683 F.3d 761 (7th Cir. 2012), 11-2034, United States v. Ford

Docket Nº:11-2034.
Citation:683 F.3d 761
Opinion Judge:POSNER, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John A. FORD, Defendant-Appellant.
Attorney:Carol A. Bell, Attorney, Office of the United States Attorney, Chicago, IL, Brian T. Burgess (argued), Attorney, Department of Justice, Office of the Solicitor General, Washington, DC, for Plaintiff-Appellee. Sarah O'Rourke Schrup (argued), Owen McGovern (argued), Kathleen Riordan (argued), Attor...
Judge Panel:Before POSNER, SYKES, and TINDER, Circuit Judges. TINDER, Circuit Judge, concurs in the result.
Case Date:June 06, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 761

683 F.3d 761 (7th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

John A. FORD, Defendant-Appellant.

No. 11-2034.

United States Court of Appeals, Seventh Circuit.

June 6, 2012

Argued April 25, 2012.

Page 762

Carol A. Bell, Attorney, Office of the United States Attorney, Chicago, IL, Brian T. Burgess (argued), Attorney, Department of Justice, Office of the Solicitor General, Washington, DC, for Plaintiff-Appellee.

Sarah O'Rourke Schrup (argued), Owen McGovern (argued), Kathleen Riordan (argued), Attorneys, Northwestern University School of Law, Chicago, IL, for Defendant-Appellant.

Page 763

Before POSNER, SYKES, and TINDER, Circuit Judges.

TINDER, Circuit Judge, concurs in the result.

POSNER, Circuit Judge.

A jury convicted the defendant of armed bank robbery, 18 U.S.C. § 2113(a), and the judge sentenced him to the statutory maximum of 240 months, id., in part because of his previous convictions for that crime. The appeal presents two issues; we begin with the lesser one, which involves the exclusion of a witness for the defense on the ground that he was an alibi witness and the defense had not given the prosecution the notice required before trial by Fed.R.Crim.P. 12.1(a). The defendant argues that the witness he wanted to call was not an alibi witness and so the rule doesn't apply.

The robbery occurred in Palatine, Illinois. The defendant was a personal trainer in Chicago, and had an appointment for a training session with one of his clients that began two hours after the robbery. The distance from the bank to the gym where the defendant did his personal training is only 28 miles, a distance easily covered by car in a good deal less time than two hours; and the defendant does not claim that extreme weather conditions, or an accident or other untoward event, might have prevented his arriving at the gym within two hours after leaving Palatine— in which event he could not have been the robber. So the client could not have given the defendant an alibi in the usual sense. This should make one wonder why the defendant wanted to call him. He argues that the client would have testified that the defendant was " calm, friendly and professional" at all their training sessions (the client did not recall the particular session that had taken place the evening of the robbery, which occurred almost two years before he was approached by the defendant's lawyer), and that he would not have been calm, etc., had he committed an armed bank robbery only two hours earlier. Actually such testimony would have had no probative value even if the client had remembered the defendant's deportment at the session after the robbery. No one had been hurt in the robbery, which had lasted all of five minutes, and why would one expect the robber, having committed what he thought a successful crime that had enriched him, albeit modestly (his take was only $1146), to be visibly agitated two hours later, far from the scene of the crime and not pursued by police (he was not arrested until two years later)? And he was an experienced bank robber— the presentencing investigation report states that he admitted having committed 11 bank robberies between 1981 and 1985.

In any event it was alibi evidence that the defendant wanted to offer by calling his client as a witness, albeit alibi evidence of an unusual sort. The usual alibi evidence, if believed, proves that it was physically impossible for the defendant to have committed the crime that he's been accused of; suppose the training session had been held in Los Angeles rather than Chicago and there was a record of his having attended it. But the alibi in this case would have been that it was psychologically impossible for him to have committed the crime, because had he done so he would have been visibly agitated two hours later yet the alibi witness would have testified that he was never visibly agitated at their training sessions. This would be the obverse of evidence that the robber had been " nervous" and " jumpy" an hour after the robbery, as in United States v. Turner, 474 F.3d 1265, 1278 (11th Cir.2007). It would have been weak evidence of innocence, as we said— " the fact that [the defendant] was not nervous and that he did not act violently is easily explained, because

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it would not have been in his interest to act in those ways," United States v. Boulanger, 444 F.3d 76, 89 n. 17 (1st Cir.2006)— but still evidence.

Notice to the prosecution of proposed alibi evidence is required because an alibi defense is at once compelling if accepted and easy to concoct, so the prosecution is justified in wanting an opportunity to investigate it in advance of trial. Williams v. Florida, 399 U.S. 78, 81, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970); United States v. Pearson, 159 F.3d 480, 483 (10th Cir.1998). That is true of alibi evidence premised on psychological impossibility as well as the more common type. And so the district judge was right to exclude the evidence because of the defendant's failure to have complied with Rule 12.1(a).

We move to the second and more substantial issue— a challenge to the photo array shown the bank's manager, whom the robber had confronted after forcing an entry into the bank shortly after the bank had closed for the day. When police arrived after the robbery the manager had told them that although the robber had worn a dust mask that covered his nose and mouth, the manager could tell that the robber was a white man with " a very pale complexion" and " light colored eyebrows and freckles around his eyes."

The dust mask was found shortly after the robbery 150 feet from the bank. DNA found on the mask was eventually matched with DNA that...

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