U.S. v. Foster

• Decision Date: 21 July 2011
• Docket Number: No. 10–3198.,10–3198.
• Citation: 85 Fed. R. Evid. Serv. 1147,652 F.3d 776
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Napoleon FOSTER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

652 F.3d 776

85 Fed. R. Evid. Serv. 1147

UNITED STATES of America, Plaintiff–Appellee,

v.Napoleon FOSTER, Defendant–Appellant.

No. 10–3198.

United States Court of Appeals, Seventh Circuit.

Argued April 7, 2011.Decided July 21, 2011.

Andrianna D. Kastanek (argued), Daniel E. May, Attorneys, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Ralph J. Schindler, Jr. (argued), Attorney, Chicago, IL, for Defendant–Appellant.Before CUDAHY, MANION, and HAMILTON, Circuit Judges.HAMILTON, Circuit Judge.

Appellant Napoleon Foster was found guilty of orchestrating an armed robbery of a credit union and related firearms charges. He was sentenced to 284 months in prison. On appeal, Foster raises numerous challenges to his convictions and sentence. First, he argues that his jury was not selected in the manner required by Federal Rule of Criminal Procedure 24. He then argues that inadmissible propensity evidence and several hearsay statements were admitted against him. Foster also argues that the evidence was not sufficient to show that the credit union was federally insured at the time of the robbery, and that he could not be convicted as a felon in possession of a firearm because Illinois had allegedly restored his civil rights after his last term of imprisonment. Finally, Foster contends that he should not have been sentenced as an armed career criminal. Finding no reversible error, we affirm Foster's convictions and sentence.

I. The Robbery and Factual Background

On January 19, 2006, two armed and masked people robbed the Acme Continental Credit Union in Riverdale, Illinois. They made off with about $250,000 in cash, aided by an accomplice who drove their getaway car. Law enforcement eventually identified Asia Hill and Charles Anderson as the masked robbers and appellant Napoleon Foster as their getaway driver. Foster was arrested and charged with armed robbery of a financial institution in violation of 18 U.S.C. § 2113(a) & (d), possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A), and possession of a firearm after being convicted of a felony in violation of 18 U.S.C. § 922(g)(1).

Asia Hill was the prosecution's star witness at trial, having agreed to testify against Foster in exchange for leniency. According to Hill, Foster had suggested that they rob the credit union because he had done business there for some time and was familiar with the building layout and the employees. Foster knew how many employees worked in the credit union and who carried the vault key. He knew that the credit union was unguarded and that one employee owned a truck ideally suited for a getaway. Hill also testified that Foster had agreed to provide two firearms for use in the robbery.

Foster did not want to go inside the credit union himself. He feared that he might be recognized. He decided that he and Hill should recruit two additional accomplices to carry out the robbery. Hill recruited her friend Charles Anderson, a man she described as “a small-time drug dealer” in need of money, who in turn recruited his friend Randy Williams.

Initially, the plan was for Anderson and Williams to go inside the credit union while Hill and Foster waited behind in a getaway car that Williams agreed to provide. On the day of the robbery, however, Williams never showed up. Hill agreed to go into the credit union in his place. Foster then drove Hill and Anderson to the credit union, dropped them off, and drove a short distance away to wait for them. Anderson and Hill wore masks. Hill carried a .38 revolver, and Anderson had a sawed-off shotgun, both provided by Foster. Once inside the credit union, Hill had a teller empty the cash drawers while Anderson emptied the vault. After they had taken all the money they could carry, they fled in a car stolen from one of the credit union's tellers.

Hill and Anderson met up with Foster a short distance from the credit union and abandoned the stolen car. Foster then drove them back to Hill's apartment in Indiana to count the money from the heist. Out of approximately $250,000 stolen from the credit union, Hill testified, Foster took the largest share of $100,000. Hill and Anderson split what remained.

Anderson also testified pursuant to a plea agreement. Anderson corroborated much of Hill's previous testimony, admitting that he and Hill were the masked robbers and claiming that Foster had provided the guns, the inside information about the credit union, and the getaway car. Because Foster had planned the robbery, Anderson testified, he took $100,000 of the stolen money for himself while Anderson and Hill took smaller shares.

Foster did not testify in his defense. The jury convicted him on all three counts. At sentencing, the district court concluded that Foster's past criminal record qualified him as an armed career criminal and sentenced him to 284 months in prison. This appeal followed.

II. Jury Selection—Federal Rule of Criminal Procedure 24

Foster's primary argument on appeal is that the jury selection process violated Rule 24 of the Federal Rules of Criminal Procedure. After the entire jury panel was questioned, the parties exercised their challenges for cause against the entire panel. The parties then exercised their peremptory challenges, including a number of extra challenges granted by the district court, against the remaining members of the panel as a whole. Twelve remaining members of the panel were then selected at random and seated on the jury, and two more were selected at random and seated as alternates.

On appeal, Foster raises two distinct issues. First, Foster and the government agree that the district court's process for selecting the alternate jurors failed to comply with Rule 24(c)(4) of the Federal Rules of Criminal Procedure. That rule provides additional peremptory challenges to be exercised specifically against prospective alternate jurors, the number of which is based on the number of alternates the court intends to seat. Fed.R.Crim.P. 24(c)(4). “These additional challenges may be used only to remove alternate jurors.” Id. (emphasis added).

Although a district court has substantial discretion regarding how it conducts the jury selection process, compliance with the explicit requirements of Rule 24 is not a matter entrusted to the court's discretion. United States v. Mendoza, 510 F.3d 749, 753 (7th Cir.2007), citing United States v. Delgado, 350 F.3d 520, 524 (6th Cir.2003). Here, the district court granted the parties extra peremptory challenges for use against the entire panel, but did not provide the required additional challenges that could be used only to remove alternate jurors. See United States v. Patterson, 215 F.3d 776, 780 (7th Cir.2000) (finding same district judge's method of selecting alternate jurors violated Rule 24(c), but finding error harmless), vacated in part on other grounds, 531 U.S. 1033, 121 S.Ct. 621, 148 L.Ed.2d 531 (2000).

The second jury selection issue challenges the district court's decision to have the parties exercise their peremptory challenges without knowing the seating priority of the panel members. Foster complains that the random selection of the panel members who had survived the for-cause and peremptory challenges diluted his ability to maximize the value of his peremptory challenges. If he had known the order in which the panel members would be seated on the jury, he argues, he could have focused his peremptory challenges on those jurors with the highest seating priorities and whose impartiality he doubted.

The text of Rule 24 provides for questioning of prospective jurors and for the exercise of peremptory challenges. With the exception of the separate peremptory challenges for alternate jurors, however, Rule 24 leaves a good deal of discretion to a district court as to the details. At the most basic level, Rule 24 does not specify a choice between the “struck jury” or “jury box” systems for selecting juries and exercising peremptory challenges, or for choosing among the many variations on them. For a useful summary of the two major systems and the important variables in the details, see Roger Allan Ford, Modeling the Effects of Peremptory Challenges on Jury Selection and Jury Verdicts, 17 Geo. Mason L.Rev. 377, 383–87 (2010) (reviewing debate on different procedures, including available empirical evidence); Kathleen M. McKenna, Current Developments in Federal Civil Practice, 821 PLI/Lit. 581, 587–89 (2010). Each method has its supporters and detractors. Over the past generation, however, the ability to challenge an opponent's exercise of peremptory challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny has tilted the balance in favor of the struck jury system, which allows the court to evaluate all peremptory challenges before any struck jurors have been sent home.

Trial lawyers' and judges' opinions about the important variables in jury selection procedures are often firmly held. From the perspective of parties and their lawyers, a critical consideration is how much information they have about the effects of any specific peremptory challenge. How likely is it that a particular juror will be selected if not struck, or is that likelihood simply unknown? If that particular juror is struck, what is known about the likely replacement—is that possible replacement even more biased against the defendant than the person struck? See Ford, supra, at 387 (noting that whether jury pool is placed in a specific order before attorneys exercise their challenges is both “frequently discretionary” and important to jury selection outcomes). However important these details may be to the parties, the important thing for our purposes is that Rule 24 leaves these details of jury selection to the discretion of the district judge. We specifically rejected in Patterson the argument that the accused in a criminal case is entitled to...