United States v. Daniels, 093015 FED7, 13-2078

Docket Nº:13-2078, 13-2982
Opinion Judge:MANION, CIRCUIT JUDGE.
Party Name:United States of America, Plaintiff-Appellee, v. Terrance Daniels and Dahveed Dean, Defendants-Appellants.
Judge Panel:Before Wood, Chief Judge, and Flaum and Manion, Circuit Judges.
Case Date:September 30, 2015
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Terrance Daniels and Dahveed Dean, Defendants-Appellants.

Nos. 13-2078, 13-2982

United States Court of Appeals, Seventh Circuit

September 30, 2015

Argued December 11, 2014

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 cr 446 - Samuel Der-Yeghiayan, Judge.

Before Wood, Chief Judge, and Flaum and Manion, Circuit Judges.

MANION, CIRCUIT JUDGE.

A jury convicted Dahveed Dean and Terrance Daniels of armed bank robbery and related gun offenses. On appeal, Dean and Daniels challenge the district court's decision to try them jointly, as well as various evidentiary rulings. Additionally, Daniels argues that his constitutional rights were violated when the district court barred him from the courtroom. Finally, they both argue that the district court erred in refusing to question a juror who, hours after voting to convict, contacted the court to change her vote because she had been "bullied." Because none of the issues presented on appeal requires reversal, we affirm.

I.

During 2005, there were several armed bank robberies in the Chicagoland area. It took the government some time to track down the suspects, but in February 2008, a grand jury charged Dahveed Dean, Terrance Daniels, and Albert Jones in a six-count indictment. In Count I, Dean and Daniels were charged with robbing the First National Bank in South Holland, Illinois on August 2, 2005, while Count II charged Dean and Daniels with using a firearm in connection with that bank robbery. Count III charged Daniels and Jones with robbing the Bank of Lincolnwood on August 25, 2005, and Count IV charged Daniels and Jones with using a firearm in connection with that bank robbery. Count V charged Dean with robbing the First Bank in Chicago, Illinois, on December 20, 2005, and Count VI charged Dean with using a firearm during that robbery.

Prior to trial, Dean moved to sever his case from his two co-defendants. The government opposed the motion, arguing that joinder was appropriate under Rule 8(b) because "the three defendants in this case all participated in a 'same series of acts or transactions'-a spree of violent bank robberies involving the same modus operandi and the same crew of individuals." In making this argument, the government noted that "[t]he evidence at trial will show that the three defendants in this case were part of a crew of bank robbers … . " The government explained that there were several others involved in the charged bank robberies, including Maurice Wilbon, Marcus Moore, and LaChaun Vance. According to the government, Moore had participated in the August 2, 2005, bank robbery with Dean and Daniels and the December 20 robbery with Dean. Moore later testified at Dean and Daniels' trial. Maurice Wilbon had also participated in the December 20 robbery with Dean and Moore and had previously been convicted by a jury; he did not cooperate with the government. LaChaun Vance had participated in the August 25, 2005, bank robbery with Daniels and Jones and would also later testify at Dean and Daniels' trial. The district court denied Dean's motion to sever "because they were allegedly perpetrated by the same group of individuals and because [the crimes] were allegedly perpetrated in the same manner." Dean renewed the motion two times, but the district court also denied the subsequent motions.

Prior to trial Jones pleaded guilty. Dean and Daniels were then tried jointly, although Daniels was not physically present in the courtroom because the district court barred him based on his pretrial conduct and his refusal to promise the court that he would behave appropriately during the trial. Over the course of several days, the jury heard from Moore and Vance, as well as the victims of the robberies and the investigating officers.

On September 21, 2012, the jury returned a guilty verdict on Counts I and II against Dean and Daniels related to the August 2, 2005, robbery and gun charges; against Daniels on Counts III and IV related to the August 25, 2005, robbery and gun charges; and against Dean on Count V, related to the December 20, 2005, robbery. The jury acquitted Dean on the gun charge in Count VI. The jury was polled and each juror agreed with the verdict. However, a juror later informed the court that she had felt bullied and wanted to change her vote. The Court Security Officer ("CSO") assigned to the jury also informed Daniels' attorney that he had observed the juror in the hallway outside the jury room and that she had complained of having a panic attack. Daniels and Dean filed motions for a mistrial and requested the district court to inquire further of the juror. The district court concluded that the juror merely expressed concerns related to internal deliberation and that was not appropriate for further inquiry. However, the district court questioned the CSO further and learned that the juror had only left the deliberation room after the jury had reached its verdict. Accordingly, the district court denied the motions for a mistrial.

Daniels and Dean appeal, presenting a host of issues, including: 1) the joinder of Dean and Daniels' case; 2) the exclusion of Daniels from trial; 3) the admissibility of several pieces of evidence; and 4) the court's refusal to question the juror further concerning her "bullying" comments and her absence from the jury room. These questions require a fact-intensive analysis and accordingly, to avoid redundancy, we recount below additional details as necessary.

II.

A. Joinder

On appeal, Dean and Daniels first argue their offenses were improperly joined under Fed. R. Crim. P. 8(b), which provides that joinder of two or more defendants is appropriate "if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed. R. Crim. P. 8(b). "We review a Rule 8 determination de novo." United States v. White, 737 F.3d 1121, 1132 (7th Cir. 2013).

The government argues that joinder under Rule 8(b) was appropriate because Dean and Daniels were part of a crew of bank robbers and all of the charges were part of the same series of acts or transactions. The problem for the government, though, is that the indictment did not allege such a theory and in assessing the propriety of joinder, we look "solely to the allegations in the indictment." White, 737 F.3d at 1132. In this case, the indictment merely charged three separate bank robberies and three related firearm offenses. Counts I and II charged Dean and Daniels with bank robbery and the related firearm offense and were properly joined. But Counts III and IV charged Daniels and Jones, but not Dean, with bank robbery and gun charges related to the Bank of Lincolnwood robbery. Counts V and VI charged Dean, but not Daniels, with robbing the First Bank in Chicago and the related firearm offense.

In response, the government stresses that under Rule 8(b) "the defendants need not be charged in every count, nor must they be charged with the same crimes." White, 737 F.3d at 1132; see also Fed. R. Crim. P. 8(b). While it is true that the defendants in a joint trial do not need to be charged in every count, or with the same crimes, where multiple defendants are charged all of the counts must be related to the same common plan or scheme. United States v. Velasquez, 772 F.2d 1348, 1352–53 (7th Cir. 1985). Here, the indictment did not charge a conspiracy, or even separate conspiracies. Id. at 1353 ("The indictment need not charge a single overarching conspiracy, provided the separate conspiracies it charges arise from a common plan or scheme and so could alternatively have been charged as a single conspiracy."). Nor did it charge that Dean, Daniels, and others acted as a crew of bank robbers, or allege any facts indicating that they robbed the various banks as part of a common plan or scheme. Rather, the indictment alleged three separate bank robberies (and the related firearm counts) against different combinations of defendants. These allegations are insufficient to support joinder under Rule 8(b). See Velasquez, 772 F.2d at 1353 (holding there was misjoinder of a heroin charge where the indictment did not relate that charge "to any of the charges against the other defendants named in the indictment … ").

While Counts III–VI of the indictment misjoined Dean and Daniels, "an error involving misjoinder 'affects substantial rights' and requires reversal only if the misjoinder results in actual prejudice because it 'had substantial and injurious effect or influence in determining the jury's verdict.'" United States v. Lane, 474 U.S. 438, 449 (1986) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In determining whether the misjoinder had a substantial and injurious effect on the jury, courts look to "the presence of instructions requiring the jury to consider each defendant separately, the likelihood that evidence relating to the misjoined count would have been admitted in a separate trial and the [strength of the] evidence of the defendant's guilt in [determining whether] the misjoinder [is] harmless." United States v. Diaz, 876 F.2d 1344, 1356 (7th Cir. 1989) (citing Lane, 474 U.S. at 450). With these factors in mind, we now explore in more depth the evidence presented at the joint trial of Dean and Daniels.

August 2, 2005 Robbery

A jury convicted Dean and Daniels of robbing the First National Bank in Holland, Illinois on August 2, 2005, and with using a firearm in connection with that bank robbery. The trial evidence of each defendant's guilt on these charges was overwhelming. The jury heard testimony from the supervisor who was working at the bank during the robbery. She...

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