U.S. v. Hill

• Decision Date: 31 December 2008
• Docket Number: No. 07-3341.,07-3341.
• Citation: 552 F.3d 541
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eddie HILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

552 F.3d 541

UNITED STATES of America, Plaintiff-Appellee, v. Eddie HILL, Defendant-Appellant.

No. 07-3341.

United States Court of Appeals, Seventh Circuit.

Argued September 8, 2008.

Decided December 31, 2008.

Michael Ferrara (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Daniel Joseph Neppl, Rachel Warnick Petty (argued), Sidley Austin, Chicago, IL, for Defendant-Appellant.

Before POSNER, KANNE, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Eddie Hill was indicted for two Chicago-area bank robberies, one occurring in 2002 and the other in 2004. The four-count indictment also included two corresponding counts of possessing a firearm during the commission of a crime of violence related to each of the robberies. A jury found Hill guilty of the charges associated with the 2004 robbery but was unable to reach a verdict on the 2002 robbery and the related firearm count. The district judge accepted the verdicts on the 2004 counts and declared a mistrial on the other two counts. Rather than proceeding with an immediate retrial of the 2002 charges, the court held a sentencing hearing on the 2004 counts, which resulted in a sentence of imprisonment of 360 months for Hill. Hill argues in this appeal that his convictions should be reversed on two grounds— the jury selection process and the admission of evidence documenting his purchase of an S-Type Jaguar shortly after the 2002 robbery.

I. Background¹

Eddie Hill, his brother Michael, Cornelius Price, and Cleve Jackson planned to rob a bank in the fall of 2002, or at least Jackson so testified as a witness for the government during trial. According to Jackson, this group drove to the First Security Federal Savings Bank in Chicago the morning of October 2, 2002. Jackson's role was to be the lookout, Michael was the getaway driver, and Price and Hill performed the robbery. Jackson watched as Price and Hill accosted a bank employee who was unlocking the outer door of the bank. The bank employee testified that two men rushed up to him while he was opening the door and pressed a gun against his back. They forced him to turn off the alarm and put cash from the vault into a laundry bag. The men escaped from the bank through a back door with approximately $151,000.

In December 2004, Hill and Jackson planned to rob another bank, this time with two other cohorts, Vincent Hamilton and Lavonas Troupe. During this venture, Hill was stationed as the lookout, Jackson and Troupe performed the robbery, and Hamilton was the getaway driver. Jackson and Troupe approached two bank employees as they were entering the North Community Bank in Chicago. Jackson pointed a gun at the employees and forced them to give the men access to the vault and turn off the alarm. Jackson held a gun to the head of an employee as she opened a safe within the vault. Jackson and Troupe escaped into the getaway van through an alley behind the bank with approximately $119,000. This time, however, the robbers were not so lucky, as two witnesses observed Jackson and Troupe pushing the employees into the bank. They called the police, who arrived on the scene just as Hamilton was driving away. The witnesses, who were waiting across the street at a gas station, pointed the police in the direction of the getaway van and pursuit was quickly underway. The police chase ended, as they often do, when the getaway van crashed into a pole. Jackson and Troupe attempted to flee on foot—and ran straight into an area enclosed by a fence. All three men were arrested. Later, Jackson's sister (who was also Troupe's girlfriend) recorded a conversation with Hill in which he described his involvement in the robbery as the lookout.

Hill, Michael, and Price were charged in connection with the 2002 robbery. Price was convicted of bank robbery and possessing a firearm during the commission of a crime of violence. Hill and Michael were tried together, and the jury was unable to reach a verdict as to the counts against either of them arising from this robbery. Michael later pled guilty to the lesser charge of bank larceny for this offense.

Hill, Jackson, Hamilton, and Troupe were charged in connection with the 2004 robbery. Jackson and Troupe pled guilty to the robbery and possessing a firearm during the commission of a crime of violence. Hamilton was tried separately from the Hill brothers, and like Eddie Hill, was convicted of the 2004 bank robbery and possessing a firearm during the commission of a crime of violence. This appeal involves only Eddie Hill.

II. Jury Selection

Hill argues that the district court violated the procedure used for peremptory strikes and selecting alternate jurors, which left him unable to properly cure bias that remained undiscovered because of an inadequate voir dire. Federal Rule of Criminal Procedure 24 sets out the process for exercising peremptory strikes and selecting alternate jurors. For a felony charge (i.e., a crime punishable by imprisonment for more than a year), the government has six peremptory challenges and the defense (either a defendant, if tried alone, or defendants, if tried jointly) has ten peremptory challenges. Fed. R.Crim.P. 24(b)(2). The court can impanel up to six alternate jurors, who must replace jurors in the same sequence in which the alternates were selected. Fed. R.Crim.P. 24(c)(1)-(2). When one or two alternate jurors are empaneled, one additional peremptory challenge is permitted (and more if additional alternate jurors are to be selected). Fed. R. Crim P. 24(c)(4).

In United States v. Mendoza, 510 F.3d 749, 753 (7th Cir.2007), we noted that it was the usual practice of a particular district court judge to seat sixteen jurors to hear the evidence presented and then randomly select four individuals to be alternates after the presentation of evidence. Though we acknowledged there were some benefits to proceeding in that manner, we held that deviation from Rule 24 was not within the sound discretion of the district court, and we asked the court to discontinue its practice. Id.; see also United States v. Delgado, 350 F.3d 520, 524 (6th Cir.2003) ("Federal rules of procedure should not, of course, be disregarded by courts any more than by litigants."). We concluded that the error was not reversible because the defendant did not demonstrate that the error affected his substantial rights by showing, for example, that the jury was not impartial. Mendoza, 510 F.3d at 754.

The trial in this case tool place several months before the release of our opinion in Mendoza, so neither the trial judge nor counsel had the benefit of the Mendoza admonition. Consequently, the prosecutor and Hill's attorney agreed to a procedure for jury selection (which also varied from the strictures of Rule 24) and suggested it to the judge.

MR. POPE [Assistant U.S. Attorney]: I have spoken with defense counsel, and what we would propose to the Court is that ... the government be allotted 8 peremptory challenges, the defense be allotted 13 peremptory challenges. That is for both the actual jury and then the alternate jurors, all of which [are] to be used at once not reserving the one and one as suggested by the rules. And I also would suggest that we just have two alternate jurors in this case given that we're likely to have four, maybe five days of trial in this case.

THE COURT: Now, which jurors will be—since we're going to do it that way, which jurors will be the alternates?

MR. POPE: What I would propose, Your Honor, is given how you select yours, it would be the last jurors on what, you know, is termed the judge's list. Whoever jurors 13 and 14 are on that list as you count through, that those would be the alternate jurors.

MR. WILLIS [Michael's Hill's Attorney]: I agree with [that].

MR. HUNTER [Eddie Hill's Attorney]: I agree as well.

Accordingly, this agreed procedure was used. The government concedes that the court erred by allowing this method of exercising peremptory strikes, but it contends that Hill has waived any error by affirmatively agreeing to the method. Hill argues that the error is of a type that cannot be waived, and he urges us to review for plain error. As we have often explained, a waiver is a knowing and intentional relinquishment of a right, and forfeiture is an unintentional relinquishment. United States v. Knox, 540 F.3d 708, 713 (7th Cir.2008). Waiver precludes appellate review, but forfeiture allows us to review for plain error. Id.

In Mendoza, we reviewed for plain error because there was no indication that the defendant had affirmatively agreed to the error. Because Hill, through his counsel, unequivocally agreed to the procedure used in this case, Hill instead suggests that compliance with Rule 24 is not waivable. He offers the analogy of the right to a unanimous jury, which is both constitutionally protected and part of the Federal Rules of Criminal Procedure. United States v. Fawley, 137 F.3d 458, 470 (7th Cir.1998); Fed.R.Crim.P. 31(a). His analogy is inapt. A defendant's willing divergence from the proper method used to select jurors is quite different from allowing a defendant to risk his liberty through a verdict that is not unanimous. Hill suggests that because we stated in Mendoza that the district court did not have discretion to re-write the rules, surely the parties cannot be entitled to craft their own rules either. Indeed, the parties are not entitled to craft their own rules. But where the district court has erred by allowing the parties to diverge from the selection procedure in Rule 24, the defendant should not be entitled to receive the benefit of a new trial for a procedural error that he helped to create.

Even if we were to treat this as a case of forfeiture and review for plain error, Hill would not prevail. To reverse for plain error, we must find that Hill established a clear error that affected his substantial rights and impacted the fairness, integrity, or public reputation of the judicial...