USA. v. Mcgee

• Decision Date: 13 October 1999
• Docket Number: No. 98-3063,98-3063
• Parties: (7th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN E. MCGEE, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 626

189 F.3d 626 (7th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN E. MCGEE, Defendant-Appellant.

No. 98-3063

United States Court of Appeals, Seventh Circuit

Argued April 7, 1999

Decided September 1, 1999

Rehearing Denied October 13, 1999

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98 CR 16--Rudolph T. Randa, Judge.

Before FLAUM, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

A jury found John Earl McGee guilty of one count of bank robbery in violation of 18 U.S.C. sec.sec. 2113(a) and 2. Mr. McGee appeals the judgment of conviction. He claims that the evidence presented at trial was insufficient to support a conviction; that the government's use of his accomplices' testimony, which was offered pursuant to their plea agreements, violated 18 U.S.C. sec. 201(c)(2); and that the district court erred in admitting under Federal Rule of Evidence 801(d)(2)(A) his statement to the police. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

On January 27, 1998, a grand jury indicted John McGee on two counts of bank robbery. The first count charged Mr. McGee with robbing the North Shore Bank in Milwaukee, Wisconsin, on July 5, 1997; Count 2 charged him with robbing the Mutual Savings Bank in Milwaukee on July 28, 1997.¹ At trial, three witnesses who pleaded guilty to the July 5, 1997 robbery of the North Shore Bank testified against Mr. McGee. These three witnesses--Walter Williams ("Mr. Williams"), Natasha Williams ("Mrs. Williams"), and Bridget Womack--had promised, in their plea agreements, to cooperate fully with the government in its investigation and to testify truthfully if asked to testify. In return, the government had agreed to advise the sentencing court of the extent of each defendant's cooperation and to move for downward departure if the defendant provided substantial assistance in the investigation or prosecution of others.

Mr. Williams testified to the following events. On July 5, 1997, Mr. Williams, Mr. McGee and Ms. Womack agreed to rob a bank and left the Williamses' house together in Ms. Womack's car. When they arrived at the North Shore Bank, Mr. McGee went inside to size up the bank while the other two waited in the car. When Mr. McGee returned, he told Ms. Womack to go to a teller named Barbara. Ms. Womack then went inside the bank while Mr. Williams and Mr. McGee waited in the car. When Ms. Womack returned with the money, Mr. Williams drove Ms. Womack and Mr. McGee back to the Williams residence, where they divided the money among the three of them.

Mrs. Williams gave the following testimony. She became friends with Ms. Womack after meeting her at a casino. Ms. Womack told Mrs. Williams that she had previously robbed banks, and Mrs. Williams agreed to assist Ms. Womack in future robberies. On July 5, 1997, Ms. Womack came to the Williams residence and asked Mrs. Williams if she would assist in a robbery, but Mrs. Williams declined because she was afraid. Mr. Williams, Mr. McGee, and Ms. Womack then left the house together. When they returned, Ms. Womack had a purse full of money, which Ms. Womack, Mr. Williams, and Mr. McGee divided among themselves. Mrs. Williams and Ms. Womack then went gambling together.

Ms. Womack testified to the following facts. She met Mrs. Williams while gambling and discussed robbing banks with her. Mrs. Williams eventually agreed to assist Ms. Womack in robbing banks. Through her friendship with Mrs. Williams, Ms. Womack met Mr. Williams. On July 5, 1997, after talking to Mr. Williams the night before about robbing a bank, Ms. Womack went to the Williams residence and picked up Mr. Williams and Mr. McGee, who suggested the North Shore Bank and indicated that he knew a teller there named Barbara. On the way to the bank, they stopped at a Walgreens, where Ms. Womack and Mr. McGee purchased bandanas. When they arrived at the North Shore Bank, Mr. McGee went inside to check things out. When he returned to the car, he described the inside of the bank and told Ms. Womack that Barbara was there. Ms. Womack then went inside, handed a note to the teller named Barbara, received the money, and then left the bank. When she returned to the car, Mr. Williams drove Ms. Womack and Mr. McGee back to the Williams residence, where Mr. McGee divided the money among the three of them. Ms. Womack and Mrs. Williams then went gambling.

The bank teller, Barbara Meservey, testified that, on July 5, 1997, a woman approached her window and handed her a note demanding money and stating that the robber had a gun. Meservey handed over the money, and the woman left the bank. Meservey also testified that she had observed a black male earlier in the day who looked suspicious because he was looking around at the walls and the security cameras.

The prosecution also called Detective Carl Buschmann of the Milwaukee Police Department to testify that he interviewed Mr. McGee on August 20, 1997, concerning the July 5 robbery of North Shore Bank. Detective Buschmann testified that, during the interview, Mr. McGee provided three different versions of the events of July 5, 1997. First, Mr. McGee said that he had taken a bus to the North Shore Bank that day to open an account but left the bank when he was told he would need two forms of identification. After Mr. McGee was informed that co-defendants Natasha Williams and Bridget Womack had provided statements implicating him in the robbery, he admitted that he had lied about taking the bus and decided to change his story.

Mr. McGee then stated that Ms. Womack and Mr. Williams picked him up at his house on the morning of July 5, 1997, to go to an auto parts store. After they left the store, Mr. McGee asked Ms. Womack to stop at the North Shore Bank so he could open a free checking and savings account. Ms. Womack parked at a Blockbuster video store, and Mr. McGee went into the bank. After inquiring about an account, he was told he would need two forms of identification and $75, which he did not have, so he returned to the car. Ms. Womack moved the car to an alley behind the Blockbuster and said she had to run into the Blockbuster to pick up something. Instead of going into the Blockbuster, Ms. Womack went into the North Shore Bank. When she returned, she had money in her hand, and Mr. Williams drove them back to the Williams residence. There, Mr. McGee learned that Ms. Womack had robbed the bank.

Detective Buschmann testified that Mr. McGee then changed his story yet again. This time, Mr. McGee said that, after leaving the auto parts store, he asked Ms. Womack to drop him at the North Shore Bank. He went into the bank, and Ms. Womack and Mr. Williams drove away. Mr. McGee took the bus home. Later that evening, he talked to Mr. Williams on the phone, at which time he learned that Ms. Womack had robbed a bank. Mr. Williams did not indicate what bank, and Mr. McGee did not ask.

Detective Buschmann testified that Mr. McGee denied any involvement in the robbery and denied having any knowledge of the robbery.² Detective Buschmann further testified that, in accordance with police procedure, at the conclusion of the interview he prepared a written version of Mr. McGee's statement. He read the statement to Mr. McGee and gave him the opportunity to make any additions or corrections. He then asked Mr. McGee to write that the statement was true and correct and to sign the statement. Mr. McGee asked Detective Buschmann to write "I have read and have [had] read to me the above statement and some of it is true." Mr. McGee then signed the statement.

Mr. McGee's brother and his mother both testified that Mr. McGee attended a barbeque at the family's home on July 5, 1997, and that he never left home that entire day.

B. Proceedings in the District Court

Prior to trial, Mr. McGee filed a motion in limine requesting exclusion of his August 20, 1997 statement to Detective Buschmann. He argued that his statement was inadmissible hearsay that did not qualify as an admission by a party- opponent because it was not inculpatory. Without deciding whether admissions by a party-opponent must be inculpatory, the district court denied the motion, holding that Mr. McGee's statement was inculpatory, or could be argued to be inculpatory, because it contained inconsistent versions of what happened on the day of the robbery.

After a three-day trial, a jury found Mr. McGee guilty of robbing the North Shore Bank on July 5, 1997 (Count 1), and found him not guilty of robbing the Mutual Savings Bank on July 28, 1997 (Count 2). Mr. McGee subsequently filed two motions for acquittal notwithstanding the verdict. In the first motion, he argued that the evidence at trial was insufficient to support the conviction because the witnesses were unbelievable. In the second, he argued that his co-conspirators' testimony was procured in violation of 18 U.S.C. sec. 201(c)(2). The district court denied both motions, holding that witness credibility is uniquely a jury question and that the case relied on by Mr. McGee in his sec. 201(c)(2) argument is not the law in the Seventh Circuit. The court then imposed a sentence of 63 months in prison, 3 years of supervised release, $2,332 in restitution, and a $100 assessment.

II DISCUSSION

A. Sufficiency of the Evidence

Mr. McGee appeals the denial of his motion for a judgment of acquittal on the ground that the evidence presented at trial was insufficient to support a conviction. In challenging the sufficiency of the evidence, Mr. McGee "faces a nearly insurmountable hurdle . . . [in that] we consider the evidence in the light most favorable to the Government, defer to the credibility determination of the jury, and overturn a verdict only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." United States v. Szarwark, 168 F.3d...