U.S. v. Nolan, 87-2685

• Decision Date: 24 August 1990
• Docket Number: No. 87-2685,87-2685
• Parties: 31 Fed. R. Evid. Serv. 36 UNITED STATES of America, Plaintiff-Appellee, v. Phillip L. NOLAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1553

910 F.2d 1553

31 Fed. R. Evid. Serv. 36

UNITED STATES of America, Plaintiff-Appellee, v. Phillip L. NOLAN, Defendant-Appellant.

No. 87-2685.

United States Court of Appeals Seventh Circuit.

Argued April 10, 1990.

Decided Aug. 24, 1990.

Eric J. Klumb, Patricia J. Gorence, Francis D. Schmitz, Stephen J. Liccione, Ann M. Kisting, Asst. U.S. Attys., Office of the U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Richard C. Moenning, Chicago, Ill., for defendant-appellant.

Before CUDAHY, COFFEY and MANION, Circuit Judges.

MANION, Circuit Judge.

A jury convicted Phillip Nolan of entering a federally-insured savings and loan with the intent to commit larceny, in violation of 18 U.S.C. Sec. 2113(a). Nolan appeals, and we affirm.

I.

On the morning of October 6, 1986, Linda Carmody and Vicky Komans, tellers at the Marquette Savings & Loan ("the bank" or "Marquette Savings") in Milwaukee noticed three young black men--whom they later identified in court as Nolan and co-defendants Archie Gill and Jeffrey Johnson--park their car in a lot behind the bank. This struck Komans as unusual because customers very rarely used this lot. Besides, the three men did not park between the parallel lines; instead, they parked in an unusual backward position with the car facing out of instead of into the lot. As a precautionary measure Komans copied the license number.

The men entered the bank, walked up to Carmody's teller station, and asked her whether "Ivory Daniels" worked there. He did not. The men then asked Carmody to make change for a $20 bill. She refused. The men approached Komans' teller station and asked her for change. Komans replied she could make change, and Gill placed a $20 bill on the counter. When Komans opened her cash drawer, Johnson reached around the teller station and grabbed approximately $360 from the drawer. The three men then quickly fled the bank and drove away.

Immediately after the robbery, Komans and Carmody described the robbers to the FBI. Carmody stated that one of the men wore a blue, satin-like jacket, bearing the logo "Dodgers" across the front. Carmody also stated that the man in the blue Dodgers jacket had a gap between his two front teeth. Komans had also noticed the Dodgers jacket; however, she did not tell the FBI that the man wearing that jacket had a gap between his teeth. Komans also viewed an array of seven photos immediately after the robbery. The array did not include photos of Nolan, Gill or Johnson, and Komans told the police that none of the men who robbed the bank were pictured in the array.

Komans, Carmody, and another witness did, however, identify Nolan (at least tentatively) before trial. On January 21, 1987, Komans and Carmody attended a lineup. Both tentatively identified Nolan, the only defendant present in the lineup. However, both requested the opportunity to see Nolan's teeth, because they remembered that one of the robbers had a large gap between his teeth. Police conducted the lineup a second time. Both Komans and Carmody noted on the cards they were given to record their identifications that the suspect they each had identified appeared to have a foreign object in his mouth to disguise the gap in his teeth. They also noted on their cards that they could be positive in their identifications if they could see Nolan's teeth. Police attempted to conduct a third lineup but Nolan refused to cooperate.

In May, FBI agent Daniel Craft separately visited Komans and Carmody to show them photographic arrays. The first array consisted of seven photos of similar-looking young black men, and included photographs of Johnson and Gill. Komans selected Johnson's photograph. Komans then asked Craft about the person she had identified at the lineup. Craft responded that he was not aware she had identified anybody but Komans told Craft she was positive of her identification but did not want to make a selection on her identification card until she could see the suspect's teeth. When Komans indicated she could identify the suspect again, Craft showed her a second array. This array consisted of 26 similarly posed photographs of young black men, and contained pictures of all three defendants. Komans again selected Johnson's picture. She continued to review the photographs, and selected Nolan's picture also, identifying him as the man with the gap in his teeth.

Craft also showed Carmody both arrays. Carmody picked Johnson's picture from the first array. She again identified Johnson, and also identified Nolan, from the second array.

Another witness, a customer present at the bank during the robbery, was able to identify only Gill in court. However, when police had showed her a photographic array in January 1987, she indicated that the person depicted in Nolan's photograph bore a resemblance to one of the robbers.

Besides the testimony from the eyewitnesses, the government presented testimony from Gregory Hall, a fellow inmate of Nolan's in the Milwaukee County Jail during late January 1987 (shortly after Komans and Carmody had viewed Nolan in the lineup). According to Hall, Nolan said that he had been in a lineup for a bank robbery but that he had disguised himself by putting some paper between his teeth. When asked whether Nolan had indicated whether he had committed the robbery for which he stood in the lineup, and which robbery that was, Hall responded that Nolan had "implicated" to him that he was responsible, and that Nolan mentioned the Marquette Savings and Loan. Hall also testified that Nolan talked about committing seventeen other robberies, each using a similar method: two or three people would enter a bank and ask a teller for change; while the teller was distracted, someone would leap over the counter and take money from the teller's drawer.

II.

The principal issue at trial was the identity of the three men who robbed the bank. The government's theory (which the jury must have accepted, having found all three defendants guilty) was that Nolan was the man with the gap in his teeth; Gill was the man with the blue Dodgers jacket; and Johnson was the third man. That is how Komans identified the three defendants at trial, and the government presented other evidence to support this theory. Nolan, however, points to one bit of evidence that did not surface at trial as the basis for his first argument for reversal. An affidavit by Agent Craft (appended to a criminal complaint charging Gill with the robbery) states that Archie Gill's sister had told a Milwaukee police detective that Gill had "a gap between his front teeth, as described by Carmody" (apparently, in the description she gave immediately after the robbery). Nolan alleges that the government deliberately suppressed Craft's affidavit, thus violating his right to due process.

The government's suppression of evidence favorable to an accused violates due process if that evidence is material. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963); United States v. Guerrero, 894 F.2d 261, 268 (7th Cir.1990). Evidence is material (at least in a case such as this where the government has not knowingly used perjured testimony) when there is a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Guerrero, 894 F.2d at 268 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985) (plurality opinion)); see also Bagley, 473 U.S. at 685, 105 S.Ct. at 3385 (White, J., concurring); United States v. Jackson, 780 F.2d 1305, 1309-10 (7th Cir.1986).

Nolan's argument falters at the start. Nolan (who is represented by a new attorney on appeal) did not present his suppression of evidence claim in the district court and has thus developed no factual record from which we could find that the government actually did suppress Craft's affidavit. There is no testimony from Nolan's trial counsel that the government did not make the affidavit available. There is no testimony from Craft or any other government agent that the FBI or U.S. Attorney refused (or even forgot) to turn over the affidavit. Nolan seems to argue (although his reasoning is difficult to follow) that if trial counsel had known about the affidavit he would have called Archie Gill's sister to testify because her testimony would have corroborated Carmody's initial description (that is, that the man who wore the Dodger jacket had a gap in his teeth) and would have tended to show that the man in the Dodger jacket and the man with the gapped teeth were really the same man--Gill. Therefore, it follows, the government must have suppressed Craft's affidavit.

This argument, however, is not sufficient to establish that the government suppressed Craft's affidavit. Nolan presents no evidence to dispute the government's assertion that it followed an "open file" policy in this case, making all law enforcement reports it possessed available to Nolan. Moreover, the fact that trial counsel did not call Gill's sister does not establish, or even make it probable, that the government suppressed the affidavit. Counsel may very well have known about Gill's sister but could have decided not to call her for any number of reasons: failure to cooperate; a change in her statement; a tactical decision that her testimony would not be useful or would be harmful. These conclusions are all speculation, but no more so than the conclusion that the government suppressed Craft's affidavit. Speculation is not sufficient to establish that the government has suppressed evidence. Cf. United States v. Driver, 798 F.2d 248, 251 (7th Cir.1986).

In any event, even assuming the government suppressed Craft's affidavit, Nolan loses because the affidavit was not material. The case against Nolan was strong. Carmody and Komans both positively identified Nolan from...