880 in assessments, fines, and restitution. Eady filed a timely notice of appeal on February 14, 2003.
II.
Eady first argues that the district court erred in failing to grant or order the government to grant immunity to Lindsey and Cross for their potential testimony. Because this issue presents a question of law concerning the scope of a district court’s authority, we review the issue de novo. See United States v. Ross, 245 F.3d 577, 585 (6th Cir. 2001).
We have never expressly decided whether an exception is available in either of these circumstances, nor need we do so here, Eady’s case fits neither exception. Eady concedes that the prosecution in this case did not grant immunity to any of its witnesses. Hence, the first possible exception does not apply. He also conceded at oral argument that the government engaged in no misconduct in this case, making the second exception inapplicable as well. In sum, the district court had no authority to grant or to direct the government to grant immunity to either Lindsey or Cross for their testimony, and it did not err in refusing to do so.
Eady next asserts that the district court erred in allowing the government’s expert to use the fingerprint chart while explaining to the jury his conclusion that Eady’s fingerprints matched those on the envelope left behind by the robber. Because Eady’s trial counsel did not object to the use of the chart at trial, we review the district court’s decision to allow its use for plain error. United States v. Fortson, 194 F.3d 730, 736 (6th Cir. 1999). A defendant can establish plain error only by demonstrating that “(1) an error occurred; (2) the error was obvious or clear; (3) the error affected his substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Cline, 362 F.3d 343, 348 (6th Cir. 2004).
Eady’s evidentiary claim fails because no error occurred here. To the extent that Eady argues that it was improper to display the chart because it showed a fingerprint not entered into evidence, the argument is foreclosed by the fact that Eady stipulated that the fingerprint need not be entered into evidence. Eady also suggests that the chart was unfairly prejudicial under Fed.R.Evid. 403. However, the only prejudice to which he can point is the fact that the chart contained evidence detrimental to his case, which is not sufficient to constitute unfair prejudice. United States v. Weinstock, 153 F.3d 272, 278 (6th Cir. 1998) (“If all evidence adverse to a defendant was subject to exclusion under Rule 403, then no government evidence would ever be deemed admissible. The test under Rule 403 is not whether the evidence is detrimental, but whether it is so unfairly prejudicial as to substantially outweigh its probative value.”).
Finally, Eady contends that his trial counsel deprived him of his constitutional right to effective assistance of counsel by fading to object to the use of the chart. Ordinarily, this court will not evaluate an
III.
For the foregoing reasons, we affirm the judgment of the district court.
. The defense also subpoenaed Cross, but she never appeared at trial.
. The expert also testified that none of the fingerprints on the envelope matched a known fingerprint of Johnson.
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