U.S. v. Bomski

• Decision Date: 26 September 1997
• Docket Number: Nos. 96-3389,96-3858,s. 96-3389
• Citation: 125 F.3d 1115
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nicol BOMSKI, Brian Ferguson, and Latasha T. Conley, Defendants-Appellants. & 97-1795.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1115

125 F.3d 1115

UNITED STATES of America, Plaintiff-Appellee, v. Nicol BOMSKI, Brian Ferguson, and Latasha T. Conley Defendants-Appellants.

Nos. 96-3389, 96-3858 & 97-1795.

United States Court of Appeals Seventh Circuit.

Argued Sept. 12, 1997.

Decided Sept. 26, 1997.

Christian R. Larsen (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee in 96-3389, 96-3858 and 97-1795.

Thomas P. Schneider, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee in 97-1795.

Edward John Hunt (argued), Milwaukee, WI, for Nicol L. Bomski.

William J. Chandek (argued), Chandek & Associates, Brookfield, WI, for Brian Ferguson.

Martin E. Kohler, John C. Thomure, Jr. (argued), Kohler & Hart, Milwaukee, WI, for Latasha T. Conley.

Before CUMMINGS, EASTERBROOK, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Three convicted bank robbers appeal from their sentences. Brian Ferguson and Latasha Conley, two members of the trio, also contend that the evidence was insufficient to support the convictions; Nicol Bomski, the third defendant, pleaded guilty. We begin with the latter contention, which asks us to turn an unduly favorable jury instruction into outright victory.

Bomski testified before the grand jury that Conley and Ferguson recruited her to rob a bank and that the three planned to share the proceeds. They were unable to enjoy the fruits, however, because Bomski struck while FBI agents were watching local banks on a tip; she was arrested soon after she emerged with the loot. Bomski told the prosecutor that at trial she would invoke her privilege against compulsory self-incrimination and refuse to testify. The district judge granted an application for use immunity under 18 U.S.C. § 6002 and instructed Bomski to answer the questions. Her ensuing testimony exculpated both Conley and Ferguson of any illegal acts. The prosecutor then introduced Bomski's grand jury testimony under Fed. R. Evid. 801(d)(1), which says that a statement is not hearsay if "[t]he declarant testifies at the trial ... and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding". Bomski's testimony before the grand jury fits this exception to the hearsay rule and was admissible as substantive evidence. Yet at the end of the trial the judge told the jury:

Evidence that on some former occasion a witness made a statement inconsistent with his or her testimony in this case may be considered by you only in determining the credibility of a witness, and not to establish the truth of the matters contained in the prior statement.

This pattern instruction does not fit a situation such as the use of former testimony under Rule 801(d)(1)(A). It should not have been given in this case, but the judge did not notice the problem and neither side objected--the defense for obvious reasons, and the prosecutor because familiar instructions get overlooked. Now Conley and Ferguson tell us that this instruction entitles them to victory on the ground that the evidence is insufficient--for the standard is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt", Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original), and a jury willing to follow this instruction could not have found that they committed the crimes, defendants insist.

One potential response is that the instruction was so general that it would not have dissuaded a conscientious juror from concluding that Bomski's grand jury testimony--which had been introduced for its truth, and was argued by all parties as substantive evidence--could be considered properly. A second and more fundamental ground supports the verdicts, so we need not pursue the first. It is this: the evidence was sufficient, and it would be absurd to allow bank robbers to go free because an instruction erroneously favorable to them was given at trial. Defendants emphasize the word "rational" in the formulation we quoted from Jackson, but a jury can disregard an instruction without being irrational. "Disobedient" is not a synonym for "irrational." It is preferable to emphasize the word "any" in Jackson's formulation, as the Court itself did. We inquire not whether this jury should have found the evidence sufficient, but whether any jury could have done so. "Just as the standard ... does not permit a court to make its own subjective determination of guilt or innocence, it does not require scrutiny of the reasoning process actually used by the factfinder--if known." 443 U.S. at 320 n. 13, 99 S.Ct. at 2789 n. 13. The hypothetical and objective nature of the inquiry is reinforced by the remainder of the quotation in the preceding paragraph, which directs attention to the "elements of the offense" rather than to the issues framed by the instructions.

To see this, suppose the instructions had been unduly favorable to the prosecution. Bank robbery is taking a bank's property "by force and violence, or by intimidation". 18 U.S.C. § 2113(a). Suppose the instructions in this case had omitted the force, violence, or intimidation element, and suppose further that the evidence would not have supported a conclusion that the defendants used force, violence, or intimidation. (Suppose, in other words, that the defendants committed only theft from a bank, which may be accomplished by stealth. See 18 U.S.C. § 2113(b).) The defendants would be entitled to a reversal of this conviction notwithstanding the error in the instructions; the absence of an objection to the jury instructions does not bolster the quantity of evidence available, and the absence of evidence on an element of the offense would require reversal under the plain error doctrine. See Johnson v. United States, --- U.S. ----, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). To determine whether the evidence supports a conviction, an appellate court compares the proofs against the elements of the offense, not against the jury instructions. We ask whether a properly instructed jury rationally could have convicted, not whether an improperly instructed jury should have done so given its imperfect knowledge. So if the judge had told the jury in this case that only people over the age of 100 may be convicted of bank robbery, and the jury nonetheless returned guilty verdicts, we might doubt the jury's willingness to follow instructions, but we would not doubt the sufficiency of the evidence on the actual elements of the offense. Conley and Ferguson concede that a properly instructed jury could have found the evidence sufficient; that is that.

All three defendants believe that the judge should not have added two offense levels under U.S.S.G. § 2B3.1(b)(2)(F) for an "express threat of death". Bomski placed a bag on the counter and told the teller: "this is a bomb", followed by "give me all of your money". The judge thought that the reference to a bomb was an express threat of death--and although it may be difficult to see as an original matter how a statement such as "I have a bomb" or "I have a gun" is an express threat of death, we held in United States v. Hunn,...