United States v. Brewer

• Decision Date: 04 February 2019
• Docket Number: No. 18-2035,18-2035
• Citation: 915 F.3d 408
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Artez BREWER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

915 F.3d 408

UNITED STATES of America, Plaintiff-Appellee,
v.
Artez BREWER, Defendant-Appellant.

No. 18-2035

United States Court of Appeals, Seventh Circuit.

Argued November 5, 2018
Decided February 4, 2019

David E. Hollar, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Hammond, IN, for Plaintiff-Appellee.

Kerry Clementine Connor, Attorney, Highland, IN, for Defendant-Appellant.

Before Bauer, Rovner, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

915 F.3d 411

Artez Brewer and his girlfriend, Robin Pawlak, traveled the country robbing banks, à la Bonnie and Clyde. Agents today, however, have investigative tools that their Great Depression predecessors lacked. With a warrant for real-time, Global-Positioning-System (GPS) vehicle monitoring, a task force tracked Brewer's car to California where he and Pawlak committed another robbery. Brewer was arrested and essentially confessed to the crime spree. The government charged him with three counts of bank robbery, 18 U.S.C. § 2113(a), and a jury convicted him on each count.

Brewer appeals. He argues that the government violated the Fourth Amendment by tracking him to California when the warrant only permitted monitoring in Indiana. But the in-state limitation did not reflect a probable-cause finding or a particularity requirement, and the Fourth Amendment is unconcerned with state borders. Brewer also argues that the district court abused its discretion in admitting evidence of unindicted robberies. Yet that other-act evidence was directly probative of Brewer's identity, modus operandi, and intent, and it therefore fell within the bounds of Federal Rule of Evidence 404(b)(2). We affirm.

I. Background

Five bank robberies, committed in three states over the course of about six weeks, led to Artez Brewer's arrest and prosecution.

The first robbery happened on April 28, 2016. The day before, a young man entered Centier Bank in Griffith, Indiana, and made an odd request: he asked for change in two-dollar bills. The next day, a woman walked into the bank wearing a jogging suit, gloves, and a mask while carrying a yard-long wooden stick, a black bag, and a note. She put the stick in between the bank's entrance doors, approached the teller counter, and held up the note, which read, "All money in drawer, no bait." She received $162, exited the bank, and ran into the alley. Security footage showed a dark Chevrolet Impala fleeing the scene.

The day after the first robbery, on April 29, 2016, a young man walked into State Bank & Trust in Perrysburg, Ohio. He lingered, waited in line for a couple of minutes, pulled out his cell phone, and left without being assisted. The man was then seen loitering across the street from the bank. After relieving himself on a nearby garbage bin, the man got back into his car—a black sedan—where he sat facing the bank. A bit later, a woman entered the bank dressed head to toe in dark clothing, carrying a stick, a black bag, and a note. The woman dropped the stick at the bank's entrance doors, approached the teller counter, and handed up a note demanding cash. She left with over $1,000.

On the morning of May 6, 2016, a young man entered the MainSource Bank in Crown Point, Indiana. He approached the teller and made a request she thought odd: change in two-dollar bills. That afternoon, a beige Toyota sedan pulled up near the bank. A woman got out, wearing all black and carrying a long stick, a purple and black bag, and a note. She put the stick at the front doors, reached the teller desk, and held up a note demanding money. She received all the money in the teller's top drawer, about $1,700. She fled, got back into the Toyota, and took off.

About three weeks later, in the late afternoon of May 26, 2016, a young man walked into Horizon Bank in Whiting, Indiana. He approached the teller desk

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and requested change in one-dollar gold coins, which the teller found unusual. The next morning, on May 27, a Toyota Corolla pulled up to an auto-shop lot next to the bank. A woman dressed in dark clothing entered the bank, carrying a bag and a note. Without saying a word, she approached the teller desk and held up the note demanding money. She made off with a little more than $6,000 before jumping into the Toyota. The robber left behind a stick wedged between the doors.

These (and other) heists drew the attention of an FBI task force, which pinned Brewer as the young man present at the banks just before the robberies. It conducted surveillance and gathered that Brewer lived with a woman, Robin Pawlak, in Gary, Indiana. Officers observed a Toyota matching the one from the robberies parked outside their residence, and they later discovered that Brewer sometimes drove another car—a silver Volvo. A task-force officer sought a warrant from a state-court magistrate to monitor the Volvo with GPS tracking. The officer's supporting affidavit referenced eleven bank robberies, in Indiana, Illinois, and Ohio. The magistrate issued the warrant, which permitted the use of a "tracking device ... in any public or private area in any jurisdiction, within the State of Indiana , for a period of 45 days." The in-state limitation was, apparently, an anomaly. The task force had obtained multiple GPS vehicle-monitoring warrants during the investigation from the same magistrate, none of which included the limitation.

The task force quickly installed the GPS tracker, consistent with the warrant's terms. A few days later, on June 7, 2016, a task-force officer noticed that the Volvo was on the move heading west. He monitored the car as it left Indiana and traveled through Illinois and continued westward until it arrived in Los Angeles, California. The officer was unaware that the warrant limited the monitoring to Indiana, and he failed to consult it while tracking the car. Once in L.A., the officer noticed that the Volvo was circling a bank.

The officer called the FBI's bank-robbery coordinator in L.A. to give him the heads-up about Brewer's presence near Banner Bank. On the morning of June 10, 2016, officers observed Brewer and Pawlak in the Volvo near the bank. Brewer got out of the car, walked around the bank for about thirty minutes, occasionally staring through its large windows. That afternoon, the Volvo again approached the bank. A woman got out of the car, dressed in black and carrying a stick. She dropped the stick at the door, approached the tellers, and held up a note, which read, "ALL the money No cops No DYE OR your dead." She received about $1,000 in cash, and then ran out of the bank and into the Volvo. Officers stopped the car, arrested Brewer and Pawlak, and found a bag of cash.

Agents questioned Brewer at the stationhouse. They told him that he was seen at Horizon Bank in Indiana just before it was robbed, but Brewer claimed to be a coin collector. When an agent pressed, however, and asked whether anyone else was involved in the robberies, Brewer said:

I tell you what, I can tell you, I told you about this shit, I didn't come up with it by my damn self, I can tell you that shit right now but like, ya know. I was not uh—I was not uh—It was like a spur of the moment shit like fuck ya know....

Agents later searched Brewer's residence. They found car titles to an Impala and a Corolla. They also found clothes matching those worn by the young man who had been present before many of the robberies.

A grand jury returned an indictment against Brewer charging him with three counts of bank robbery,

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18 U.S.C. § 2113(a), for each of the three Indiana robberies. After Brewer lost a motion to suppress regarding, in part, the tracking of his Volvo outside of Indiana, he went to trial. At trial, and over Brewer's objection, the government presented evidence of the Ohio and California robberies pursuant to Rule 404(b). Eyewitness testimony identified Brewer as the young man present before many of the robberies, and surveillance footage showed the same. The government also presented a recording of Brewer's post-arrest statements.

The jury convicted Brewer on all three counts, and the district court sentenced him to 137 months in prison. He had already been convicted in the Central District of California for the L.A. robbery, and sentenced to 125 months in prison for that crime. The net effect of the district court's sentence below was therefore an additional twelve months in custody. Brewer appealed.

II. Discussion

Brewer offers three reasons for a new trial: (1) the district court should have excluded certain evidence under the Fourth Amendment; (2) the district court erred in admitting evidence of the unindicted robberies under Rule 404(b) ; and (3) the government used surveillance-footage evidence that had questionable authenticity under Rule 901. We address these points in turn and conclude that none merits reversal.

A. The Fourth Amendment and the Tracking Warrant

GPS vehicle monitoring generally requires a warrant, United States v. Jones , 565 U.S. 400, 404, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), and the government obtained one here. Brewer argues that by not abiding by the in-state limitation set...