U.S. v. Pucket, 03-3832.

• Decision Date: 22 April 2005
• Docket Number: No. 03-3832.,03-3832.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dawon D. PUCKETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 589

405 F.3d 589

UNITED STATES of America, Plaintiff-Appellee, v. Dawon D. PUCKETT, Defendant-Appellant.

No. 03-3832.

United States Court of Appeals, Seventh Circuit.

Argued May 26, 2004.

Decided April 22, 2005.

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

Paul Flynn (argued), Federal Defender Program, Rockford, IL, for Defendant-Appellant.

Before BAUER, POSNER and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

On July 18, 2002, Dawon Puckett was convicted before a jury of armed bank robbery, 18 U.S.C. § 2113(a) & (d), using a firearm during a violent crime, 18 U.S.C. § 924(c)(1)(A), and possession of 63 grams of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). He was sentenced to a period of confinement of 384 months to be followed by six years' supervised release and ordered to pay restitution in the amount of $27,674. On appeal, Puckett argues that his convictions should be reversed, alleging that the trial court erred in: 1) admitting evidence of his prior conviction for drug trafficking and thereby unfairly prejudicing the jury against him; and 2) refusing to instruct the jury on the lesser-included offense of simple possession. We affirm.

I. Background

On October 8, 2002, a branch office of the National City Bank in Rockford, Illinois, ("Bank") was robbed at gunpoint by a man described as wearing a striped "Jamaican-style" hat, fake dreadlocks, beard and moustache, and dark glasses. The armed robber, whose image was captured on the Bank's surveillance cameras, entered the Bank at about 2 p.m., threatened the Bank's employees and various customers with his weapon, and ordered the tellers to fill the two pillowcases he handed them with money. He also warned the tellers that if they included any "dye packs" with the stacks of currency, he would return and kill them. The armed robber then exited the Bank with some $27,000 as proceeds of the robbery, entered a dark-colored, late model Ford Expedition sports utility vehicle ("SUV"), and drove away in the direction of Levings Lake Park, a public recreation area located not far from the Bank.

Detectives from the Rockford Police Department and FBI agents were called to the scene and proceeded to investigate the crime scene and interview bank personnel as well as members of the public and the tellers whom the robber had threatened during the heist. The suspect was described as a black male in his mid 20's, approximately six-foot tall and weighing about 150 pounds. The witnesses also described the robber's disguise — his "Jamaican-style" hat, fake dread-locks, moustache and beard, and dark glasses — and furthermore informed the detectives that the robber had duct tape wrapped around his fingertips. The tellers informed investigators that the offender had fled in a dark colored Ford Expedition in the direction of Levings Lake Park, and in addition supplied the officers with a partial license plate number on the vehicle. Based on this information, the Rockford Police Department issued an all points bulletin for the SUV and its driver. A Rockford patrol officer heard the bulletin and pursued the vehicle to Levings Lake Park, where he located the vehicle parked near a picnic area, unoccupied, and after investigating, determined the vehicle to have been the stolen Ford Expedition and seized it.

Having the vehicle in custody believed to have been used in the robbery, but unable to locate the robbery suspect, the Rockford Police Department issued a press release containing a general description of the wanted suspect and sought the community's help in capturing him. The press release contained few specific details of the robbery and how it was carried out and it did not make any mention of the robber's disguise, the fact that he used duct tape on his fingertips, or that he had threatened the Bank's tellers.

On October 11, 2002, three days after the robbery, the Rockford police received information from one Antwon Flint, who identified the robbery suspect as Dawon Puckett. Flint told the police that he had been playing cards with Puckett on the evening of October 8, 2002 (the date of the robbery), and that Puckett had related to him that he had committed the armed robbery, supplying Flint with some of the details concerning the crime that were previously unknown to the public, e.g., that he had worn fake dreadlocks, had used a Ford SUV as the getaway vehicle, and that he had parked the vehicle nearby at Levings Lake Park. Flint also relayed to the police that Puckett had displayed a large amount of cash, "at least $27,000," and informed them that Puckett was currently living in the basement of his grandmother's house, at 1916 Knowlton Street in Rockford, a location one to two minutes walking distance from where the stolen getaway vehicle was found abandoned in the Levings Lake Park area. In addition, the police received information from one Juan Soto, the owner of the Ford Expedition, that a SUV matching the description of the one used in the robbery had been taken by his girlfriend, without his permission, earlier in the day. Soto also told investigators that he had seen an individual matching Puckett's description driving the vehicle, without his consent, in the parking lot of a Kmart located adjacent to the National City Bank just hours before the Bank was robbed.¹

Pursuant to this information, the Rockford police obtained a photograph of Puckett from their files and arranged an array with the photos of five other individuals similar in appearance, weight, age, height and complexion. The detectives then took this photo array to the Bank, displayed it to two of the tellers present during the robbery, and both tellers identified Puckett as the armed individual who had committed the robbery on the date in question, October 8, 2002. Based on this information, the Rockford Police Department and the FBI placed Puckett's grandmother's house (1916 Knowlton Street) under surveillance. Shortly thereafter, the officers observed Puckett exit the house and enter a vehicle owned and operated by a female (Debra Harris). Rockford police stopped the car after a short distance and arrested Puckett on suspicion of bank robbery. Puckett was handcuffed and searched, and $1,294.76 in cash was discovered in the pocket of his trousers. After receiving permission from Harris, the vehicle's owner and driver, officers proceeded to search the interior of the car and discovered and confiscated a plastic baggie containing what appeared to be a large stash of powder cocaine, in the glove compartment. When questioned about the narcotics, Puckett admitted that the drugs belonged to him, and stated that he knew the cocaine weighed two-and-a-quarter ounces (63 grams) because he had recently "measured it exactly."

Puckett was subsequently taken to the Public Safety Building in Rockford, Illinois, advised of his Miranda rights, and interviewed by Rockford police detectives. When questioned concerning his whereabouts on the day of the bank robbery, Puckett claimed he was getting a haircut at the time of the bank robbery, although he later changed this story when he was unable to provide the name of the barbershop he had supposedly visited for the haircut. Instead, Puckett explained that he had obtained the haircut two days later, during a "shopping spree" on Michigan Avenue in Chicago, a trip he claimed was funded by a workman's compensation insurance settlement. During this interview Puckett again admitted that the 63 grams of cocaine found in the glovebox of Harris's vehicle at the time of his arrest belonged to him, but then refused to cooperate and provide any information concerning the armed robbery. However, Puckett did state that he would "consider" cooperating if detectives were to tell him what kind of sentence he was facing. The detectives, in response, informed the suspect that neither the details of a potential sentence nor a "deal" would be discussed until he fully disclosed his involvement in the bank robbery. Puckett refused and, with the questioning at an impasse, Puckett was taken to a holding cell to await his subsequent transfer to the Ogle County Jail for processing and a decision on formal charges against him relating to the armed robbery.

Shortly after, Puckett was moved to the county jail and he was assigned to share a cell with Kenneth Johnson, an associate of Puckett's from the Rockford area. During a series of conversations, Puckett subsequently divulged various details of the robbery to Johnson including information and facts about the crime that had not been disclosed to the general public. Specifically, Puckett told Johnson that he had duct-taped his fingertips before the robbery to avoid leaving fingerprints as well as recounting the fact that he warned the bank tellers not to put dye packs in the pillow-cases or he would return and kill them. Puckett also stated that he "just did what he had to do" because he was broke, and requested Johnson's help to contact his brother and instruct him to move the proceeds of the robbery from the place he had hidden it (the cold-air duct in the basement of his grandmother's house) to a different (undisclosed) location. Johnson later relayed all of this information to the police in exchange for a lighter sentence on drug charges that he was facing. Acting on Johnson's information, the Rockford officers searched the basement of Puckett's grandmother's house, with her consent. The officers did not find the cash proceeds of the robbery in the air duct, although they did discover several bags of new clothes and shoes in the area of the basement where Puckett had been staying, and also located a loaded .22 caliber handgun between the mattress and the boxsprings of Puckett's bed.²

Nevertheless, based on the evidence that the Rockford police and the FBI gathered and later submitted to a grand jury, Puckett was indicted on one count of armed bank robbery, 18...