698 F.3d 374 (7th Cir. 2012), 11-1002, United States v. Williams

Docket Nº:11-1002, 11-1012.
Citation:698 F.3d 374
Opinion Judge:POSNER, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Corvet T. WILLIAMS and Brian D. Austin, Defendants-Appellants.
Attorney:Joseph C. Pedersen (argued), Attorney, Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee in No. 11-1002 and 11-1012. Joshua T. Buchman, Peter Senechalle (argued), Attorneys, McDermott, Will & Emery, Chicago, IL, for Defendant-Appellant in No. 11-1002. Michael Bernard Nash...
Judge Panel:Before POSNER, ROVNER, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge, concurring in part and dissenting in part.
Case Date:September 11, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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698 F.3d 374 (7th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,


Corvet T. WILLIAMS and Brian D. Austin, Defendants-Appellants.

Nos. 11-1002, 11-1012.

United States Court of Appeals, Seventh Circuit.

September 11, 2012

Argued April 10, 2012.

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Joseph C. Pedersen (argued), Attorney, Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee in No. 11-1002 and 11-1012.

Joshua T. Buchman, Peter Senechalle (argued), Attorneys, McDermott, Will & Emery, Chicago, IL, for Defendant-Appellant in No. 11-1002.

Michael Bernard Nash (argued), Attorney, Chicago, IL, for Defendant-Appellant in No. 11-1012.

Before POSNER, ROVNER, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge.

Corvet Williams and Brian Austin were tried together for armed bank robbery and use of a firearm in a crime of violence, 18 U.S.C. §§ 2113(a), (d), 924(c)(1)(A), and were convicted by a jury. Their convictions were reversed, 576 F.3d 385 (2009), on a ground unrelated to the present appeals. They were retried, again convicted by a jury, and each sentenced to 684 months in prison. They appeal, challenging both their convictions and their sentences.

There were two robberies, two weeks apart, pretty obviously committed by the same two persons— so similar were the modus operandi of the robbers on the two occasions: two black men, one short and one tall, both brandishing pistols and wearing black gloves plus masks that covered the head completely except for eyes and mouth, with the shorter of the two men jumping over the teller counter to get the money while the taller pointed a silver-colored semi-automatic handgun held in his left hand at bank employees and customers,

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whom he had ordered to lie on the floor. And in each robbery the robbers had driven a stolen vehicle to the bank, left it with its motor running while they robbed the bank, and after the robbery driven away in another stolen vehicle, parked nearby.

Austin challenges his conviction on the ground that the evidence was insufficient to convict him beyond a reasonable doubt. That is the only challenge mounted by his lawyer. We permitted Austin to file a pro se brief complaining about the adequacy of his lawyer's representation of him at the second trial, but that complaint has insufficient merit to warrant our extending this opinion to discuss it.

The principal witness against Austin (as against Williams) was Edward Walker, who testified that he'd been the getaway driver for the second robbery and so knew who the robbers were— and they were, he testified, his old friends Austin and Williams. He also testified that earlier those two had explained to him that they would be using two stolen cars in the robbery and Austin had told him that he had committed a previous robbery with Williams, also using two stolen vehicles. Another witness— Austin's former girlfriend, with whom he'd broken up a couple of months before the robberies— testified that she had recognized him in the surveillance photos of the second robbery despite the mask.

Austin told the police when arrested that he had an ironclad alibi for the second robbery— he had been having a haircut while the bank was being robbed. But testimony by the barber, corroborated by phone records, placed the haircut an hour after the robbery. Another former girlfriend of Austin— his girlfriend at the time of the robberies— testified that Williams and Austin had been together in her apartment the morning of the robbery, before it occurred, and had left together.

Austin denied having participated in either robbery, but also testified that his hair had been cut at noon the day of the second robbery— which was 80 minutes after the robbery— and admitted that he'd been in his girlfriend's apartment with Walker and Williams that morning.

He argues that the girlfriend who claimed to have recognized him in the surveillance photos could not have done so because of the mask, that she had testified against him out of spite, and furthermore that she already knew he was a suspect when she identified him from the photo. And he argues that Walker's testimony should be disbelieved because Walker had been given immunity from prosecution in exchange for his testimony and therefore incurred no cost by implicating himself along with the defendants.

There was no evidence that the ex-girlfriend had testified out of spite— on the contrary, the evidence was that she had testified reluctantly. (No explanation was offered for why they'd broken up.) Although the mask covered Austin's head almost completely, her testimony that she recognized him from the shape of his body and how he moved was not implausible, as she had known him for 18 years. (Had she not known him so well, there might be grave doubts about the reliability of her face-obscured identification. See A. Mike Burton et al., " Face Recognition in Poor-Quality Video: Evidence from Security Surveillance," 10 Psychological Science 243, 245-48 (1999).) The identification was not suggestive, because she was shown just the surveillance photos and was asked only whether she could identify the masked man; she was not told that the police thought it was Austin, and he had not yet been arrested. It's true that the police had searched her apartment the day

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of the second robbery. But her roommate was Williams's girlfriend at the time, and Williams had stayed in the apartment the night before, and we have no reason to think that Austin's ex-girlfriend connected the search with Austin rather than with Williams.

Walker's testimony against the defendants was self-serving, of course, but it was corroborated. The defendants' argument that it was contradicted by neutral witnesses is incorrect; there were some discrepancies in witnesses' testimony as there almost always are, but they were minor.

Austin did not make a wise choice in deciding to testify. He made crucial admissions, which when added to the ex-girlfriend's testimony, Walker's testimony, the testimony of Williams's girlfriend, and the barber's testimony entitled a reasonable jury to conclude that he was guilty beyond a reasonable doubt. And it is the cumulative probability of guilt created by all the evidence, rather than the probability of guilt created by a single piece of evidence, that is the touchstone in deciding whether a reasonable jury could find the defendant guilty beyond a reasonable doubt. United States v. Duarte, 950 F.2d 1255, 1260 (7th Cir.1991); United States v. Carson, 702 F.2d 351, 362 (2d Cir.1983). Suppose the prosecution submits three items of evidence of the defendant's guilt (and the defendant submits no evidence of his innocence), and the probability that item 1 is spurious is 10 percent, the probability that item 2 is spurious is also 10 percent, and likewise item 3. The probability that all three are spurious (assuming that the probabilities are independent— that is, that the probability that one piece of evidence is spurious does not affect the probability that another is), and therefore that the defendant should be acquitted, is only one in a thousand (.1 x .1 x .1). There is an analogy to calculating the risk of dying of some disease. Suppose the probability of finding oneself in a locale where the disease is common is 10 percent, the probability of catching the disease if one is in that locale is also 10 percent, and likewise the probability of dying if one catches it. The probability that one will die from the disease is again only one in a thousand. So the fact that there were infirmities in all the items of evidence against Austin does not indicate that the probability of his guilt fell short of the required threshold, which is proof beyond a reasonable doubt, implying a very high probability of guilt, though there is no agreement on what " very high probability" means in percentage terms in this context.

If the evidence against Austin was adequate, as we have just seen that it was, the evidence against Williams was overwhelming. The police stopped a vehicle a few hours after the second robbery. In it were Williams and his girlfriend. The police found bait bills from the robbed bank in the girlfriend's purse. In addition, Williams was wearing muddy shoes and their tread matched footwear impressions left by one of the bank robbers; also the shoes were stained with a dye that was the color of the jumpsuit worn by the taller of the two robbers— Williams. And he admitted having testified in a previous proceeding to owning a chrome (and thus silver-colored) .25 caliber semi-automatic handgun, and such a gun was seized by police from the apartment of Williams's girlfriend, where he had stayed the night before the robbery. Austin's ex-girlfriend, who remember was the roommate of Williams's girlfriend, identified the gun as Williams's. There was additional evidence of his guilt, such as Walker's testimony.

Williams contends, however, that the government impermissibly bolstered its case by calling his original lawyer as a

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witness. The lawyer testified that Williams had mailed him an envelope marked " legal mail" (so that it would not be opened by the jail) that contained a sealed letter addressed to a cousin of Williams and a note asking the lawyer to forward the letter to Williams's family to give to the cousin. The lawyer was suspicious and read the letter. It instructed the cousin to provide an alibi for Williams by testifying that Williams had been involved in a marijuana deal on the day of the robbery. Realizing that Williams was trying to obstruct justice by asking the cousin to provide him with a false alibi, the lawyer did not forward the letter. Instead, with the...

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