U.S. v. Carter, 04-2008.
| Decision Date | 10 June 2005 |
| Docket Number | No. 04-2008.,04-2008. |
| Citation | 410 F.3d 942 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Eddie R. CARTER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joel Hammerman (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Linda Amdur (argued), Chicago, IL, for Defendant-Appellant.
Before MANION, ROVNER, and SYKES, Circuit Judges.
A jury convicted Eddie Carter on two counts of bank robbery, 18 U.S.C. § 2113(a), and one count of brandishing a firearm in the commission of a bank robbery, 18 U.S.C. § 924(c)(1)(A)(ii). The district court sentenced Carter to 272 months of imprisonment. On appeal, Carter challenges three trial-related rulings by the district court as well as the sufficiency of the evidence against him on one of the bank robbery counts. Carter also appeals his sentence on each of the bank robbery counts. We affirm the conviction in all respects. As to the sentence, we order a limited remand in accordance with United States v. Paladino, 401 F.3d 471 (7th Cir.2005).
Two similar bank robberies are at the heart of this criminal case. The robber's identity and whether the same individual perpetrated each robbery were the central factual disputes at trial.
The first robbery occurred on September 1, 2001. A man entered the Firstar Bank located at 3610 North Kedzie Avenue in Chicago, Illinois. Seemingly upset about the length of the teller line, the man loudly and profanely complained about the wait. He then impatiently left the bank without transacting any business. Minutes later, the same man returned, pulling out a gun and ordering everyone to the floor. One astonished bank teller named Daniel Hernandez did not comply. Hernandez stood staring at the bank robber, who then pointed his gun directly at Hernandez and walked toward Hernandez. The robber then directly told Hernandez to get down. This time, Hernandez complied. The robber then jumped on and over the teller counter. Once over, the robber instructed Hernandez to open his two teller drawers. The robber then stole $2,884 from the drawers, hurdled back over the counter, and bolted out of the bank.
Outside the bank, Arsalan Syed witnessed a man dropping cash as the man raced out of the bank. Syed then observed the man hurry into a nearby car and speed away. Suspicious, Syed noted the car's license plate number and gave it to the police. Law enforcement officials did not immediately ascertain the identity of the bank robber.
The second robbery occurred on September 4, 2001. A man entered the First American Bank located at 2001 North Mannheim Road in Melrose Park, Illinois. He drew attention to himself by loudly asking for directions. After a customer gave him directions, he left the bank without transacting any business. About an hour later, the same man returned, attempting to disguise himself with a baseball cap and dark sunglasses. Carrying a black bag, he waited in the teller line, and, after reaching the front of the line, he approached a bank teller named Jennifer Velazquez. He told her that he wanted to make a withdrawal, pulled a gun out of his bag, pointed it at her, and said,
Velazquez did as the bank robber instructed. As she began withdrawing bundles of $20 bills, the robber turned toward the bank's customers and, while waving his gun, ordered everyone down. The bundles were marked with the bank's name, a branch number, and Velazquez's teller number. After Velazquez had placed the money into his bag, the robber demanded additional money from the adjacent teller's drawer. Unable to open the drawer herself, Velazquez proceeded to locate the other teller, Rosa Martinez, who was hiding in the vault in the back of the bank. Having climbed over the teller counter, the robber went into the vault. He pointed his gun directly at Martinez and forced her to move from the vault out into the teller area to open her drawer. After Martinez opened her drawer and gave the robber its contents, the robber leaped back over the counter and left the bank with $13,634.
Outside, the robber entered a car near the bank. As the robber fled the scene, the bank's manager, Manal Ramadan, reported the robbery to a police dispatcher. Ramadan described the robber and the getaway car. Not far from the bank, the police soon identified a car matching Ramadan's description of the getaway car. After the matching car had failed to stop at a red light, the police attempted to pull the car over, but a chase ensued. The car eventually smashed into a police barricade. The suspect attempted to flee on foot, but the police apprehended him within feet of the wreck.
At the crash scene, the police found a black bag full of money and two guns along with a cap and sunglasses matching the ones worn by the robber in the bank. The police took the suspect to a police station for questioning by FBI agents. There, the suspect—determined to be Eddie Carter—confessed to the robbery that had just occurred (September 4). In addition, Velazquez later identified Carter as the September 4 robber. Testing also revealed that shoe prints left by the robber on the teller counter matched the size, make, and model of the shoes that Carter was wearing at the time of his arrest.
Carter quickly became the FBI's prime suspect in the September 1 robbery. As with the September 4 robbery, shoe prints left by the robber jumping on and over the teller counter during the September 1 robbery matched the size, make, and model of the shoes that Carter was wearing at the time of his arrest. The FBI also determined that the license plate number on the September 1 getaway car matched a car owned by Carter's half-brother. Carter was in possession of that car from August 30 to September 3, 2001. Upon locating the car in question, the FBI discovered a crumpled piece of paper with the handwritten words, Further, the police found a "crack pipe" at the scene of the September 1 bank robbery. Laboratory analysis determined that DNA from saliva on the pipe matched Carter's DNA.
Additionally, the FBI asked Hernandez, an eyewitness to the September 1 robbery, to review a six-man photo array to identify the robber. This review took place on September 6, 2001, just days after the robbery. Hernandez did not identify the robber for the FBI at that juncture. On December 5, 2001, the FBI asked Hernandez to review a different six-man photo array. This time, Hernandez immediately identified Carter as the robber. He also indicated that he had identified Carter at the first showing but, in the wake of the traumatic robbery, he did not say so due to his fear of Carter.
Carter was charged with both robberies, and he went to trial on three counts. Count one charged Carter with bank robbery under 18 U.S.C. § 2113(a) and pertained to the September 1 robbery. Count two also charged Carter with bank robbery under § 2113(a) and concerned the September 4 robbery. Finally, count three charged Carter, pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), with brandishing a firearm during the September 4 robbery.
With respect to count one, Hernandez's identification of Carter as the September 1 robber was a key piece of the evidence supporting the government's case, and Carter attempted to nullify the identification in two ways. Carter first moved to suppress the identification as unreliable. Carter alternatively moved for the appointment of a memory expert to explain to the jury how Hernandez could have misidentified Carter. The district court denied each motion.
At trial, Carter testified in his own defense. His direct testimony was in narrative form, as opposed to questions and answers. When his narrative strayed into religious and philosophical observations, the government objected, and the district court instructed Carter to stick to matters relevant to the trial. After seven such warnings went unheeded, the district court limited Carter's testimony. According to Carter, the district court cut him off before he testified about the September 1 robbery.
The jury convicted Carter on each count. The district court, under the mandatory sentencing guidelines, imposed several enhancements based upon judge-found facts and sentenced Carter to 188 months on counts one and two, to be served concurrently. On count three, the district court sentenced Carter to 84 months, to be served consecutive to the other sentences. The result was a total imprisonment term of 272 months.
Carter appeals the district court's denial of his motion to suppress Hernandez's identification, the denial of his motion for an expert witness, and the limitation of his testimony. Further, with respect to count one, Carter challenges the sufficiency of the evidence against him. He also appeals his sentence on counts one and two; besides arguing that the district court erred in applying certain enhancements, Carter raises a Sixth Amendment challenge under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We will address each argument in turn.
Carter first argues that the district court should have suppressed Hernandez's identification of Carter as the September 1 bank robber. There are two aspects to this argument. Carter first contends that the photo array shown to Hernandez on September 6 was impermissibly suggestive as it unfairly attracted attention to Carter's photo. Carter then maintains that the faulty September 6 array infected the entire identification procedure and that, as a consequence, Hernandez's identification of Carter from the array of photos presented on December 5 was unreliable. Carter therefore argues that the admission of Hernandez's identification deprived him of a fair trial.
Review is de novo "with due deference to the [district]...
To continue reading
Request your trial
-
Cage v. City of Chi.
...sought to challenge the reliability of the eyewitness identifications supporting the charges against them. See United States v. Carter, 410 F.3d 942, 951 (7th Cir.2005) (district court did not abuse its discretion when excluding eyewitness identification expert who “opine[d] about factors t......
-
State v. Martinez
...array used at the sheriff's office to identify Defendant herein—is not unconstitutional per se. Id. ; see, e.g. , United States v. Carter , 410 F.3d 942, 948 (7th Cir. 2005) ("Six is a sufficient number of photos for such a line-up."); United States v. Rosa , 11 F.3d 315, 330 (2d Cir. 1993)......
-
Phillips v. Allen
...sufficient. See, e.g. United States v. Funches, 84 F.3d 249, 253 (7th Cir.1996) (five participants sufficient); United States v. Carter, 410 F.3d 942, 948 (7th Cir.2005) (“Six is a sufficient number of photos for such a line-up.”). There is no evidence in the record that Defendant Officer A......
-
United States v. Schiro
...suspect.” Even though our review of a district court's decision not to admit expert testimony is deferential, see United States v. Carter, 410 F.3d 942, 950 (7th Cir.2005), in my view the district court's refusal to admit Dr. Yarmey's testimony was a mistake. In recent years, courts have be......
-
Witness
...describe in narrative form an untrue story that he had told earlier was too broadly framed and was prejudicial. United States v. Carter , 410 F.3d 942, 951-52 (7th Cir. 2005). District court was not wrong in limiting a defendant’s testimony when defendant was warned seven times to stick to ......