U.S. v. Blackburn

• Decision Date: 22 April 1993
• Docket Number: No. 92-1916,92-1916
• Citation: 992 F.2d 666
• Parties: 36 Fed. R. Evid. Serv. 1328 UNITED STATES of America, Plaintiff-Appellee, v. Charles W. BLACKBURN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 666

992 F.2d 666

36 Fed. R. Evid. Serv. 1328

UNITED STATES of America, Plaintiff-Appellee, v. Charles W. BLACKBURN, Defendant-Appellant.

No. 92-1916.

United States Court of Appeals Seventh Circuit.

Argued Nov. 12, 1992.

Decided April 22, 1993.

Scott C. Newman, Asst. U.S. Atty., Jill Plancher (argued), Indianapolis, IN, for plaintiff-appellee.

James McNew, Dawn E. Wellman (argued), Mary G. Willis, Greenfield, IN, for defendant-appellant.

Before FLAUM and EASTERBROOK, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

FLAUM, Circuit Judge.

A lone gunman robbed the Fifth Third Bank in Indianapolis on the morning of January 28, 1991. Holding a handkerchief over part of his nose and mouth, the robber pointed a long-barreled, dull-finish revolver at one of the tellers and demanded that she place all of the money at her teller station into a bag. She did not have enough. The robber spotted the bank's office manager, directed him over to the teller line, and ordered him to continue filling the bag from another station. Eventually, the cash from an automatic teller machine in the rear of the bank was also emptied into his sack. The robber then prepared his getaway. Taking the manager out to the parking lot, the robber told him to start his car and climb into the passenger seat. They drove a short distance, and the robber ordered him out of the car. The car was later recovered a short distance away.

Seven weeks later, a similar robbery occurred at the Shelby Federal Savings Bank in Indianapolis. A gunman entered the bank and walked toward one of the tellers, placing a handkerchief over his nose and mouth when he arrived at the window. He pointed a long-barreled revolver at the teller and ordered her to get a bag and fill it with money. This time, the branch manager arrived with a trashcan liner and began stuffing cash inside. When the teller stations ran out, the robber sent her to the vault to get more. The branch manager had recently bagged fifteen hundred dollars in one-dollar bills, and she dropped these bills into his bag. The robber then approached an elderly bank customer, Homer A. Doriot, put the bag in his hands, and led him out to the parking lot. Outside, the robber took Doriot's keys, put him in the passenger seat, and drove some distance before ordering Doriot out. The car was found the same day and returned to its owner.

While driving home on the afternoon of the robbery, Homer Doriot noticed a pair of eyeglasses that he did not recognize on the front seat of his car. Doriot contacted the bank manager, who notified the FBI. The next day, Special Agent Roth of the FBI retrieved the glasses from Doriot's car. That started an impressive performance of high-tech sleuthing. Roth delivered the glasses to Edward H. Schmidt & Sons, an Indianapolis company in the business of manufacturing custom eyeglasses. Mark Schmidt, its president, had the eyeglasses electronically "neutralized," or analyzed, by a machine that reads each lens's prescription by means of refracted light. Schmidt also determined that the glasses had "Geoffrey Beene" designer frames, roughly eight months to a year old. Armed with this information, Roth went looking for a retailer that sold Geoffrey Beene eyeglasses. He contacted City Optical Company, a corporation that operates "Dr. Tavel Premium Optical" and "Dr. Tavel Vision Value" eyeglasses chains in Indianapolis. Their records turned up a total of seventeen sales of the particular type of frames found in Doriot's car, only one of which matched the prescription Schmidt & Sons analyzed. The name of its purchaser was Charles William Blackburn. Within a few days of the second robbery, almost as if he wanted to confirm the FBI's theory, Blackburn himself walked into a Tavel retail outlet, looking for a replacement pair of eyeglasses.

On the day of the second robbery, Blackburn visited Crickett Yevone Robertson, an exotic dancer, at the bar where she worked. Robertson testified that "Bill" Blackburn knew her from his regular visits to the establishment. Blackburn said that he wanted to take her shopping for her birthday, but they ended up rescheduling their date for later in the week. Three days later, Blackburn handed Crickett Robertson the keys to his car and said that he had a present for her. Inside the car, she found one-dollar bills strewn all over the front seat and floor. She gathered between fifty and one hundred bills, stuffed them in her shirt, and kept the money as a birthday present.

A jury convicted Blackburn of two counts of bank robbery and two counts of use of a firearm during the commission of a crime of violence. The evidence against Blackburn was substantial. In addition to the eyeglasses match, all three bank tellers who confronted the robber identified Blackburn as the man behind the long-barreled gun. A search of Blackburn's residence turned up a worn, western-style revolver, thirty-one one-dollar bills in the pocket of a coat, and tan overalls and a gray hooded sweatshirt similar to clothing worn by the bank robber. The government also presented Crickett Robertson's testimony about her unusual gift from Blackburn. Blackburn received a heavy sentence, as violators of the firearms statute (especially those convicted on multiple counts) usually do. The district court sentenced him to concurrent terms of 125 months' imprisonment for the bank robbery counts, and to five-year and twenty-year consecutive terms for the firearms counts. He was also ordered to pay full restitution of $29,574.00 to the two banks that he robbed.

Blackburn raises three objections to his conviction. He argues first that the district court erred by refusing to define the concept of reasonable doubt to the jury, even after the jury asked the judge for a definition during their deliberations. Blackburn concedes that we have instructed district courts not to define reasonable doubt, but he maintains that the totality of the circumstances in this case--in particular, the use of "questionable" eyewitness identification and of circumstantial evidence to prove his guilt--made a supplemental instruction necessary to avoid jury confusion. According to Blackburn, the district court's refusal to define reasonable doubt amounted not merely to an abuse of its discretion, but to a full-blown violation of his Due Process rights under the Fifth Amendment. He contends that the jury must have been unclear about the meaning of reasonable doubt, or else it would not have asked for additional explanation; and if it did not understand the standard it was to apply, then it may have unfairly convicted him.

Blackburn's argument fails. We have reiterated time and again our admonition that district courts should not attempt to define reasonable doubt. See, e.g., United States v. Bardsley, 884 F.2d 1024, 1029 (7th Cir.1989); United States v. Hall, 854 F.2d 1036, 1038-39 (7th Cir.1988); United States v. Glass, 846 F.2d 386, 387 (7th Cir.1988); United States v. Martin-Trigona, 684 F.2d 485, 493 (7th Cir.1982); United States v. Regilio, 669 F.2d 1169, 1178 (7th Cir.1981), cert. denied, 457 U.S. 1133, 102 S.Ct. 2959, 73 L.Ed.2d 1350 (1982); United States v. Shaffner, 524 F.2d 1021, 1023 (7th Cir.1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1126, 47 L.Ed.2d 327 (1976); United States v. Lawson, 507 F.2d 433, 442 (7th Cir.1974), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975). The pattern jury instructions of this circuit themselves state that "[t]he phrase 'reasonable doubt' is self-explanatory and is its own best definition. Further elaboration 'tends to misleading refinements' which weaken and make imprecise the existing phrase." 1 Federal Criminal Jury Instructions of the Seventh Circuit § 2.07 (1980) (citation omitted). Nothing about Blackburn's case or the way the government proved it made it improper for the district court to decide that "reasonable doubt" must speak for itself.

We have dealt before with a situation in which a jury specifically requested a definition of reasonable doubt. In United States v. Glass, 846 F.2d 386, 387 (7th Cir.1988), the jury asked that reasonable doubt be defined, the district court refused, and we upheld its refusal largely on the grounds stated above. Blackburn points out that Judge Posner, in a concurrence to another case, questioned whether we should condemn so absolutely all attempts to define the term. See United States v. Hall, 854 F.2d 1036, 1043 (7th Cir.1988) (Posner, J., concurring). Perhaps, Judge Posner suggested, there are cases in which a carefully-worded instruction--say, one modeled after the Federal Judicial Center's Pattern Criminal Jury Instructions--could provide useful guidance to a jury in its deliberations. In those cases, he opined, a judge should be allowed to give it. While this view has some appeal, it is not the law of this circuit. We still frown on definitions of reasonable doubt, given their likelihood to confuse juries more than the simple words themselves. But even if there were situations in which a district court's decision to explain reasonable doubt was justified, the choice not to define it, as occurred here, would not be in error.

Blackburn next contends that the district court abused its discretion by allowing the government to introduce Crickett Robertson's testimony that Blackburn gave her approximately one hundred one-dollar bills. He complains that portions of her testimony--especially a statement that Blackburn frequented the bar where she worked--were unfairly prejudicial because they invited the jury to impugn his character. Blackburn insists that this evidence was irrelevant to the question of whether he committed the bank robberies with which he was charged.

These arguments are also unconvincing. We review evidentiary rulings on matters of relevance under a deferential standard. See United States v. Hoffman, 806 F.2d 703, 708 (7th Cir.1986), cert. denied, 481 U.S. 1005, 107 S.Ct. 1627, 95 L.Ed.2d 201 (1987...