United States v. Earl Walker
United States v. Earl Walker
Opinion
*259 Two armed men robbed three cash-and-check stores in the Indianapolis area. The heists were not especially sophisticated, but they went viral over the robbers' 1970s-themed disguises. That attention drew an anonymous tip, which led law enforcement to Duprece Jett and Damion McKissick, as well as a third man, Earl Walker, who officers believed was involved in a planned fourth robbery.
The government charged all three men with conspiracy in violation of the Hobbs Act and attempted bank robbery. A jury convicted them on both counts. Jett, McKissick, and Walker now appeal, citing a host of trial errors they submit require acquittal or a new trial. We see only one such error, with respect to the sufficiency of the evidence on the attempted-robbery count. We reverse and remand with instructions that the district court enter a judgment of acquittal on that count and resentence the defendants. Otherwise, we affirm.
I. Background
On September 15, 2015, two men, disguised and armed, robbed an Advance America Check Cashing store in Indianapolis. A few days later, on September 19, 2015, the same men hit an Indiana Members Credit Union branch in Indianapolis. Two months later, on November 19, 2015, they robbed a different Credit Union branch, located in Avon, Indiana. Each time, the men arrived and fled in a recently stolen vehicle, or, as it is known, a "switch car."
A state-federal task force investigated the string of robberies. It fielded an anonymous tip claiming one of the two men was Damion McKissick. The task force began surveilling McKissick, which led it to Duprece Jett. While observing Jett and McKissick on the morning of December 12, 2015, officers observed four cars at Jett's residence. Two cars left the residence and headed to a public library. At the library one driver exited his car and entered a Buick LeSabre, which was recently reported stolen. All three cars drove away together.
The three cars made several stops: a hotel, Jett's residence, a gas station, and an apartment-complex parking lot. The LeSabre then left the parking lot alone, and it drove near several businesses-including an Indiana Members Credit Union branch-before returning. Officers suspected that a fourth robbery was imminent. After the LeSabre left the parking lot a second time, again alone, officers attempted to pull it over. The LeSabre sped off and the officers gave chase. After exceeding 100 miles per hour, weaving through streets, forcing vehicles off the road, and driving into oncoming traffic, the LeSabre lost control and slid into a ditch.
*260 Its driver, Earl Walker, and passenger, McKissick, attempted to run on foot, but officers apprehended them. Officers searched the LeSabre and found a ski mask, two pairs of gloves, a backpack, a duffle bag, and an airsoft pistol.
The government charged Jett, McKissick, and Walker with two counts each. Count 1 charged conspiracy in violation of the Hobbs Act.
A. Pretrial Proceedings
Before trial, Walker moved under Federal Rule of Criminal Procedure 14(a) for a severance. He argued that a joint trial with Jett and McKissick would prejudice him. In addition to the optics of being tried alongside the men accused of committing the three armed robberies, Walker claimed that a video recording taken of McKissick at the stationhouse would unfairly inculpate him.
Specifically, at the stationhouse just after the car chase, law enforcement placed McKissick and Walker in adjacent interrogation rooms. Walker invoked his Fifth Amendment rights; McKissick gave a recorded statement. While McKissick awaited questioning, and while being recorded, he attempted to communicate with Walker. He shouted:
Hey Earl! Earl! Nothing ... joyriding ... fleeing.
Hey Earl! Hey Bro
They jumped the gun. I say they jumped the gun. We ain't do shit. They didn't give us a chance. So-hey-uhh.
Walker argued that these statements incriminated him. He also contended that admitting the statements would pit his Sixth Amendment right to confrontation against McKissick's Fifth Amendment right not to testify, which
Bruton v. United States
,
The district judge denied Walker's motion. She ruled that a joint trial itself would not unfairly prejudice Walker, and she explained that Walker's Bruton concerns were premature: the statements did not appear "powerfully incriminating," the government had not moved to admit the statements, and, even if it did, the government could redact the statements to avoid implicating Walker. Following suit, the government later moved in limine to admit a scrubbed video recording of the statements with Walker's name omitted. The district judge granted that motion and admitted the statements under Federal Rule of Evidence 801(d)(2)(A) as statements offered against a party-opponent.
Just before trial began, the parties exchanged witness lists. The government's list included two FBI Special Agents-Adam Vail and Brian Guy-but it did not indicate whether those witnesses (or any witnesses) would testify in a lay capacity, an expert one, or both. This procedure was in line with the district judge's former courtroom rule that she would not designate a witness as an expert. 1
B. The Trial and Sentencing
The jury trial began on February 6, 2017, and lasted five days. The government elicited testimony from several employees of the check-and-cash stores and FBI agents, as well as admitted into evidence surveillance footage from the three robberies.
*261 As for the September 15 robbery, an Advance America employee testified that two men entered wearing sunglasses, wigs, and construction jackets. One man was heavy set and the other was thin, according to the witness. Surveillance footage confirmed this description. The heavier man was dressed as funk legend Rick James, with a braided, beaded wig and flashy sunglasses; the thinner man was dressed, seemingly, as Youngblood Priest from the 1972 hit film Super Fly , with a long-haired wig, mustache, and oversized sunglasses of his own. Both men wore bright orange construction vests. The government called a man who worked with Jett at a logistics company to testify that the construction jackets the men wore were identical to the ones issued to the company's employees. An FBI agent, Kevin Horan, testified that he analyzed Jett's and McKissick's cell-phone data from September 15, which indicated that both men were in the area of the Advance America around the time of the robbery. No eyewitness, however, could identify Jett or McKissick as the robbers. The men made off with $2,751.
Regarding the September 19 robbery, a Credit Union branch manager testified that, after the two men entered, one hopped over the teller desk. He pointed a gun and told everyone to get down. She observed that the men wore hats and wigs, but she otherwise did not "get a good look at" the men. Surveillance footage again showed the men dressed as Rick James and Youngblood Priest. Another employee testified that he saw one of the men grab a Credit Union employee by the neck and threaten him. He, too, could not identify Jett or McKissick as the robbers. None of the government's eyewitnesses could.
Jett's counsel tried to highlight this point during his cross-examination of Agent Guy. He asked whether it was true that the investigation had "uncovered" no one who could identify either Jett or McKissick as the robbers. Agent Guy disagreed, but he did not elaborate. Before redirect, the government requested a sidebar. It argued that Jett's questioning had opened the door for Agent Guy to identify Jett as one of the two men in the surveillance footage based on Agent Guy's interaction with Jett on December 14, 2015, when he helped execute a search warrant. The government also contended that Agent Guy's identification was admissible under Federal Rule of Evidence 701, as he could testify that Jett's appearance had changed since late 2015 by losing weight. The district judge agreed on both counts. She allowed the government to ask about whether Agent Guy-but not any other law-enforcement agents-had identified Jett as the robber based on the surveillance footage and testify to Jett's change in appearance. Back on the stand, Agent Guy testified that Jett appeared to have lost weight and that, based on his earlier interaction with Jett, Jett was the robber pictured on tape with the beaded-hair wig.
The government put on more evidence regarding the September 19 robbery. A fingerprint examiner testified that she found a fingerprint on the Credit Union's exit door that matched Jett's, although she testified that she could not identify when the print was left. This concession mattered, since Jett banked at this Credit Union. Agent Horan testified that Jett's and McKissick's cell-phone data showed that both men were in the area of the Credit Union around the time of the September 19 robbery. This time, the men stole $19,001.61.
As for the final robbery, on November 19, an employee of the Avon Credit Union testified that two men with ski masks ran into the store. One of the masked men jumped over the teller desk. That man *262 wore a pair of Nike Air Maxes similar to ones later found at Jett's residence, although law enforcement could not match Jett's shoes to a shoeprint lifted from the teller desk. Another witness testified that one of the two men hit an employee in the head with his gun and demanded that she get into the vault. An employee opened the vault-which housed a cash-dispensing machine and containers of money-and showed McKissick how to open the containers. McKissick, while securing the cash, set down his weapon. A witness identified McKissick weapon's as a 1911-style semi-automatic airsoft pistol-which matched the pistol recovered from the LeSabre after the December 2015 car chase. Again, no witness could identify Jett or McKissick. Agent Horan, however, testified once more that Jett's and McKissick's cell-phone data confirmed that they were near the Credit Union in Avon around the time of the robbery. This robbery was the most lucrative by far, with the robbers making off with over $109,000.
Aside from evidence of the three robberies, the government introduced evidence related to its surveillance of the defendants in December 2015. It admitted text messages between Jett and McKissick from the night of December 11, 2015, the night before the car chase. In the exchange, McKissick asked "when we going hunting"; Jett responded "Giv me a tym." Jett also messaged "where the screwdriver," "Ill handle the whip if u want," and "Fenna bounce." The government had Agent Vail, a case agent, interpret these text messages to the jury, over defendants' objections. Defense counsel argued that Agent Vail was not a party to the conversations and so he lacked personal knowledge of the texts' meaning. Nor could he offer expert testimony, defense counsel argued, because the text messages were written in English and did not require expertise to interpret. The district judge disagreed with the second point, noting that "looking at the jury" some jurors may not understand what some of the terms meant. Agent Vail told the jury, in essence, that these texts reflected Jett and McKissick's plan to steal another car.
The government also introduced evidence recovered after the car chase. The LeSabre's steering column, like that of an earlier-lifted car used during the robbery, had been disabled and hotwired. The items found in the LeSabre contained the defendants' DNA: McKissick's DNA was on the ski mask, backpack, and airsoft pistol; Walker's DNA was on the mask; and Jett's DNA was on the backpack. In addition, the jury saw the scrubbed video recording of McKissick's statements at the stationhouse. It heard another recording, too, of McKissick's post-arrest phone call with his wife. During that call, McKissick told his wife "the mother fuckers jumped the gun." His wife responded, "you should have left well enough alone." An agent further explained that when the task force executed a search warrant at McKissick's residence, it found a tire filled with a backpack, gloves, and ski mask-all items used by the robbers-burned with accelerant in his backyard. Agents also found a duffle bag filled with Jett's possessions at McKissick's residence.
The government further admitted evidence of McKissick's cash usage in the fall of 2015. One witness, for example, testified that McKissick paid for a car on November 20-one day after the robbery in Avon-with a "big wad" of cash. Other evidence, mainly receipts, demonstrated McKissick's heavy cash use in this period. The government also introduced photographs from McKissick's phone in which he boasted large amounts of cash. McKissick countered this evidence, however, with receipts of his own. Namely, he presented evidence of cash payments to himself for *263 copper resales and of a late November jackpot from a casino.
For Walker, the jury heard additional evidence from an FBI digital-evidence forensic examiner about data extracted from Walker's cell phone. That data showed internet searches for "Bank robbery Indianapolis," "Bank robbery Indianapolis 2015," and "rick james bank robber."
Before the close of evidence, the parties and the district judge discussed jury instructions. Defense counsel requested an instruction for the Hobbs Act conspiracy charge, which would have required the jury to find that the defendant committed an overt act to convict. Defense counsel also requested an instruction requiring the jury to agree unanimously as to which overt act each defendant had committed. The district judge rejected these requests.
The jury found each defendant guilty on both counts. The district judge sentenced Jett and McKissick each to a total of 293 months in prison. Walker received 72 months total. This appeal followed.
II. Discussion
Jett, McKissick, and Walker raise several challenges to purported errors in the district court, on topics including the sufficiency of the evidence, jury instructions, and the admission of certain expert and lay testimony. We address each challenge in turn.
A. Sufficiency of the Evidence on the Attempted-Robbery Count
The defendants first argue there was insufficient evidence to convict on Count 2, which charged them with attempted robbery,
Section 2113(a) prohibits attempted robberies in two circumstances: (1) when the attempt is undertaken "by force and violence, or by intimidation"; or (2) when it results in the defendant entering or attempting to enter the targeted financial institution's premises.
The only question left is the appropriate remedy. The defendants argue for a judgment of acquittal on Count 2, but the government suggests vacatur. We agree with the defendants. The Supreme Court instructs that an "evaluation of the evidence as insufficient to convict is equivalent to an acquittal and therefore bars a second prosecution for the same offense."
Bravo-Fernandez v. United States
, --- U.S. ----,
B. Hobbs Act Conspiracy and the Overt-Act Requirement
The defendants' second challenge is to the district judge's refusal to instruct
*264
the jury that Count 1, which charged them with a conspiracy in violation of the Hobbs Act,
We have not yet decided whether a Hobbs Act conspiracy requires an overt act, though we have at least twice suggested that it does. In
United States v. Tuchow
,
The answer to whether a conspiracy requires an overt act lies in the text of the statute that criminalizes the conspiracy.
United States v. Shabani
,
Whitfield v. United States
,
*265 Shabani and Whitfield dictate the conclusion that a Hobbs Act conspiracy does not have an overt-act requirement. The Hobbs Act reads:
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do , or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
The district judge's decision not to instruct the jury on an overt-act requirement was proper. Because we so hold, we need not address the defendants' argument that the jury had to agree unanimously to each overt act.
C. Agent Vail's Testimony
The defendants (primarily Jett and McKissick) next contest the district judge's admission of Agent Vail's testimony interpreting certain words in the text messages Jett and McKissick exchanged. The government offered this part of Agent Vail's testimony, unlike the rest of it, as an expert opinion under Federal Rule of Evidence 702. During this testimony, Agent Vail explained the meaning of certain slang terms-like "whip," "hunting," and "[f]enna bounce"-in describing messages that, according to him, reflected Jett and McKissick's plan to steal a switch car. We review whether a district judge properly applied the Rule 702 framework
de novo
; if she did, we review the decision to admit or exclude expert testimony for an abuse of discretion.
United States v. Parkhurst
,
1. Admissibility Under Rule 702
The defendants first fault the district judge for not evaluating Agent Vail's expert testimony under Rule 702 and the framework set forth in
Daubert v. Merrell Dow Pharmaceuticals, Inc.
,
The defendants essentially concede that they failed to request that the judge engage in the Rule 702 analysis. Yet they offer a reason of their own: any such request would have been futile, they submit, in light of the district judge's former rule that she would not designate and declare expert witnesses as such. That is no excuse. The judge's former rule said that she would not designate or declare an expert; it did not say that she would not undertake the Rule 702 analysis to determine the admissibility of expert testimony. Even if it had, futility does not generally free a litigant from his obligation to raise an objection in the first instance.
See
Divane v. Krull Elec. Co.
,
The defendants did, however, object to Agent Vail's testimony on other grounds that they raise on appeal. For one, they contend that the interpretation of the slang terms Jett and McKissick used is not a subject for expert testimony. These words were within the jury's comprehension, they argue. "Whip," for example, is commonly understood as a car, and "fenna bounce" is known slang for "going to leave." Admitting Agent Vail's interpretation of these and other terms served only to give "expert gloss" to the government's narration of the text-message exchange, according to the defendants.
Courts may properly admit a case agent's expert testimony to help juries interpret the "key words" or "code words" used by individuals or groups that the agent investigates.
See, e.g.
,
Parkhurst
,
In this case, the experienced district judge made a specific finding in explaining that the jury before her may not have known or understood the slang terms Jett and McKissick used. "[L]ooking at [the] jury," she concluded, "they may not know" and "may not understand" what the terms meant. District judges are best positioned to make assessments like that, and so we cannot say it was an abuse of discretion to conclude that expert interpretation of the terms was helpful and the appropriate subject of expert opinion. Further, in eliciting this expert opinion, the government laid adequate foundation.
See
Christian
,
*267
Even if the district judge abused her discretion in admitting this limited expert testimony, it was harmless error. "The test for harmless error is whether, in the mind of the average juror, the prosecution's case would have been significantly less persuasive had the improper evidence been excluded."
United States v. Stewart
,
What is more, Agent Vail's testimony was limited and defense counsel had the opportunity to cross-examine him on his qualifications to opine on slang terms (though they chose not to), a fact the district judge made clear in admitting his testimony. Still more, the defendants have identified nothing wrong, misleading, or disputable in Agent Vail's testimony. In fact, he interpreted the slang terms-"whip" as "automobile," for example-in the same way the defendants suggest they are commonly understood. We therefore find no reversible error in the admission of Agent Vail's testimony as expert opinion.
2. Admissibility as Dual-Role Testimony
The defendants make a related argument about Agent Vail's testimony. Even if Agent Vail's testimony was proper under Rule 702, they argue, it was improperly intertwined with his lay testimony.
We have allowed the practice of permitting case agents to testify as both fact and expert witnesses.
See
Parkhurst
,
Agent Vail's testimony never made clear whether his interpretation of the text messages was based on his expert opinion, personal knowledge, or both. Agent Vail took the stand twice at trial. The first time, he testified only about lay matters within his personal knowledge as case agent: his DNA swabbing of the defendants and the recordings of McKissick. The second time, he began again with lay testimony regarding fingerprinting, his analysis of one of the switch cars, observations of the defendants during his surveillance, and items recovered after the car chase. The government then began to elicit Agent Vail's expert testimony regarding *268 the text messages without any sign that he was going to offer expert opinions.
After the government attempted to qualify Agent Vail to interpret those messages, it asked whether he "had knowledge of what occurred on December 12, 2015," to which Agent Vail responded "Yes." The government then asked, "And so you can give context to these messages; is that correct," to which Agent Vail responded, "That's correct." The testimony thus could have led an objective viewer to think Agent Vail's personal knowledge of the December 12 events formed the basis for his interpretation of the text-messages, not any professional expertise.
The water got muddier when defense counsel objected again to the dual-role testimony.
[DEFENSE COUNSEL]: So is he saying he knows these terms from being an expert in the area or because he's the case agent?
THE COURT: Well, let's find out. Would you inquire?
Q: Are you giving your knowledge because you're an expert or your-based on your knowledge as the case agent?
A: Based on my knowledge as the case agent .
[DEFENSE COUNSEL]: That's why he can't give those interpretations.
THE COURT: Well, you have also said he-this was his area of expertise; is that correct?
Q: Would you also say that-you do violent crimes for a living, is that correct, you investigate them?
A: It is correct that I am an FBI agent and I investigate violent crimes, yes.
This suggested that Agent Vail would explain the text messages in his personal, not expert, capacity. When questioning resumed after a sidebar, the government elicited no clarification.
District judges must take precautions to avoid admitting this sort of confusing dual-role testimony.
E.g.
,
Parkhurst
,
The jury instructions provided no clarity either. The jury received two forms of Pattern Criminal Jury Instruction 3.13, which accurately tells the jurors that they do not have to accept a witness's opinion testimony and that they should evaluate such testimony based on the witness's qualifications, methodology, and other factors. There are two problems with the application of that instruction to Agent Vail's dual-role testimony: First, neither form indicated that Agent Vail offered opinion testimony.
Cf.
Parkhurst
,
With that said, we recognize a shortcoming in our caselaw. We have been clear that some general precautions are needed to limit the risks of dual-role testimony. But we have been unclear on specifics. Our caselaw, for one, has not expressly addressed what a proper dual-role instruction should look like. More importantly, it has been inconsistent about how district judges should structure dual-role testimony and distinguish the differences for the jury.
See
The jury needs to know when an agent is testifying as an expert and when he is testifying as a fact witness.... To take the necessary precautions, the court can give an appropriate cautionary instruction and require examination of the witness in such a way as to make clear when the witness is testifying to fact and when he is offering his opinion as an expert.
Telling the jury that a witness is both a lay witness and an expert witness and will be alternating between the two roles is potentially confusing-and unnecessary. The lawyer examining the witness need only ask him the basis for his answer to a question, and the witness will then explain whether it was his investigation ... or his general experience.... That tells the jury what it needs to know in order to determine how much weight to give the testimony and tells opposing counsel what he needs to know in order to be able to cross-examine the witness effectively. Using terms like "lay witness" and "expert witness" and trying to explain to the jury the difference between the two types of witness is inessential and, it seems to us, ill advised.
This case offers an opportunity to clarify.
3
When a district judge learns that the government intends to put on dual-role testimony from a case agent, it should first encourage the government to present the expert and lay testimony separately. "Seamlessly switching back-and-forth between expert and fact testimony does little to stem the risks associated with dual-role witnesses."
United States v. Jones
,
When the expert portion of the case agent's testimony begins, the district judge should allow the government to lay its foundation and establish the agent's qualifications. After it does, the district judge should instruct the jury that the testimony it is about to hear is the witness's
*270
opinion based on training and experience, not firsthand knowledge, and that it is for the jury to determine how much weight, if any, to give that opinion.
See
Christian
,
That leaves the appropriate jury instruction. Parkhurst accepted a version of Pattern Instruction 3.13 (one that identified the agent as offering opinion testimony) as a precautionary measure for dual-role testimony. A different instruction, though, is more helpful. In Garrett , we approved the following instruction aimed at curbing the risks of dual-role testimony:
You have heard the testimony of [an agent], who testified to both facts and opinions. Each of these types of testimony should be given the proper weight.
As to the testimony to facts, consider the factors discussed earlier in these instructions ... As to the testimony on opinions, you do not have to accept [the agent's] opinion. In deciding how much weight to give it, you should consider the witness's qualifications and how he reached his conclusions along with the other factors discussed in these instructions for weighing the credibility of witnesses.
The procedures for properly admitting dual-role testimony were not followed in this case.
See
United States v. Parra
,
D. Agent Guy's Testimony
The defendants (led by Jett) also contend that Agent Guy's identification of Jett as one of the robbers requires a new trial. We review the district judge's decision to admit evidence for an abuse of discretion.
United States v. Quiroz
,
The district judge permitted Agent Guy's identification on two grounds:
*271
the open-door doctrine and Rule 701. Under the open-door doctrine, when a party puts an issue into evidence it must accept its opponent's commensurate response.
Estate of Escobedo v. Martin
,
The admission of Agent Guy's identification was an aggressive application of both the open-door doctrine and Rule 701. Taking the open-door doctrine first, defense counsel's cross-examination of Agent Guy entailed the following:
Q: Is it fair to say, Agent-Special Agent Guy, that throughout your involvement in the investigation, and your knowledge of the investigation from September 19th, 2015, the date of the robbery of the Wesleyan Road credit union, up until the end of the investigation you've discovered no person who can identify my client, Duprece Jett, as having robbed them, correct?
A: Could you restate the question?
Q: Yes. You've uncovered no person who can specifically identify Durprece Jett as being one of the robbers?
A: Well, I disagree with you.
Q: Okay. Were you involved in the photo spreads that were shown to witnesses from the bank?
A: No.
The restated question, like the earlier question, plainly sought to bring out that the government had not identified an
eyewitness
who could identify either Jett or McKissick as the robbers. To interpret the question to include
agents
is inconsistent with its context and a reasonable understanding of the word "uncovered" (for agents "uncover" evidence and witnesses, not themselves). Defense counsel may have asked an inarticulate question or even a "bad" one, as the district judge put it. But it was not so bad as to effectively put into issue whether a case agent thought that Jett was the man on camera. Even if the agent's interpretation was an innocent misunderstanding, allowing his response to let in the government's own identification of Jett as the robber was neither proportional nor fair.
5
See
Amaya
,
We doubt that Rule 701 provided any more stable ground for admitting Agent Guy's identification of Jett. The government represented that Agent Guy's observations while executing the search warrant would be helpful to the jury because Jett had "lost a little bit of weight" since then. On the stand, Agent Guy testified:
Q: Okay. And after those personal observations, does Mr. Jett look exactly *272 today like he did back then, or has anything changed?
A: He looks a little thinner. Otherwise-his facial hair is a little different. He still has his mustache; and his facial hair; where it grows out, is the same. If he stood up, I would see his body type. He was a little heavier, I think.
Agent Guy testified further that he was at the execution of the search warrant for "[n]ot long." He did not otherwise detail the length or manner of his interaction with Jett.
This is not the sort of familiarity with a defendant that we have generally thought helpful to a jury under Rule 701.
See
United States v. Stormer
,
Regardless of whether the district judge's admission of the identification was an abuse of discretion, however, we again find harmless error. The jurors observed the surveillance footage on their own. They received the proper instruction regarding the weight they should give to testimony, and defense counsel's cross-examination of Agent Guy made clear that his identification was only his opinion. Our conclusion from
Jackson
is apt: "The jury was free to believe or disregard [the witness's] testimony; the issue of whether the defendant was the same person as the bank robber was left to the jury for its ultimate determination."
Jackson
,
This conclusion is unaltered by the fact that the government referenced Agent Guy's identification in its closing arguments. Those comments certainly did not rise to prosecutorial misconduct, which we would review for plain error since Jett did not object to them below. The comments were not "improper" in light of the district judge's ruling on the evidence and, harmless as that ruling was, the comments did not deprive Jett (or any defendant) of a fair trial.
United States v. Flournoy
,
Nor was there cumulative error. The evidence we have identified as sufficiently and persuasively incriminating-the footage, the cell-phone data, the DNA-would be admitted even if each of the defendants' arguments were correct.
E. Remaining Arguments Unique to Walker
The remaining issues on appeal are unique to Walker. He asserts that there was insufficient evidence to convict him for *273 conspiracy, that the district judge violated Bruton by admitting the recording of McKissick at the stationhouse, and that the district judge erred in denying his motion for severance.
1. Sufficiency of the Evidence on the Hobbs Act Conspiracy Count
Walker contends the "fate" of the attempted robbery count "dooms" the Hobbs Act conspiracy count. We overturn a jury verdict only if, after viewing the facts in the light most favorable to the government, there was insufficient evidence to convict.
United States v. Wrobel
,
A conviction for a Hobbs Act conspiracy requires proof beyond a reasonable doubt that the conspiracy existed and that the defendant joined it with the intent to advance its objectives.
See
Corson
,
The government presented sufficient evidence to convict Walker of conspiracy. He was caught with a coconspirator circling a cash-and-check store (the conspiracy's preferred target), in a stolen car (the conspiracy's modus operandi), with a duffle bag and ski mask in the car (the conspiracy's tools). When law enforcement attempted to pull Walker over, he evidenced guilt by leading them on a high-speed and dangerous chase.
See, e.g.
,
United States v. Stevenson
,
The real rub of Walker's argument is that the reversal of his Count 2 conviction requires reversal of his Count 1 conviction. He presses that without the attempted robbery conviction the conspiracy conviction is "gutted." That argument reflects a misunderstanding of what is required to prove an inchoate offense. Conspiracy is an inchoate offense, "the essence of which is an agreement to commit an unlawful act."
Iannelli v. United States
,
The two cases upon which Walker relies are inapposite. In the first,
United States v. Buffington
,
2. Bruton Challenge
Walker also argues that the scrubbed video recording of McKissick's statements at the stationhouse violated his Sixth Amendment right to confrontation under Bruton . The recording showed (with redactions crossed out) McKissick saying:
Hey Earl! Earl!Nothing ... joyriding ... fleeing.
Hey Earl! Hey Bro
They jumped the gun. I say they jumped the gun. We ain't do shit. They didn't give us a chance.So-hey-uhh.
The district judge admitted this recording as a statement by a party opponent (McKissick) pursuant to Rule 801(d)(2)(A).
6
At trial, Agent Guy explained that McKissick made these statements sitting alone in an interrogation room. We review
de novo
a court's application of
Bruton
.
United States v. Javell
,
In
Bruton
, the government introduced at trial the confession of a codefendant which expressly implicated the defendant in a crime.
Bruton
,
The Court later refined
Bruton
's reach in
Richardson v. Marsh
,
Following
Bruton
,
Richardson
, and
Gray
, we have concluded that a defendant's "redacted confession may be admitted as long as the redaction does not obviously refer to the codefendants."
United States v. Hernandez
,
Walker does not have a valid
Bruton
claim. The scrubbed video recording did not obviously refer to Walker. It shows McKissick sitting alone in a room surrounded by cement walls. The jury received the proper limiting instruction, stating that it could not consider the statement of McKissick as evidence against Walker or Jett. There is therefore no
Bruton
problem.
See
Mansoori
,
In any event, the Supreme Court has drawn a distinction between statements that are "facially incriminating" and those that are "inferential[ly] incriminat[ing]."
Gray
,
3. Motion to Sever
Finally, Walker protests the district judge's denial of his motion to sever, which he renewed at the close of evidence. District judges have "wide discretion in determining when the prejudice of joinder outweighs the benefits of a single trial."
United States v. Carrillo
,
Rule 14(a) permits a court to sever codefendants' trials when "consolidation for trial appears to prejudice a defendant or the government." Fed. R. Crim. P. 14(a). In moving under Rule 14(a), a defendant must show a "serious risk" that a joint trial will "compromise a specific trial right" or "prevent the jury from making a reliable judgment about guilt or innocence."
*276
Zafiro v. United States
,
Walker cannot overcome this preference. While he complains of the "inflammatory evidence" about Jett and McKissick's robberies, which occurred before he joined the conspiracy, that evidence would likely have been admissible against him anyway.
See, e.g.
,
United States v. Arrellano
,
III. Conclusion
For these reasons, we REVERSE and REMAND with instructions that the district court enter a judgment of acquittal for each defendant with respect to Count 2 and resentence each defendant accordingly. We otherwise AFFIRM the district court's judgment.
The district judge appears to have changed this rule. It now states "the Court will designate and declare whether a witness is an expert." We commend this change, for reasons we explain below.
See also
United States v. Tingle
,
Before issuing this opinion, we circulated it to the full court under Circuit Rule 40(e). No judge in active service requested to hear the case en banc .
For this matter also, we circulated this opinion to the full court under Circuit Rule 40(e) before issuing it. No judge in active service requested to hear the case en banc .
We encourage the Committee on Pattern Criminal Jury Instructions of the Seventh Circuit to consider adding a pattern instruction to this effect. We also encourage the Committee to consider Judge Easterbrook's proposal from Parkhurst that an agent's "special knowledge about [expert subject] does not make his testimony about [lay subject] more reliable than that of any other witness." 865 F.3d at 525. This suggestion rightly attempts to mitigate the long-recognized risk that a jury could afford undue weight to an agent's testimony because he expresses expert opinions.
We appreciate the district judge's decision to limit Agent Guy's testimony to his own identification and not those of his colleagues. We nevertheless reject that defense counsel opened the door in the first place.
The district judge correctly rejected the government's argument that McKissick made these statements in furtherance of the conspiracy. See Fed. R. Evid. 801(d)(2)(E).
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Duprece JETT, Earl Walker, and Damion McKissick, Defendants-Appellants.
- Cited By
- 82 cases
- Status
- Published